High School Tricks and the Federal Circuit

High School Tricks and the Federal Circuit

Federal Circuit Court Rules

Remember those really strict teachers in high school who would give zero credit to a paper that exceeded a word limit? In a very similar move, the Federal Circuit recently dismissed an appeal for the Appellants’ opening brief exceeding the 14,000 page limit of Fed. R. App. P. 32(a)(7). In PI-Net International, Inc. v. JPMorgan Case & Co., the Appellee filed a motion noting how Appellants’ opening brief would have exceeded the word limit if Appellants had not have sneakily deleted spaces in between words. The court noted how the Appellant took what should be a 14 word case citation of Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Circ. 2012) and made it all one word by deleting every space in the citation, like so: Thornerv.SonyComputerEntm’tAm.LLC,669F.3d1362,1365(Fed. Circ. 2012). In response to the Appellee’s motion, the Court filed an order to show cause for why the brief should be stricken. The Appellants then filed a motion attaching a “corrected brief.”

Again, the Appellants attempted to game the system. Instead of deleting spaces between words, the Appellants tried to abbreviate various phrases, such as “TOA1” for table of authorities. The court found that the abbreviations were so numerous and poorly explained that the brief was “nearly incomprehensible.” Ultimately, the Federal Circuit found that Appellants failed to show cause and dismissed the appeal. Morale of the story, if it didn’t work the first time, don’t try to cheat the system a second time, especially in the Federal Circuit. At least high school teachers don’t have the power to sanction someone with attorney’s fees.

Federal Circuit Ruling

The Federal Rules of Appellate Procedure limit an appellant’s opening brief to 14,000 “words.” Fed. R. App. P. 32(a)(7). Appellants attempted in their first corrected brief to create “words” by squeezing various words togeth- er and deleting the spaces that should appear between the words. For example, the following is not one word, alt- hough that is how it appears on page 3 of Appellants’ first corrected opening brief: Instead, when written properly, it is 14 words: Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). Similar matters appeared throughout the brief. In the alternative, Appellants move for leave to file a new “corrected brief.” The new corrected brief does not bring the actual word count below 14,000 words. For example, the new corrected brief would, instead of delet- ing spaces between words in case citations, replace vari- ous phrases or case citations with abbreviations such as “TOA1” and list those citations only in the table of author- ities. The Appellants also use abbreviations such as “CR1” to cross-reference to something that was stated earlier in the brief, although it is so poorly explained that 

Case: 14-1495 Document: 74 Page: 3 Filed: 04/20/2015 PI-NET INTERNATIONAL, INC. v. JPMORGAN CHASE & CO. 3 it is nearly incomprehensible. Neither the previously filed brief nor the most recent proffered corrected brief comply with the court’s rules. Instead, they represent an attempt to file briefs that, if written properly, exceed the permit- ted word limitation.