PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 15-2909 _____________

REGINALD A. ROBERTS,

Appellant

v.

RISA VETRI FERMAN; COUNTY OF MONTGOMERY; JAMES MATTHEWS;

JOSEPH M. HOEFFEL, III; BRUCE L. CASTOR, JR.; OSCAR P. VANCE, Jr.; SAMUEL GALLEN; STEPHEN FORZATO; EDMUND JUSTICE;

CAROLYN T. CARLUCCIO; MARK BERNSTIEL; TONI LUTER, Sued Individually Held Liable Joint and

Severally _____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania District Court No. 2-09-cv-04895

District Judge: The Honorable Nitza I. Quiones Alejandro

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

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April 13, 2016

Before: AMBRO, SMITH, and KRAUSE, Circuit Judges

(Filed: June 17, 2016)

Brian M. Puricelli, Esq. Law Office of Brian Puricelli 2721 Pickertown Road Warrington, PA 18976 Counsel for Appellant Carol A. VanderWoude, Esq. Marshall Dennehey Warner Coleman & Goggin 18th Floor 2000 Market Street Suite 2300 Philadelphia, PA 19103 Counsel for Appellee

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OPINION _____________________

SMITH, Circuit Judge.

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The key question in this case is not an easy one. We must determine when dismissal for failure to comply with Rule 10 of the Federal Rules of Appellate Procedure is appropriate. In so doing, we also attempt to provide more structure to a narrow area of law that has been subject to confusion within this Circuit. The specific question we are confronted with is whether a district courts decision to dismiss a partys post-trial motion because that party chose not to attempt to recreate the trial record, despite being ordered to do so, was an abuse of discretion. We hold that it was not. We also hold that Appellants other claims of error lack merit. We will therefore affirm.

I.

Plaintiff Reginald Roberts, a former employee of Montgomery County, Pennsylvania, brought suit against Montgomery County and a number of its employees1 alleging that he suffered continual retaliation, discrimination and humiliation at work in violation of 1 In addition to the County, Defendants include Risa Vetri Ferman; James Matthews; Joseph M. Hoeffel, III; Bruce L. Castor, Jr.; Oscar P. Vance, Jr.; Samuel Gallen; Stephen Forzato; Edmund Justice; Carolyn T. Carluccio; Mark Bernstiel; and Toni Luter (collectively, Defendants).

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Title VII and his constitutional rights. Pl.s Am. Compl. 3, ECF No. 4. The complaint, as amended in January 2010, contains five counts, two of which, counts II and III, allege violations of 42 U.S.C. 1983 for retaliation against Roberts for his allegedly protected speech. Specifically, in count II, Roberts alleges that he was retaliated against by several County employees for seeking heart and lung benefits, filing employment discrimination charges, and testifying at a Fact Finding Conference before the Pennsylvania Human Relations Commission. Count III contains the same allegations but seeks to hold the County liable directly, based on Monell v. Department of Social Services of City of New York. 436 U.S. 658, 690 (1978) (Local governing bodies, therefore, can be sued directly under 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that bodys officers. (footnote omitted)). The case was originally assigned to Judge Savage, who granted in part and denied in part Defendants motion to dismiss on February 23, 2010. On March 31, 2010, the parties then agreed to have the matter referred in its entirety to a magistrate judge.

After briefing and oral argument, the magistrate judge granted in part and denied in part Defendants motion for summary judgment, further limiting the

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claims that would proceed to trial. Important for purposes of this appeal, the magistrate judge denied in part and granted in part summary judgment on counts II and III of the amended complaint. However, after alleging bias on the part of the magistrate judge, Roberts, on October 6, 2011, moved to revoke his consent to adjudication by a magistrate. Roberts petition to revoke consent was granted on January 4, 2012, and his motion for recusal based on alleged judicial bias was thus denied as moot. This case was then reassigned to Judge Savage, who scheduled an initial pre-trial conference and prepared the case for trial.

On February 21, 2012, Judge Savage held a final pre-trial conference at which he expressed concern about whether Roberts would be able to make out a proper Monell claim against the County based on the facts as then clearly presented. He also questioned whether the County could legally be held liable under Monell in light of a recent Pennsylvania Supreme Court decision regarding the division of authority between the County and the Commonwealth. With that in mind, Judge Savage asked the parties to submit supplemental briefing on the effect of the recent change in Pennsylvania law. As Roberts attorney noted, [i]f the law is changed, that would be a reason for reconsideration. Tr. of Final Pretrial Conference at 236, Roberts v. Ferman, No. 09-4895 (February 21, 2012).

At the final pre-trial hearing held the morning

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before voir dire, Judge Savage re-raised this issue and entertained the parties arguments. Ultimately, after considering the supplemental briefing, both sides oral arguments, and the magistrate judges opinion, Judge Savage granted summary judgment in favor of Defendants on both counts II and III, reversing the earlier denial by the magistrate judge. The case proceeded to trial on the remaining claims. Six days later, the jury rendered a verdict in favor of Defendants on all counts.

Roberts then filed a timely motion for a new trial or in the alternative for judgment notwithstanding the verdict. In this motion, Roberts made several general allegations of error, focusing primarily on the conduct of the trial judge. For example, Roberts claimed that [t]he Judge was not clear, consistent and/or fair when making rulings. The Judges conduct towards the Plaintiff showed contempt for the Plaintiff and disfavor toward Plaintiffs counsel. Pl.s Post Trial Mot. for New Trial 3, ECF No. 228. In addition, because Roberts again raised allegations of biasthis time by Judge Savagethe case was reassigned to Judge Quiones. It was then also discovered that four of the six days of the trial transcript had unfortunately been lost.2

2 Roberts on appeal notes that he was told by the Clerks Office that the court reporter had become ill and this caused what was at first believed to be just a delay in

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Upon learning that the trial record was incomplete, Judge Quiones granted Roberts motion for extraordinary relief and ordered the court reporting company to produce the transcript for this case. Even this order, however, ultimately failed to secure the transcripts. Several months later, and after several more unsuccessful attempts to obtain the trial transcripts, Judge Quiones denied Roberts second, nearly identical, motion for extraordinary relief that again sought to force the court reporting company to turn over the transcript. In a footnote, Judge Quiones concluded that granting another such motion would be futile, as the court had made numerous failed attempts to obtain the complete trial transcript.

Judge Quiones instead ordered the parties to recreate the record in compliance with Federal Rule of Appellate Procedure 10(c) so that she could rule on Roberts post-trial motion. Roberts, however, chose not to comply with this order, arguing that any attempt to do so would be useless, as the parties would not be able to agree on the contents of a 10(c) statement. Thus, over nine months after ordering the parties to comply with Rule 10(c), Judge Quiones was still without a record with which she could assess the merits of Roberts post-trial motion. Concluding, therefore, that Roberts failure obtaining the transcripts. Why the transcripts were never ultimately obtained remains unclear.

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to comply with Rule 10(c) constituted a failure to prosecute, Judge Quiones dismissed his motion. Roberts appealed. 3

II.

Before addressing the substance of Roberts arguments, we must address an argument raised by Defendants. They note that Roberts failed to include even the available portions of the trial and pre-trial transcripts in the record on appeal. This, Defendants argue, demonstrates a remarkable lack of diligence by Roberts and suggests that under Lehman Brothers 3 We have jurisdiction here under 28 U.S.C. 1291, as denial of Roberts post-judgment motion ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Catlin v. United States, 324 U.S. 229, 233 (1945). It is thus immediately appealable. In addition, because interlocutory orders such as partial grants of summary judgment merge with the final judgment, they can be challenged on appeal. Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 244 (3d Cir. 2013). Finally, [w]e review dismissal of a post-trial motion as a sanction for abuse of discretion, Knoll v. City of Allentown, 707 F.3d 406, 411 (3d Cir. 201