NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
SERVICE REMINDER LLC,
Plaintiff-Appellant, 3
V.
VOLKSWAGEN GROUP OF AMERICA, INC., __
Defendant-Appellee.
2012-1139 `
Appeal from the United States District C0urt for the
Easte1'~n District of Michigan in case n0. 10-CV-12201,
Judge Denise Page I'I00d.
ON MOTION
Bef0re BRYSON, Circuit Judge.
ORDER
V01kswagen G1'0up of Arnerica, Inc. moves to dismiss
this appeal for failure to prosecute Service Reminder
LLC opposes V01kswagen replies V01kswagen also

SERVlCE REMINDER V. VOLKSWAGEN 2
moves to supplement its motion to dismiss with addi-
tional information about the status of the case. Service
Reminder 0pposes, and Volkswagen replies, to this motion
as we1l. The court grants Volkswagen’s motion to sup-
plement, as the additional briefing by both sides provides
more updated information regarding the status of the
case. Nonetheless the court denies Volkswagen’s motion
to dismiss without prejudice to refiling
From the various papers submitted by the parties on
this motion, it is clear that Service Reminder has not fully
complied with this court’s rules, whether by failing out-
right or by complying only in an untimely fashion. _
Federal Rule of Appellate Procedure 10(b), in relevant
part, imposes upon the appellant a duty to (A) order a
transcript, complying with local rules, of "such parts of
the proceedings not already on file as the appellant con-
siders necessa1'y”; or (B) "file a certificate stating that no
transcript will be ordered." A transcript order under Rule
1O(b)(A) must be in writing and a copy must be filed with
the district clerk. The district court’s applicable local rule
likewise states:
All requests for transcripts from any proceeding
held in the United States District Court for the
Eastern District of Michigan shall be in writing
and addressed to the court reporter for the Dis-
trict Judge before whom the matter was heard,
with a copy of such request filed with the Clerk of
the Court.
E.D. Mich. LR 80.1(a). If the appellant does not order the
entire transcript, the appellant must file a statement of
the issues which the appellant intends to present on
appeal and serve the appellee with a copy of the state-

3 SERVICE REMINDER V. VOLKSWAGEN
ment of the issues and a copy of the order or certificate
Fed. R. App. P. 10(b)(3). As applicable here, appellant
must accomplish these things within fourteen days after
filing the notice of appeal. Fed. R. App. P. 10. An appel-
lant’s failure to timely comply with these (or other) rules
of this court "does not affect the validity of the appeal, but
is ground only for the court of appeals to act as it consid-
ers appropriate, including dismissing the appeal." Fed. R.
App. P. 3(a)(2). ~
Service Reminder filed its Notice of Appeal on October
2'7, 2011. Accordingly, Service Reminder had fourteen
days from that point to order a transcript or certify no
transcript would be ordered, pursuant to Rule 10(b)(1)
and, if a partial transcript was ordered, to comply with
Rule 10(b)(3)(A). Volkswagen argues that Service Re-
minder failed to meet these and other deadlines Service
Reminder responds, supported simply by a declaration
from its counsel, Jean-Marc Zimmerman, that it “sent a
letter and a check to Judge Hood’s court reporter" re-
questing a transcript on October 27, 2011. Service Re-
minder further states that Zimmerman subsequently
engaged in several communications with the district court
and this court regarding whether the record had been
forwarded, culminating with a communication from a
Deputy Clerk at the district court on December 21, 2011,
indicating that the record had been forwarded to this
court.
As Volkswagen points out in its reply, Service Re-
minder does not assert that Zimmerman ever filed his
October 27 letter or a transcript order with the district
court clerk as required by FederalRule of Appellate
Procedure 10(b) and Local Rule of the United States
District Court for the Eastern District of Michigan
80.1(a), nor does it explain his failure to do so. Indeed,

SERVICE REMINDER V. VOLKSWAGEN 4
the only evidence of a transcript order beyond Zimmer-
man’s uncorroborated averments is an acknowledgement
by the court reporter that a transcript order form was
received on January 20, 2012, in an entry in the district
court’s docket dated January 24, 2012.
ln the supplemental briefing submitted by the par-
ties, Volkswagen renews its complaint regarding Service
Reminder’s non-compliance with respect to the tran-
scripts. Service Reminder responds simply by stating
that it did indeed order and obtain a transcript of the
proceedings before the district court, and attaches a copy
of the first two pages as an exhibit to its response. _
These efforts do not fully comply with Rule 10(b)(1).
Service Reminder was required to file a copy of its tran-
script order with the district court clerk. If a partial
transcript was ordered, Service Reminder was further
required to file a statement of issues pursuant to Rule
10(b)(3) and to serve a copy on Volkswagen.
Nonetheless, it appears that a transcript has been or-
dered, and that Zimmerman may have made some eH`ort
to obtain a transcript in a timely fashion. Accordingly,
dismissal of the appeal at this time is too strong a sanc-
tion. Service Reminder and Zim1nerman are advised,
however, to cure any current noncompliance immediately
and to comply with all of this court’s rules going forward.
In Volkswagen’s reply in support of its motion to sup-
plement, the transcript issue is the only instance cited of
Service Reminder’s ongoing noncompliance with the rules.
Volkswagen lists several other failures by Service Re-
minder to timely comply with the rules, including with
respect to designation of materials for the appendix,
identification of issues for appeal, and filing a certificate

5 SERVICE REMINDER V. VOLKSWAGEN
of compliance with Federal Circuit Rule 11(d). lt appears
these deficiencies have been cured.
While the court declines to sanction Service Re-
minder’s failure to timely comply with the rules with
dismissal of the appeal at this time, Service Reminder
should adhere strictly to all of this court’s rules and
deadlines going forward, and immediately cure any
outstanding noncompliance, including its noncompliance
with Federal Rule of Appellate Procedure 10(b).
Accordingly,
IT ls ORDERED THAT: `
(1) The motion to supplement the motion to dismiss is
granted. _
(2) The motion to dismiss is denied without prejudice
to refiling.
(3) Service Reminder is directed to cure its current
noncompliance with F ederal Rule of Appellate Procedure
10(b) immediately.
(4) Service Reminder’s initial brief is due within 14
days of the date of this order.
FoR THE CoURT
MAR 2 3  fsi Jan Horbaly
Date J an Horbaly
Clerk
FILED
U.S. COUFlT 0F APFEALS FUR
THE FEDERAL C|RCU|T
MAR 23 2012
JAN HOHBALY
CLEHK

SERVICE REMINDER V. VOLKSWAGEN
cc: Jean-Marc Zimmerman, Esq
Michael J. Lennon, Esq.
s23

