FILING AND SERVICE OF BRIEFS

31.1 Number of Copies to be Filed and Served (a) Unless otherwise required by this court, each party must file ten (10) paper copies (i.e. an original and nine copies) of each brief with the clerk for the convenience of the court and, unless counsel has consented to electronic service, serve one (1) paper copy on counsel for each party separately represented. If volume one of the appendix is attached to the electronic brief, one paper copy of volume one must be served on opposing counsel. In Virgin Islands cases only, one additional paper copy of the briefs must be filed with the clerk of the district court in the location from which the appeal is taken (St. Thomas or St. Croix). When hearing or rehearing by the court en banc is ordered, the parties will be directed to file additional paper copies for the court's use.

(b) In addition to the paper briefs, counsel for any party or amicus curiae must file with the court the same brief in electronic form. (1) Filing must be done on the court’s electronic filing system as provided in L.A.R. Misc. 113 or such other method as the court specifies. (2) The brief must be in PDF format.

The Clerk may prescribe additional requirements to aid in transmission. (3) The date of filing the brief is the date the electronic version of the brief is received by the Clerk, provided that ten paper copies are mailed as provided in Rule 25(a)(2)(B), FRAP on the same day as electronic transmission. Table of Contents 28 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 (4) The electronic version of the brief is the official record copy of the brief; if corrections are required to be made to the paper brief, a corrected copy of the electronic brief must be provided. (5) Litigants proceeding pro se need not file an electronic brief.

(c) In addition to the certification of type-volume limitations required by Rule 32(a)(7)(C), and in the same document, counsel must certify that the text of the electronic brief is identical to the text in the paper copies. Counsel must also certify that a virus detection program has been run on the file and that no virus was detected. The certification must specify the version of the virus detection program used. Sanctions may be imposed if a filing contains a computer virus or worm.

(d) A party who is a Filing User as provided in L.A.R. Misc. 113.4 consents to electronic service of the brief through the court’s electronic docketing system (cm/ecf). Service by alternate means must be made on all parties who are not Filing Users. The certificate of service must note what method of service was used for each party served.

Source: 1988 Court Rule 21.2 Cross-references: FRAP 28-32; 3d Cir. L.A.R. 28-32 and L.A.R. Misc. 113.4 Committee Comments: The rule was amended in 2002 to require electronic filing of briefs. Instructions on electronic filing can be found on the court’s web site at www.ca3.uscourts.gov.

A party proceeding pro se need not file electronically, but if the party wishes to file electronically, this rule must be followed. PDF format makes a document more stable when electronically transmitted. This format also insures that pagination remains the same regardless of what printer is used to print the document. The PDF document should be created by converting a word processing document, not by scanning.

Scanned documents that are converted to PDF are more difficult to transport and store and often are not searchable. Although the notice of docket activity issued by cm/ecf lists those parties who were served by the court’s electronic docketing system, this is not a substitute for a certificate of service. 31.2 Appellee's Brief A local, state or federal entity or agency, which was served in the district court and which is the appellee, must file a brief in all cases in which a briefing schedule is issued unless the court has granted a motion seeking permission to be excused from filing a brief. This rule does not apply to entities or agencies that are respondents to a petition for review unless the entity or Table of Contents 29 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 agency is the sole respondent or to entities or agencies which acted solely as an adjudicatory tribunal.

Source: None Cross-references: FRAP 28-32; 3d Cir. L.A.R. 28-32 Committee Comments: Rule 31.2 was added in 2000 and is intended to change the practice of some agencies who choose not to file briefs when they are named as appellee. Amended in 2008 to provide for electronic filing 31.3 Supplemental Pro Se Briefs Prohibited Except in cases in which counsel has filed a motion under L.A.R. 109.2 to withdraw under Anders v. California, 386 U.S. 738 (1967), parties represented by counsel may not file a brief pro se. If a party sends a pro se brief to the court, the clerk will forward the brief to the party’s attorney of record, with notice to the pro se party.

Counsel may choose to include the arguments in his or her brief or may in the unusual case file a motion to file a supplemental brief, if appropriate. Source: None Cross-references: Pro se motions and other documents are governed by L.A.R. 27.8 Committee Comments: Rule 31.3 was added in 2002 and is intended to establish a uniform policy of dealing with pro se briefs from parties who are represented by counsel. SeeMartinez v. Court of Appeal of Cal. 528 U.S. 152 (2000)(no right to self-representation on appeal).

31.4 Motions for Extension of Time to File a Brief A party’s first request for an extension of time to file a brief must set forth good cause. Generalities, such as that the purpose of the motion is not for delay or that counsel is too busy, are not sufficient. A first request for an extension of 14 days or less may be made by telephone or in writing. Counsel should endeavor to notify opposing counsel in advance that such a request is being made.

The grant or denial by the clerk of the extension must be entered on the court docket. If a request for extension of time is made and granted orally, Filing Users are notified by the notice of docket activity generated by the court's electronic docketing system; counsel must send a confirming letter to parties who are not Filing Users within 7 days. A first request for an extension of time should be made at least 3 days in advance of the due date for filing the brief. A motion filed less than 3 days in advance of the due date must be in writing and must demonstrate that the good cause on which the motion is based did not exist earlier or could not with due diligence have been known or communicated to the court earlier.

Subsequent requests for an extension of time must be made in writing and will be granted only upon a showing of good Table of Contents 30 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 cause that was not foreseeable at the time the first request was made. Only one motion for extension of time to file a reply brief may be granted. Source: Cross-references: None None Committee Comments: The rule was adopted in 2002 to permit the oral granting of a short extension of time. The rule was amended in 2011 to modify the requirement of filing a confirming letter.