United States Court of Appeals for the Federal Circuit
MISCELLANEOUS No. 774
IN RE VIOLATION OF RULE 28(c)
Blas P. Arroyo, Alston & Bird LLP, of Charlotte, North Carolina, for
defendant/counterclaimant cross-appellant, The Esab Group, Inc. Of counsel was
Richard M. McDermott.
Edward A. Haffer, Sheehan Phinney Bass & Green, PA, of Manchester, New
Hampshire, for plaintiff/counterclaim defendant-appellant, Centricut, LLC (New
Hampshire), and counterclaim defendant-appellant, Centricut, LLC (Delaware). Of
counsel were Michael J. Bujold and Neal E. Friedman, Davis & Bujold, P.L.L.C., of
Manchester, New Hampshire.
Appealed from: United States District Court for the District of New Hampshire
Judge Steven J. McAuliffe
United States Court of Appeals for the Federal Circuit
MISCELLANEOUS No. 774
IN RE VIOLATION OF RULE 28(c)
Before MICHEL, CLEVENGER, and DYK, Circuit Judges.
PER CURIAM.
ORDER
On September 10, 2004, at oral argument in Centricut LLC v. Esab Group, Inc.
(Nos. 03-1574, -1614), this court issued an order to Blas P. Arroyo, counsel for The
Esab Group, Inc. (“counsel”), to show cause why sanctions should not be imposed for
the filing of a Cross-Appellant’s Reply Brief in violation of Fed. R. App. P. 28(c).
Counsel submitted a written response urging that the filing of a non-conforming Reply
Brief, while in violation of Rule 28(c), did not merit sanctions. We conclude that
sanctions are not warranted in this case. However, in the future, similar violations of the
Federal Rules of Appellate Procedure, or of our Local Rules of Practice, will likely result
in sanctions.
DISCUSSION
The underlying case here involves a suit for patent infringement brought by The
Esab Group, Inc. (“Esab”) against Centricut LLC (New Hampshire) and Centricut LLC
(Delaware) (collectively “Centricut”). Following a bench trial, the district court found
infringement and granted damages in favor of Esab. Centricut appealed from the
judgment of infringement and objected to the measurement of damages. Esab cross-
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appealed, seeking to modify the judgment on damages. The merits of the appeal and
cross-appeal have not been decided.
Rule 28(c) of the Federal Rules of Appellate Procedure provides, in pertinent
part: “An appellee who has cross-appealed may file a brief in reply to the appellant’s
response to the issues presented by the cross-appeal.” Rule 28(c) limits the content of
Cross-Appellant’s Reply Brief to “issues presented by the cross-appeal,” and the
Practice Notes promulgated by this court explicitly warn cross-appellants against
exceeding the scope of Rule 28:
[C]ounsel are cautioned, in cases involving a proper cross-appeal, to limit
the fourth brief to the issues presented by the cross-appeal. In all cases,
counsel should be prepared to defend the filing of a cross-appeal and the
propriety of arguments presented in the fourth brief at oral argument.
Federal Circuit Rule 28 (2004) and Practice Note (Cross-Appeals). In large part,
the Cross-Appellant’s Reply Brief filed by Esab addressed issues pertinent only to the
main appeal. Indeed, counsel for Esab conceded during oral argument that the vast
majority of the Cross-Appellant’s Reply Brief—roughly 20 of the brief’s 23 pages—
addressed issues relating only to the main appeal and not to the cross-appeal.
Contrary to counsel’s argument that there is a lack of clarity in the rules
concerning cross-appeal reply briefs, the language of Rule 28(c) is perfectly clear. The
reply brief in the cross-appeal must be limited to cross-appeal issues and must not
again address the main appeal. The fact that Federal Circuit Rule 31, which governs
this court’s procedures for filing briefs (including cross-appeal reply briefs) does not
explicitly reference Rule 28’s content limitations is of no import. Rule 28 is clear, and
must be complied with.
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This court has authority to impose sanctions for violations of the Federal Rules of
Appellate Procedure or of its own rules. Federal Rule of Appellate Procedure 46(c)
provides that a “court of appeals may discipline an attorney who practices before it . . .
for failure to comply with any court rule.” 1
We accept counsel’s representation that the violation of Rule 28(c) in this case
was inadvertent. So far as we have been able to determine, this court has not in the
past exercised its authority to impose sanctions for “inadvertent” violations of applicable
court rules. Under these circumstances, we conclude that the imposition of sanctions in
this case is not appropriate. However, we wish to make clear that it is the duty of
counsel to familiarize themselves with applicable rules, and that, in future cases, serious
violations of applicable rules, whether or not “inadvertent,” will potentially subject
counsel to sanctions.
This court, in order to get its work done, must insist on strict compliance with its
rules. Violations of Rule 28(c)—and of other procedural rules such as Federal Circuit
Rule 47.6 which prohibits the citation of nonprecedential opinions, or the rules governing
situations in which a cross-appeal is appropriate—are all too frequent. In addition to
imposing an unfair burden on opposing parties, violations of our rules also burden the
court. The court must consider a large number of appeals each year. It can only
1
Federal Rule of Appellate Procedure 46(c) provides in its entirety:
Discipline: A court of appeals may discipline an attorney who
practices before it for conduct unbecoming a member of the bar or
for failure to comply with any court rule. First, however, the court
must afford the attorney reasonable notice, an opportunity to show
cause to the contrary, and if requested, a hearing.
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conduct its work fairly and efficiently if counsel cooperate by abiding by the pertinent
rules.
Accordingly,
IT IS ORDERED THAT:
No sanctions be imposed in the present case.
FOR THE COURT
Nov-5 2004 S/ Jan Horbaly
Date Jan Horbaly
Clerk
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