IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

IN RE JAMES WARREN MAY, ) 

 ) 

 Debtor. ) 

 ) 

JAMES WARREN MAY, )

 )

Plaintiff/Appellant, ) 

 ) 

v. ) CIVIL ACTION 10-0431-WS-N 

 ) 

UNITED STATES OF AMERICA, ) 

 ) 

Defendant/Appellee. )

ORDER

 This bankruptcy appeal comes before the Court on the United States’ Motion to Strike 

Items from Debtor’s Designation for the Record on Appeal (doc. 5). Plaintiff/appellant, James 

Warren May, has filed a Response (doc. 6) in opposition to the Motion to Strike. 

 The test for defining the proper scope of a record on appeal in bankruptcy cases is well 

settled. As one court phrased it, “[t]he touchstone for the designation of matter as part of the 

record is whether the matter was before the lower court (or at least considered by that court) in 

entering the order or judgment appealed from.” In re Bear Stearns High-Grade Structured 

Credit Strategies Master Fund, Ltd., 389 B.R. 325, 339 (S.D.N.Y. 2008) (citation omitted); see 

also In re Harbaugh, 301 B.R. 317, 321 (8th Cir. BAP 2003) (striking from record on appeal 

certain evidentiary materials in appellant’s appendix “[b]ecause those materials were not part of 

the record before the bankruptcy court”); In re CPDC, Inc., 337 F.3d 436, 443 (5th Cir. 2003) 

(bankruptcy rule covering record on appeal “does not permit items to be added to the record on 

appeal to the district court if they were not part of the record before the bankruptcy court”); In re 

Shah, 2006 WL 3068839, *1 (5th Cir. Oct. 26, 2006) (“the district court did not err in refusing to 

permit Mehta to designate documents for appellate review that were never considered by the 

bankruptcy court”); In re National Century Financial Enterprises, Inc., 334 B.R. 907, 917 

(Bankr. S.D. Ohio Dec. 22, 2005) (“[t]he record on appeal should contain all items considered by 

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the bankruptcy court in reaching a decision. ... Conversely, if an item was not considered by the 

court, it should be stricken from the record on appeal.”) (citations omitted). 

 Here, the parties quarrel over May’s designation in the record on appeal of eight exhibits 

relating to their respective motions for summary judgment in Bankruptcy Court. These exhibits 

(numbered as docket entries 12, 18, 22, 24, 25 29, 34, and 35) include both sides’ summary 

judgment motions, certain briefing relating to those motions, and two affidavits submitted by 

May in connection with the summary judgment briefing.1

 It is unclear from the parties’ filings 

whether and to what extent the Bankruptcy Court actually relied on these materials in the rulings 

from which appeal is taken; however, it is clear that the Bankruptcy Court did have those 

materials before it at trial. Moreover, the Bankruptcy Court expressly directed the parties at the 

outset of trial to expedite the proceedings by not rehashing issues that had already been briefed 

and matters already in evidence, which would include these items by implication. (Doc. 4, at 4-

5.) In light of those remarks, the Court cannot say that the Bankruptcy Court did not consider 

these exhibits in reaching the determinations at trial from which appeal is now taken. Certainly, 

Judge Shulman was aware of those materials, and he urged the parties to avoid reiterating their 

contents at trial so as to streamline the proceedings. 

 Because the objected-to exhibits were before the Bankruptcy Court in entering the order 

and judgment appealed from, and because he may have considered those materials in entering 

such order and judgment, the Government’s Motion to Strike (doc. 5) is denied. That said, 

nothing herein in any way precludes or constrains the parties’ ability to make appropriate 

arguments concerning the admissibility, weight and significance of those exhibits herein. 

DONE and ORDERED this 23rd day of August, 2010. 

 s/ WILLIAM H. STEELE 

 CHIEF UNITED STATES DISTRICT JUDGE 

 1

 The Government appears to be particularly exercised over the two affidavits, 

including one from the debtor and one from Lisa May, both of whom testified at trial. The 

Government expresses concern that these affidavits contain hearsay. 

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