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28 Case No. 4:17-cv-00224-YGR

MOTION TO REQUIRE PLAINTIFF

TO ORDER TRANSCRIPT

ANDREW S. AZARMI (SBN 241407)

andrew.azarmi@dentons.com

DENTONS US LLP

One Market Plaza

Spear Tower, 24th Floor

San Francisco, California 94105

Telephone: 415.267.4000

Facsimile: 415.267.4198

JOSEPH G. MARTINEZ (admitted pro hac vice)

joe.martinez@dentons.com

DENTONS US LLP

1400 Wewatta Street

Suite 700

Denver, Colorado 80202

Telephone: 303.634.4371

Facsimile: 303.634.4400

Attorneys for Defendants ECC CENTCOM

Constructors, LLC and ECC International, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

ASPIC ENGINEERING AND

CONSTRUCTION COMPANY,

Plaintiff,

v.

ECC CENTCOM CONSTRUCTORS, LLC

AND ECC INTERNATIONAL, LLC,

Defendants.

Case No. 4:17-cv-00224-YGR

Hon. Yvonne Gonzalez Rogers

NOTICE OF MOTION AND MOTION TO

REQUIRE PLAINTIFF TO ORDER

TRANSCRIPT; MEMORANDUM OF

POINTS AND AUTHORITIES

Date: October 17, 2017

Time: 2:00 pm

Place: 1301 Clay Street

Courtroom 1, 4th Floor

Oakland, California

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Case No. 4:17-cv-00224-YGR

MOTION TO REQUIRE PLAINTIFF

TO ORDER TRANSCRIPT

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN that, on October 17, 2017 at 2:00 pm in the abovecaptioned Court, located at 1301 Clay Street, Courtroom 1, 4th Floor, Oakland, California,

Defendants and Arbitration-Respondents, ECC CENTCOM Constructors, LLC and ECC

International, LLC, will and hereby do jointly move the Honorable Yvonne Gonzalez Rogers,

United States District Judge, pursuant to Federal Rule of Appellate Procedure 10(b)(3)(C), to

require Plaintiff to order the transcript designated by Defendants (ECF No. 49) for the pending

appeal before the Ninth Circuit Court of Appeals. This Motion is based on this Notice of Motion,

the Memorandum of Points and Authorities, the papers and records on file in this case, and such

oral argument as may be presented at any hearing.
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2 Case No. 4:17-cv-00224-YGR

MOTION TO REQUIRE PLAINTIFF

TO ORDER TRANSCRIPT

Under the Federal Rule of Appellate Procedure and the Circuit Rules of the United States

Court of Appeals for the Ninth Circuit (the “Circuit Rules”), Appellant (Plaintiff), Aspic

Engineering and Construction Company (“Aspic”), is required to order and pay for the transcript

designated by both parties unless Aspic demonstrates to this Court that the transcript designated

by Appellee (Defendant), ECC CENTCOM Constructors, LLC AND ECC International, LLC

(collectively “ECC”), is “unnecessary” to the pending appeal. Aspic has wholly ignored the

procedure set forth in the Circuit Rules. More importantly, the transcript ECC designated is

relevant to the appeal and, therefore, Aspic has no basis not to order this transcript as required by

Federal Rule of Appellate Procedure 10 and Circuit Rule 10-3(d). Pursuant to Federal Rule of

Appellate Procedure 10(b)(3)(C), ECC respectfully requests the Court require Aspic to order the

transcript designated by ECC (ECF No. 49).

I. DISCUSSION

The Federal Rules of Appellate Procedure and the Circuit Rules establish the process for

the designation of District Court transcripts for use in appeals before the Ninth Circuit.

Specifically, the Circuit Rules required Aspic to serve on ECC a designation of the transcripts

Aspic intended to rely upon in its appeal. Cir. R. 10-3(a). ECC, in turn, was to be provided an

opportunity to serve on Aspic any additional transcript designations ECC believed were required.

Cir. R. 10-3(b). Aspic was then required to “order all portions of the transcript listed by both

appellant and appellee.” Cir. R. 10-3(d) (emphasis added). Aspic was also required to “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). The Court would

then determine which party is required to pay for the transcript. Id.

Aspic simply ignored these procedures. Aspic did not engage in the required exchanges

with ECC to determine the transcript both parties sought to designate let alone order the transcript

designated by ECC. Instead, on August 28, 2017, Aspic unilaterally filed a designation stating

that no transcript would be designated (ECF No. 48). On September 7, 2017, ECC notified Aspic

that ECC intended to designate the transcript from the Court’s July 11, 2017 hearing on the

motions that are at issue in the appeal and requested that Aspic order this transcript as required by
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3 Case No. 4:17-cv-00224-YGR

MOTION TO REQUIRE PLAINTIFF

TO ORDER TRANSCRIPT

the Circuit Rules. Aspic refused.

In light of the foregoing, ECC respectfully requests this Court require Aspic to order the

transcript designated by ECC pursuant to Federal Rule of Appellate Procedure 10(b)(3)(C), which

provides in relevant part that ECC may “move in the district court for an order” requiring Aspic to

order the transcript.1This relief is appropriate for two reasons.

First, under the Circuit Rules, it was incumbent upon Aspic—not ECC—to come to the

Court to request relief from ordering the transcript designated by ECC. In the absence of such

relief, the Circuit Rules require Aspic to order and pay for the transcript as designated by both

parties.

Second, ECC designated the transcript from the Court’s July 11, 2017 hearing regarding

the parties’ respective Motion to Vacate the Arbitration Award and Motion to Confirm the

Arbitration Award. The Court’s resolution of these motions is the subject of Aspic’s appeal.

Thus, the transcript is part of the record on appeal. Fed. R. App. P. 10(a)(2). Moreover, during

the hearing, the parties made stipulations and admissions regarding the applicability of California

or federal law and the contents of the parties’ contracts. Finally, the hearing is part of the record

regarding what arguments were raised or not raised and, therefore, waived on appeal. The

transcript designated by ECC is necessary to the appeal and there is no basis to relieve Aspic of its

obligation under the Circuit Rules to order and pay for the transcript.

II. CONCLUSION

Pursuant to Federal Rule of Appellate Procedure 10(b)(3)(C), ECC respectfully requests

the Court require Aspic to order the transcript designated by ECC (ECF No. 49).

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ECC acknowledges its obligation to order and pay for the transcript ECC designated if the

Court does not require Aspic to order the transcript pursuant to this motion.
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4 Case No. 4:17-cv-00224-YGR

MOTION TO REQUIRE PLAINTIFF

TO ORDER TRANSCRIPT

105014609\V-1

DATED: September 12, 2017 DENTONS US LLP

By: s/ Joseph G. Martinez

Andrew S. Azarmi

Joseph G. Martinez

Attorneys for Defendants ECC CENTCOM

Constructors, LLC and ECC International, LLC