United States v. Scott Memorial Hospi

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2713
P EGGY A BNER and L INDA K ENDALL,
Plaintiffs-Appellants,
v.
S COTT M EMORIAL H OSPITAL,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 4:05-cv-00106-RLY-WGH—Richard L. Young, Chief Judge.
S UBMITTED F EBRUARY 18, 2011—D ECIDED M ARCH 9, 2011
Before B AUER, P OSNER, and M ANION, Circuit Judges.
P OSNER, Circuit Judge. On February 15, 2011, we issued
an order to show cause why the appellants should not
be sanctioned for filing an oversized brief without our
permission. The appellants have responded and the
sanctions proceeding is ripe for decision—as indeed is
the appeal itself, which has been fully briefed.
2 No. 10-2713
The appeal is from the grant of summary judgment to
the defendant in a suit under the False Claims Act. Briefs
were filed at the end of last year and oral argument
was scheduled for February 24 of this year before this
panel. The appellants’ brief states: “The undersigned
[the appellants’ lawyer, John L. Caudill] hereby certifies
that this brief complies with the type-volume limitation
requirements of FRAP [Federal Rule of Appellate Pro-
cedure] 32(a)(7)(B), as this brief contains 13,877 words
according to a word count by the word-processing
system used to produce this brief, exclusive of sections
of this brief exempted by FRAP 32(a)(7)(B)(iii).” But in
note 1 on page 1 of the appellee’s brief we read that the
appellants’ brief exceeds the 14,000-word limit—that it
contains 18,000 words excluding the portions of the
brief that Rule 32(a)(7)(B)(iii) exempts from the word
limit. No authorization by this court had been sought or
given by either party to file an oversized brief. The ap-
pellee’s brief was within the word limit.
The appellants did not file a reply brief, so the asser-
tion in the appellee’s brief concerning the appellants’
violation of the rules stood uncontradicted. That’s why
we issued the order to show cause “why their brief
should not be stricken and/or sanctions imposed for
failing to comply with Rule 32 and making a false repre-
sentation to the court.” After reading the appel-
lants’ response, along with the briefs, we ordered oral
argument cancelled.
The response to the order to show cause, signed by
lawyer Caudill, concedes that the brief exceeds the
No. 10-2713 3
word limit (it exceeds it by more than 4,000 words), and
states by way of explanation that he had “inadvertently
considered only the words included in the argument
section of the brief as part of the Rule 32(a)(7)(B)(iii)
requirement (the word count also did not factor in
citations made within parentheticals).” It is difficult to
see how these errors could be “inadvertent.” Rule
32(a)(7)(B)(iii) states: “Headings, footnotes, and quota-
tions count toward the word and line limitations. The
corporate disclosure statement, table of contents, table of
citations, statement with respect to oral argument, any
addendum containing statutes, rules or regulations,
and any certificates of counsel do not count toward the
limitation.” 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.
Had appellants filed an 18,000-word brief with a
truthful certificate, the brief would have been rejected;
there would have been no occasion for sanctions, just
as there is no occasion for sanctions when a brief is
rejected for omitting a statement of the standard of
review or the date on which the judgment was entered,
which is essential to determining the timeliness of the
appeal. We reject many briefs for these and similar
reasons. The problem here, by contrast, is a misrepre-
sentation that was initially successful in averting rejec-
tion of the brief. The misrepresentation would have
gone unnoticed had the appellee not called it to our
attention.
4 No. 10-2713
Lawyer Caudill’s response to our order to show cause
continues with the false claim that the appellants’
violation of the Federal Rules of Appellate Procedure
“came to the Court’s attention via an ex parte contact
made by counsel for Appellee directly to the Court of
Appeals Clerk—and not (if it were actually a sig-
nificant matter) in the form of a Motion filed by Appellee.
Although Appellants certainly understand the intent
behind having such a rule, it [which must mean the
appellants] questions the motive of Appellee for raising
it as an issue months after filing its response Brief and
only eight days prior to oral argument.” The appellee’s
brief was filed on December 30, almost two months
before the scheduled date of oral argument, and it is
the footnote in that brief that we mentioned earlier, not
any ex parte contact with the Clerk’s office, that alerted
us to the appellants’ alleged (and now conceded) viola-
tion of Rule 32. Caudill either had never read his oppo-
nent’s brief or had forgotten it; in either case the accusa-
tion of an ex parte contact by his opponent eight days
before oral argument (or at any other time) was false.
In fairness to Caudill our order to show cause did not
mention the footnote in appellee’s brief that drew our
attention to the possible violation of the word-limit rule,
but he should not have leapt to the conclusion that the
order was based on an improper communication by his
opponent. We add that the appellants’ brief is rambling,
and would be more effective if compressed to 14,000
words. But Caudill doesn’t seek an opportunity to
submit a compliant brief. He insists that his 18,000+
word brief be allowed.
No. 10-2713 5
The response to the order to show cause, and the
belated “Motion for Leave to Exceed Word Count” filed
with it, advance no persuasive grounds for allowing an
oversized brief to be filed, and so the brief is stricken.
We could go further. As the Supreme Court pointed out
in Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991), a
court has the authority “to fashion an appropriate
sanction for conduct which abuses the judicial process,”
including the “particularly severe sanction” of dismissal.
See also David G. Knibb, Federal Courts of Appeals Manual:
A Manual on Practice in the United States Courts of Appeals
§ 35:1, p. 873 (5th ed. 2007).
We haven’t found any cases in which a court dismissed
an appeal for violation of Rule 32 alone. But our court
and other courts of appeals as well have done so for
violations of Rule 30 (or have summarily affirmed the
judgment appealed from, as a sanction for such viola-
tions), which specifies requirements for the form and
content of appendices to briefs. Snipes v. Illinois Dep’t of
Corrections, 291 F.3d 460, 463-64 (7th Cir. 2002); Urso v.
United States, 72 F.3d 59, 61-62 (7th Cir. 1995); Mortell v.
Mortell Co., 887 F.2d 1322, 1327 (7th Cir. 1989); Morrison
v. Texas Co., 289 F.2d 382 (7th Cir. 1961); N/S Corp. v. Liberty
Mutual Ins. Co., 127 F.3d 1145 (9th Cir. 1997); Kushner v.
Winterthur Swiss Ins. Co., 620 F.2d 404 (3d Cir. 1980);
United States v. Green, 547 F.2d 333 (6th Cir. 1976) (per
curiam); United States v. Seaboard Coast Line R.R., 517
F.2d 881 (4th Cir. 1975) (per curiam); Harrelson v. Lewis,
418 F.2d 246 (4th Cir. 1969) (per curiam); see also United
States v. Rogers, 270 F.3d 1076, 1085 (7th Cir. 2001). “Mis-
conduct may exhibit such flagrant contempt for the
6 No. 10-2713
court and its processes that to allow the offending party
to continue to invoke the judicial mechanism for its own
benefit would raise concerns about the integrity and
credibility of the civil justice system that transcend the
interests of the parties immediately before the court.”
Barnhill v. United States, 11 F.3d 1360, 1368 (7th Cir. 1993).
“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); see also Bolt v. Loy, 227 F.3d 854,
856 (7th Cir. 2000); Cosby v. Meadors, 351 F.3d 1324, 1333
(10th Cir. 2003); Ortiz-Lopez v. Sociedad Espanola de Auxilio
Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 37 (1st
Cir. 2001); Keefer v. Provident Life & Accident Ins. Co., 238
F.3d 937, 941 (8th Cir. 2000).
The flagrancy of the violation in this case might well
justify the dismissal of the appeal: let this be a warning.
But in addition it is plain from the briefs that the
appeal has no merit. To allow time for the appellants to
file a compliant brief and the appellees to file a revised
brief in response, and to reschedule oral argument,
would merely delay the inevitable.
The motion to file an oversized brief is denied and the
judgment of the district court summarily
A FFIRMED.
3-9-11