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Monday, September 25, 2006

Ind. Decisions - One Indiana 7th Circuit opinion today

It is Custom Vehicles v. Forest River (ND Ind., Robert L. Miller, Jr., Chief Judge), a 5-page opinion in which Judge Easterbrook writes:

Custom Vehicles, the appellant in this trademark litigation, has filed a motion asking the court to strike portions of the appellee’s brief. The motion came to me during my stint as the motions judge. It is now denied—and to show that such absurd motions do not come for free, I deduct twice the length of this motion from the permissible length of the offending party’s reply brief. * * *

Much more in the same vein follows. Perhaps Custom Vehicles is right about the record and Forest River wrong. But what would lead counsel to think that the court of appeals will redact his adversary’s brief? The way to point out errors in an appellee’s brief is to file a reply brief, not to ask a judge to serve as editor. (If a material misrepresentation comes in the adversary’s reply brief, the appellee may ask for leave to file a supplemental statement.) The judiciary has quite enough to do deciding cases on their merits. * * *

Judicial orders that control the conduct of an appeal will be enforced, if necessary by striking a brief. But editing a brief? That’s a different kettle of fish. The sort of motion that Custom Vehicles has filed does nothing but squander time. Each week one circuit judge resolves all motions; there is no relation between this task and the (eventual) assignment of a three-judge panel to resolve the appeal on the merits. * * *

Despite the fact that motions to strike portions of briefs are not authorized by the rules and are not only unnecessary (from the parties’ perspective) but also pointless (from the judiciary’s), they are filed all the time. I see about one such motion during each week that I act as motions judge. I have never granted such a motion (and never will); I don’t believe that any of my colleagues grants such motions; yet the flow continues.

For some time I have been treating such motions as a form of “advance” on the allowance of pages or words used for the party’s appellate brief. * * *

The court has ample power to change the length of a brief from the presumptive maximum. See Fed. R. App. P. 2. I have decided to use that power. My practice has not led to a discernible reduction in the number of these motions, however, perhaps because I have not explained it in a published opinion. Now notice has been given — and I have decided to raise the stakes and deduct from the brief double the number of words in a motion to edit an opponent’s brief or any other equivalently absurd, time-wasting motion.

Custom Vehicles’s motion to strike contains about 1,200 words. The presumptive maximum length of a reply brief under Fed. R. App. P. 32(a)(7)(B)(ii) is 7,000 words. For Custom Vehicles, however, the reply brief in this appeal may not exceed 4,600 words. The motion to strike is denied.

For those interested in who the attorneys in this case might be, here is a link to the briefs.

Posted by Marcia Oddi on September 25, 2006 03:10 PM
Posted to Ind. (7th Cir.) Decisions