United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
Memorandum resolves a motion to supplement the record filed
by plaintiff/appellant Atlantic Guns, Inc. ("Atlantic
Guns") in regard to an appeal pending in the United
States Court of Appeals for the Fourth Circuit. See
Appeal No. 19-1467 (the "Appeal"). The Appeal
concerns a' suit challenging the constitutionality of
Maryland's Firearm Safety Act of 2013 (the
"Act"), Md. Code (2018 Repl. Vol.), § 5-117.1
of the Public Safety Article. Among other things, the Act
requires a prospective handgun buyer in Maryland to obtain a
Handgun Qualification License in order to purchase certain
types of firearms. See id.
Guns, along with plaintiffs Maryland Shall Issue, Inc.;
Deborah Kay Miller; and Susan Vizas, filed suit against
defendants Lawrence Hogan, Jr., Governor of Maryland, and
Colonel William Pallozzi, Superintendent of the Maryland
State Police, challenging the Act. By Memorandum Opinion (ECF
98) and Order (ECF 99) of March 31, 2019, 1 granted the
defendants' summary judgment motion (ECF 59) and denied
plaintiffs' cross motion for summary judgment.
See ECF 75. Thereafter, on April 25, 2019,
plaintiffs noted an appeal to the Fourth Circuit. ECF 103.
September 6, 2019, Atlantic Guns filed in this court a Motion
to Supplement the Record on Appeal (ECF 106), supported by a
memorandum (ECF 106-2) (collectively, the
"Motion"), and an exhibit. Atlantic Guns seeks to
add to the appellate record "excerpts of, and Exhibit 30
to, the deposition transcript of its president and corporate
designee, Mr. Stephen Schneider." Id. at 1. The
deposition excerpt (ECF 106-3) references deposition Exhibit
30, "a package" of emails from "potential
customers or customers," which were "produced in
discovery." Id. at 2. Neither the deposition
excerpt nor the emails were submitted to this court on
summary judgment. Instead, plaintiffs submitted
Schneider's Declaration. See ECF 84; ECF 86
(sometimes referred to as "the State") oppose the
Motion. ECF 107 (the "Opposition"). Atlantic Guns
has replied. ECF 108.
hearing is necessary to resolve the Motion. See Local Rule
105.6. For the reasons that follow, I shall deny the Motion.
Motion is rooted in statements made in the briefs submitted
to the Fourth Circuit concerning events that occurred on
summary judgment in this court.
their opening appellate brief, plaintiffs/appellants asserted
that "Atlantic Guns has turned away, and thus lost
business from, hundreds of handgun customers because they
lack a Handgun License." Appeal, Appellants' Brief,
ECF 20 at 10. In support of this assertion, plaintiffs cited
to the sealed Declaration of Atlantic Guns' president,
Stephen Schneider. Joint Appendix ("JA") at 1412;
see ECF 84 in this court. The unsealed, redacted
version of the Declaration, is found at ¶ 1911 and at
ECF 86 in this court. Plaintiffs/appellants also stated in
their appellate brief: "To protect its customers'
privacy, Atlantic Guns has not identified [the customers] by
name, but did produce emails with specific individual
customers' names redacted by Atlantic Guns to protect
their identities during discovery." Appeal,
Appellants' Brief, ECF 20 at 10. However, as noted,
neither the emails nor the deposition excerpt were included
with the Declaration. ECF 84.
noted in their response brief, Appeal, Appellees' Brief,
ECF 36 at 11-12:
... Plaintiffs' opening brief to this Court asserts that
Atlantic Guns "has turned away, and thus lost business
from, hundreds of handgun customers because they lack a
Handgun License." Appellants' Br. 10. For this
assertion, the brief cites only the uncorroborated
declaration of Mr. Schneider. Id. Atlantic Guns goes
on to suggest that in discovery it produced documentary
evidence of the loss of sales in emails with customer names
redacted, id, but the brief does not document that
suggestion with any citation to the Joint Appendix or to the
summary judgment record in the district court. Although
Atlantic Guns produced in discovery emails with customer
names redacted, those emails did not support Atlantic
Guns' professed loss of sales, which likely explains why
Plaintiffs did not rely on the emails on summary judgment...
plaintiffs/appellants filed in the Fourth Circuit a
"Motion For Leave To File Attachment." Appeal, ECF
39. Plaintiffs/appellants sought to add to the record the
same exhibit as Atlantic Guns proposes here. They explained
that the State inaccurately represented that Atlantic Guns
"did not produce [the emails] in discovery."
Id. at 1. Further, plaintiffs/appellants .
maintained that they "did not anticipate that Appellees
would misstate the discovery record in this regard and
therefore did not add the proposed attachment to the record
on appeal." Id. at 2.
State responded. Appeal, ECF 41. It argued that
plaintiffs/appellants had not submitted the emails as part of
the summary judgment record in this court, and did not
properly seek to supplement the record in this court,
pursuant to Fourth Circuit Local Rule ("LR") 10(d).
Id., at 1. Defendants/appellees also argued that the
emails are immaterial and constitute inadmissible hearsay.
Order dated August 30, 2019, the Fourth Circuit denied
plaintiffs/appellants' motion, without explanation.
Appeal, ECF 44. The Order said, id. at 2: "Upon
consideration of submissions relative to the motion to file
an attachment to the reply brief, the court denies the
motion, The appellants are directed to file a corrected brief
that does not contain references to the proposed attachment
on or before September 9, 2019." Plaintiffs/appellants
filed their corrected brief on September 6, 2019. Appeal, ECF
46. On the same day, Atlantic Guns filed the ...