United States Court of Appeals
For the First Circuit
No. 01-1859
IN RE: CAMBRIDGE LITERARY PROPERTIES, LTD.,
Petitioner.
_____________________
Before
Bownes and Cyr, Senior Circuit Judges,
and Lynch, Circuit Judge.
JUDGMENT
Entered: November 20, 2001
Cambridge Literary Properties, Ltd. ("Cambridge") has filed
a petition for writ of mandamus asking this court to direct the
district court to approve a proffered statement, pursuant to
Fed. R. App. P. 10(c) ("Rule 10(c) Statement"). Mandamus is an
extraordinary remedy requiring "(1) a showing of some special
risk of irreparable harm, and (2) a demonstration of clear
entitlement to the relief requested, i.e., that the district
court's order is palpably erroneous." Bennett v. City of
Boston, 54 F.3d 18, 21 (1st Cir. 1995).
To the extent that the district court declined to approve
the Rule 10(c) Statement on the ground that, as a general
principle, Rule 10(c) does not apply to an informal pretrial
conference, that contention appears incorrect. See Athridge v.
Rivas, 141 F.3d 357 (D.C. Cir. 1998); see also Rogan v. Menino,
175 F.3d 75, 79 (1st Cir.) (discussing a Rule 10(c) statement
approved by a district court judge that recited what had been
said at an unrecorded chambers conference), cert. denied, 528
U.S. 1062 (1999); Barilaro v. Consolidated Rail Corp., 876 F.2d
260, 263 (1st Cir. 1989) (suggesting that appellant should have
utilized Rule 10(c) to memorialize what had occurred at a
pretrial conference). Nonetheless, this error, in and of
itself, does not entitle Cambridge to a writ of mandamus.
Unlike Athridge, in which the failure to resolve what had
occurred at the unrecorded conference precluded consideration of
a dispositive appellate issue, Cambridge has made no such
showing here. Cambridge's mandamus petition argues that,
contrary to the district court's contention, there is a material
dispute of fact regarding the activities of sales representative
Schwab on behalf of the defendants and that, at the unrecorded
conference, it sought leave to depose Schwab on these matters.
However, the district court determined that it lacked personal
jurisdiction over the defendants because Cambridge's cause of
action involves proof of its copyright claim and that cause of
action is not established by Cambridge's proffered evidence that
the defendants conducted business in Massachusetts. In other
words, the district court assumed that the defendants'
activities sufficed for the "transacting business" clause of the
long-arm statute but concluded that Cambridge had failed to
demonstrate that its cause of action arose from these business
activities. Cambridge's allegation that there is a dispute
about the scope and extent of Schwab's activities on behalf of
the defendants and its complaint that it was foreclosed at the
unrecorded conference from pursuing its deposition of Schwab
therefore appears off-point.
Similarly, Cambridge has not demonstrated how the district
court's refusal to approve its Rule 10(c) Statement prejudices
its presentation of a claim that the district court failed to
address its contention that the court had general, as well as
specific, personal jurisdiction.1 The Rule 10(c) Statement did
not add anything to the issue of general personal jurisdiction
when the district court, in fact, accepted, for purposes of its
decision, that the defendants' business contacts constituted the
transaction of business in Massachusetts.
Accordingly, because Cambridge has not shown that its
proffered Rule 10(c) Statement has relevance to its pending
appeal, it has not demonstrated "some special risk of
irreparable harm" and "palpable" error by the district court in
refusing to approve it.
The petition for writ of mandamus is denied.
By the Court:
Janice O’Neil, Acting Clerk.
1For purposes of disposing of this petition for writ of
mandamus, we assume, without deciding, that Cambridge's failure
to move for reconsideration after entry of the order of
dismissal did not constitute a waiver of this claim.
By: Julie Gregg,
Appeals Attorney.