Summary
The court denies motions to file appellate briefs instanter after the applicable deadlines had passed. It explains that the Seventh Circuit's rules do not permit untimely extension motions to be circumvented by filing a late brief, and directs the clerk to issue orders to show cause regarding the overdue briefs.
Topics
Practice areas
Questions Presented
- Whether the court may permit an appellate brief to be filed instanter after the deadline when the applicable rules provide no procedure for such a filing.
- Whether an untimely motion for an extension of time may cure the failure to file an appellate brief by the applicable deadline.
- What procedural consequence follows when an appellant or appellee fails to file a brief on time under Circuit Rule 8.
Holdings
- The court's rules do not permit an untimely motion for leave to file an appellate brief instanter as a means of circumventing the requirements governing timely motions for extensions of time.
- Under Federal Rule of Appellate Procedure 31(a), the appellee's brief was due within 30 days after service of the appellant's brief, not 30 days after the date to which the appellant's filing deadline had been extended.
- When an appellant represented by retained counsel fails to file the opening brief when due, the clerk must issue an order requiring counsel to show cause within 14 days why the appeal should not be dismissed for want of prosecution.
- When an appellee's brief is not timely filed, the clerk must issue an order requiring the appellee to show cause within 14 days why the case should not be treated as ready for submission and the appellee denied oral argument.
Key quotations
“There is no provision in the rules of this circuit for circumventing the requirements of timely filing of motions for extensions of time within which to file briefs by submitting, after the date (as extended by any order of the court) that the brief is due, a motion to file the brief “instanter.”” (116)
“This is not a reasonable mistake in view of the unambiguous language of Rule 31(a) of the Federal Rules of Appellate Procedure; and again, whether reasonable or not, it cannot under our rules be rectified by filing an untimely motion for an extension of time, or by filing the brief itself after the deadline for filing it has passed.” (116)
Factual background
In No. 82-1775, appellants repeatedly sought extensions of time to file their appellate brief, ultimately receiving a fifth extension to August 18 accompanied by a warning that no further extensions would be granted. They filed a motion for leave to file the brief instanter on September 3, supported only by a perfunctory affidavit concerning conflicting commitments. In No. 82-1446, the appellee filed his brief on September 2, after the deadline, based on an unreasonable misunderstanding of Federal Rule of Appellate Procedure 31(a).
Procedural history
In No. 82-1775, the appellants received five successive extensions to file their opening brief, with the final extension expressly stating that no further extensions would be granted. They nevertheless filed an untimely motion for leave to file the brief instanter. In No. 82-1446, the appellee filed a brief and a motion for leave to file it instanter after the deadline, mistakenly calculating the deadline from the date to which the appellant's filing time had been extended rather than from the date the appellant's brief was served. The court denied both motions and directed the clerk to issue show-cause orders under Circuit Rule 8.