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
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.

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.
By: Julie Gregg,

 Appeals Attorney.