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Court cautions attorneys on brief length

Attorneys who practice in federal court should consider themselves on notice: filing an oversized brief without permission could result in dismissal of the appeal.

In a March 9 opinion by Judge Richard Posner, the court acknowledged it has never dismissed an appeal for that alone. But it cautioned, “The flagrancy of the violation in this case might well justify the dismissal of the appeal: let this be a warning.”

Peggy Abner and Linda Kendall filed suit against Scott Memorial Hospital under the False Claims Act, but the district court granted summary judgment to Scott.

Abner and Kendall appealed. Their brief contained 18,000 words, but contained a certification that it contained less than 14,000 – the maximum allowed. No authorization to file an oversized brief was sought.

A footnote in Scott’s brief pointed out the violation. The court then ordered the appellants to show cause why they should not be sanctioned. Counsel for the appellants responded it was inadvertent.

The response further alleged counsel for Scott had made an improper ex parte communication with the court in bringing the error to the court’s attention.

The court rejected both contentions.

Addressing the claim that the error was inadvertent, the court found it was not, and that such an error could never be inadvertent.

Judge Posner wrote for the court, “There is no ambiguity, hence no room for misinterpreting the rule as confining the required word count to the argument portion of the brief (which would, for example, allow for an endless statement of facts), or as omitting citations in parentheses.”

Turning to the allegation of an ex parte communication, the court was even brusquer: “it is the footnote …, not any ex parte contact with the Clerk’s office, that alerted us to the appellants’ alleged (and now conceded) violation of Rule 32. [Appellants’ counsel] either had never read his opponent’s brief or had forgotten it; in either case the accusation of an ex parte contact by his opponent eight days before oral argument (or at any other time) was false.”

Turning to the appropriate sanction, the court found it had never before dismissed an appeal just because the brief was oversized. But it found it could do so in an appropriate case, citing dismissals for violations of Rule 30 regarding appendices.

Quoting the 11th Circuit, the court iterated (and alliterated), “Permitting the plaintiff to pursue his claim would take the punch out of the punishment for pummeling the probity of the judicial system.” Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006).

But the court found it unnecessary to dismiss the appeal as a sanction in this case. Without addressing the merits of the appeal, the court summarily affirmed: “it is plain from the briefs that the appeal has no merit.”

What the Court Held

Case: Abner v. Scott Memorial Hospital, No. 10-2713

Issue: Can an appeal be dismissed for failure to comply with Rule 32?

Holding: Yes, if the appellant intentionally misrepresents the length of the brief, dismissal could be an appropriate sanction.

Full text available at www.wislawjournal.com

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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