1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court 

Northern District of California 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

ASPIC ENGINEERING AND 

CONSTRUCTION COMPANY, 

Plaintiff, 

v. 

ECC CENTCOM CONSTRUCTORS, LLC 

AND ECC INTERNATIONAL, LLC, 

Defendants.

Case No. 17-cv-0224-YGR 

ORDER GRANTING MOTION TO REQUIRE 

PLAINTIFF TO ORDER TRANSCRIPT 

 By way of background, on July 18, 2017, the Court granted defendants’ motion to vacate final 

arbitration award and denied plaintiff’s motion to confirm and correct the arbitration award. (Dkt. No. 

42.) Plaintiff filed a timely notice of appeal on July 26, 2017. (Dkt. No. 46.) Now before the Court is 

defendants’ motion to require plaintiff to order and pay for the transcript of this Court’s July 11, 2017 

hearing on those respective motions which defendants designated on appeal. (Dkt. No. 50.) Having 

carefully considered the pleadings and the papers submitted on this motion, and for the reasons set 

forth below, defendants’ motion is GRANTED. 

 Fed. R. App. P. 10(a) provides that the “record on appeal” is comprised of “(1) the original 

papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a 

certified copy of the docket entries prepared by the district clerk.” (Emphasis supplied.) An appellant 

must “order from the reporter a transcript of such parts of the proceedings not already on file as the 

appellant considers necessary.” Fed. R. App. P. 10(b)(1). Fed. R. App. P. 10(b)(3) provides, in 

relevant part, that: 

unless the entire transcript is ordered . . . (B) if the appellee considers it necessary 

to have a transcript of other parts of the proceedings, the appellee must, within 14 

days after the service of the order or certificate and the statement of the issues, file 

and serve on the appellant a designation of additional parts to be ordered; and (C) 

unless within 14 days after service of that designation the appellant has ordered 
 

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court 

Northern District of California 

all such parts, and has so notified the appellee, the appellee may within the 

following 14 days either order the parts or move in the district court for an order 

requiring the appellant to do so. . . . 

Fed. R. App. P. 10(b)(3). Similarly, under the Ninth Circuit Local Rules, an appellant is 

required to “order all portions of the transcript listed by both appellant and appellee.” Cir. 

R. 10-3(d). An appellant must also “make arrangements with the court reporter to pay for 

these additional portions unless appellant certifies that they are unnecessary to the appeal 

and explains why not.” Cir. R. 10-3(f). 

 Here, defendant/appellees timely designed the transcript of this Court’s proceedings as part of 

the record on appeal. (See Dkt. No. 49.) Plaintiff/appellant was thus required to order a transcript of 

the same by September 25, 2017. See Fed. R. App. P. 10(b)(3); Cir. R. 10-3(d), (f). Plaintiff/appellant 

argues that “Federal Rule of Appellate Procedure Rule 10(b)(3)(B) requires that Defendant-Appellee 

make some showing of where Defendant-Appellee would use the requested transcript in a de novo 

hearing.” (Dkt. No. 52 at 1.) Plaintiff/appellant does not persuade, as Rule 10(b)(3)(B) states no such 

requirement and plaintiff has cited no authority which indicates otherwise. Similarly, plaintiff/ 

appellant’s representation that the transcript is unnecessary because “no witnesses were sworn or 

testified, [and] the transcript consists solely of counsel’s argument and the appeal is heard de novo” 

fails in light of the fact that during the hearing the parties made admissions regarding the applicability 

of California or federal law and the content of the parties’ contracts. Therefore, the Court GRANTS 

defendant/appellee’s motion and ORDERS plaintiff/appellant to order and pay for the transcript of this 

Court’s July 11, 2017, motions hearing no later than October 3, 2017. After appeal, the Ninth 

Circuit itself will determine the issues of costs. 

 This terminates Dkt. No. 50. 

IT IS SO ORDERED. 

 

Dated: _________________________________ 

 YVONNE GONZALEZ ROGERS

 UNITED STATES DISTRICT COURT JUDGE

September 28, 2017