Charles Prior Hall and Wbx Partners v. Thermafoil Products, Inc., Charles Prior Hall and Wbx Partners v. E & S Vinyl Manufacturing, Inc. ( 1996 )

108 F.3d 1390

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Charles Prior HALL and WBX Partners, Plaintiffs-Appellees,
v.
THERMAFOIL PRODUCTS, INC., Defendant-Appellant.
Charles Prior HALL and WBX Partners, Plaintiffs-Appellees,
v.
E & S VINYL MANUFACTURING, INC., Defendant-Appellant.

No. 96-1473, 96-1483.

United States Court of Appeals, Federal Circuit.

Dec. 16, 1996.

Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and CLEVENGER, Circuit Judge.

ON MOTION

ORDER

CLEVENGER, Circuit Judge.

1

Charles Prior Hall and WBX Partners (collectively Hall) move to dismiss appeal nos. 96-1473 and 96-1483 for failure to file opening briefs. Neither Thermafoil Products, Inc. nor E & S Vinyl Manufacturing, Inc. has responded.

2

Thermafoil and E & S, who are represented by the same counsel, filed their notices of appeal on July 19, 1996. Appeal no. 96-1473 was docketed on August 6, 1996; appeal no. 96-1483 was docketed a day later on August 7, 1996. Thus, the briefs were due on October 5, 1996 and October 6, 1996, respectively. The court received no further communication from counsel in appeal no. 96-1473 except notification that the filing fee had been paid and a September 3, 1996 letter regarding correction of the official caption. In appeal no. 96-1483, counsel contacted the court by letter on October 4 and stated that he had not received a copy of the docketing package. The court verified the mailing address, which had not changed, and forwarded a second docketing package to counsel. Nevertheless, counsel also failed to file a brief in appeal no. 96-1483.

3

In this court, failure of the appellant to file a brief almost always results in dismissal. We placed counsel on notice in Julien v. Zeringue, 864 F.2d 1572, 1574 (Fed.Cir.1989), that "failure to comply with this court's rules, including the requirements for preparing and filing briefs, appendices and other papers, may result in dismissal of an appeal for failure to prosecute." See Fed.Cir.R. 31(d) ("If the appellant or petitioner fails to file a brief, the clerk is authorized to dismiss the case"). Thermafoil and E & S have not submitted their briefs, have not sought extensions of time to do so, and did not respond to this motion to dismiss. Dismissal is thus appropriate.

4

Accordingly,

IT IS ORDERED THAT:

5

(1) Hall's motion to dismiss appeal no. 96-1473 is granted.

6

(2) Hall's motion to dismiss appeal no. 96-1483 is granted.

7

(3) All sides shall bear their own costs.