Motions

(a) Form of Pleadings. (1) In Writing; Service. Every motion must be in writing, signed by counsel of record or by the movant if not represented by counsel, and served on all other parties to the proceeding before this court, unless the motion is made in open court in opposing counsel’s or movant’s presence or this court provides otherwise. (2) Format.

Motions, responses thereto, and replies to responses must comply with FRAP 27(d)(1)-(2). (3) Reference to Oral Argument and Submission Without Oral Argument. If a case has been scheduled for oral argument, has already been argued, or is being submitted without oral argument, a motion, and any response or reply, must so state in capital letters at the top of the first page and, where applicable, include the date of argument. (4) Certificate of Parties and Disclosure Statement to be Attached.

A certificate of parties and amici curiae, as described in Circuit Rule 28(a)(1)(A), and a disclosure statement, as described in FRAP 26.1 and Circuit Rule 26.1, must be attached as an addendum to the motion, and any required disclosure statement must also be attached to any response to the motion, unless such documents have been filed previously with the court. (b) Number of Copies. Unless the court directs otherwise, the original and 4 copies of every motion, response, and reply must be filed with the clerk. (c) Response That Also Seeks Affirmative Relief.

A party responding to a motion may combine with the response a motion for affirmative relief. Such a combined response and motion may not exceed 7,800 words if produced using a computer and 30 pages if handwritten or typewritten. A response to such a combined filing must include any reply in support of the original motion, must be filed within 10 days of service of the combined response and motion, and may not exceed 5,200 words if produced using a computer and 20 pages if handwritten or typewritten. Any reply in support of the motion for affirmative relief may not exceed 2,600 words if produced using a computer and 10 pages if handwritten or typewritten.

Rule 27 (d) Clerk May Dispose of Certain Motions. (1) Procedural Motions. The clerk may dispose of procedural motions, in accordance with the court’s instructions. Instead of granting or denying a motion under the authority afforded by this subparagraph, the clerk may submit it to a panel or to an individual judge of the court.

(2) Reconsideration of Clerk’s Orders on Procedural Motions. Any interested party adversely affected by an order of the clerk disposing of a motion may move for reconsideration thereof within 10 days after entry of the order. The clerk will submit the motion for reconsideration to a panel or an individual judge of the court. (e) Requests for Expeditious Consideration.

Any party may request expedited action on a motion on the ground that, to avoid irreparable harm, relief is needed in less time than would ordinarily be required for this court to receive and consider a response. The motion on which expedited action is sought must be labeled an "Emergency Motion" and the request for expedition must state the nature of the emergency and the date by which court action is necessary. The motion must be filed at least 7 days before the date by which court action is necessary or counsel must explain why it was not so filed. Counsel for the party seeking expedition must communicate the request and the reasons therefor in person or by telephone to the clerk’s office and to opposing counsel.

(f) Dispositive Motions. (1) Timing. Any motion which, if granted, would dispose of the appeal or petition for review in its entirety, or transfer the case to another court, must be filed within 45 days of the docketing of the case in this court, unless the court issues a scheduling order establishing a different deadline. This requirement does not apply to a motion by an appellant to dismiss its own appeal, or by a petitioner to dismiss its own petition, either of which may be filed at any time.

(2) Required Attachments. There must be attached to each copy of a dispositive motion a copy of any pertinent opinion or findings issued by the district court or agency or, if the reasons were given orally, the pertinent extract from the reporter’s transcript must be attached, if available. (3) Deferral of Briefing Pending Resolution of Dispositive Motion. Unless otherwise ordered by the court, briefing, if scheduled, will be deferred pending resolution of any timely filed dispositive motion.

If such a motion is not timely filed, briefing will be deferred only if ordered by the court. (g) Motions to Extend Time for Filing and to Exceed Length Limits. (1) Timeliness of Request. A motion to extend the time for filing motions, responses, and replies, or to exceed the length limits for such pleadings, must be filed at least 5 days before the pleading is due.

Motions filed less than 5 days before the due date will be denied absent exceptional circumstances, except that the clerk may grant unopposed late filed motions for extension of time for good cause shown. Rule 27 (2) Consultation. Before filing a motion to extend the time for filing a pleading or for leave to exceed length limits, the moving party must attempt to obtain the consent of the opposing side. If consent is not obtained, the moving party must attempt to inquire whether an opposition or other form of response will be filed.

The opening paragraph of any such motion must recite the position taken by the opposing party in response to these inquiries, or the efforts made to obtain a response. The following requirements pertain to service (i) on an opposing party who has not consented to electronic service or (ii) for motions to extend the time for filing or for leave to exceed length limits that are not filed electronically. If the opposing side has stated an intention to file an opposition or other response, or has not been reached after reasonable effort, the moving party must serve the motion by personal service or, if personal service is not feasible, give telephone notice of the filing and serve the motion by the most expeditious form of service. If the moving party is unable to effect personal service or telephone notice at the time of filing, the opening paragraph of the motion must recite the efforts made to do so.

(3) Pleadings in Excess of Length Limits. The court disfavors motions to exceed length limits; such motions will be granted only for extraordinarily compelling reasons. (4) Automatic Extensions for Timely Filed Motions. If a motion is filed in accordance with the requirements of subparagraphs (1) and (2) above and the court does not act on the motion by the end of the second business day before the filing deadline, the time for filing the pleading is automatically extended until the court rules on the motion.

If the motion is denied by the court under these circumstances, the time for filing will be extended automatically for 7 days after the date of the order denying the motion. If a timely filed motion to exceed length limits is not acted upon by the filing date for the document, the overlong document may be filed; if the motion is subsequently denied, the movant will be given a short period in which to file a document that conforms to the rules. This rule does not apply to the filing of briefs. See Circuit Rule 28.

(h) Response to a Nonconforming Motion or Response. When an untimely, overlength, or otherwise nonconforming motion or response is lodged along with a motion for leave to file the document or exceed the length limits, no response is required to the nonconforming document until a decision is rendered on the motion for leave to file or to exceed length limits. See also Circuit Rule 25 (Filing and Service), and Circuit Rule 47.1 (Matters Under Seal). Rule 27 Rule 28.

Briefs (a) Appellant's Brief. The appellant's brief must contain, under appropriate headings and in the order indicated: (1) a disclosure statement if required by Rule 26.1; (2) a table of contents, with page references; (3) a table of authorities-cases (alphabetically arranged), statutes, and other authorities-with references to the pages of the brief where they are cited; (4) a jurisdictional statement, including: (A) the basis for the district court's or agency's subject-matter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; (B) the basis for the court of appeals' jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; (C) the filing dates establishing the timeliness of the appeal or petition for review; and (D) an assertion that the appeal is from a final order or judgment that disposes of all parties' claims, or information establishing the court of appeals' jurisdiction on some other basis; (5) a statement of the issues presented for review; (6) a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the ruling presented for review, with appropriate references to the record (see Rule 28(e ; (7) a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings; (8) the argument, which must contain: (A) appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; and (B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues); (9) a short conclusion stating the precise relief sought; and (10) the certificate of compliance, if required by Rule 32(g)(1). Rule 28 (b) Appellee's Brief. The appellee's brief must conform to the requirements of Rule 28(a)(1)-(8) and (10), except that none of the following need appear unless the appellee is dissatisfied with the appellant's statement: (1) the jurisdictional statement; (2) the statement of the issues; (3) the statement of the case; and (4) the statement of the standard of review.

(c) Reply Brief. The appellant may file a brief in reply to the appellee's brief. Unless the court permits, no further briefs may be filed. A reply brief must contain a table of contents, with page references, and a table of authorities-cases (alphabetically arranged), statutes, and other authorities-with references to the pages of the reply brief where they are cited.

(d) References to Parties. In briefs and at oral argument, counsel should minimize use of the terms "appellant" and "appellee." To make briefs clear, counsel should use the parties' actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as "the employee," "the injured person," "the taxpayer," "the ship," "the stevedore." (e) References to the Record. References to the parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c).

If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example: Answer p. 7; ! ! Motion for Judgment p. 2; ! Transcript p. 231.

Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. (f) Reproduction of Statutes, Rules, Regulations, etc. If the court's determination of the issues presented requires the study of statutes, rules, regulations, etc., the relevant parts must be set out in the brief or in an addendum at the end, or may be supplied to the court in pamphlet form. (g) [Reserved.] (h) [Reserved.] Rule 28 (i) Briefs in a Case Involving Multiple Appellants or Appellees.

In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another's brief. Parties may also join in reply briefs. (j) Citation of Supplemental Authorities. If pertinent and significant authorities come to a party's attention after the party's brief has been filed-or after oral argument but before decision-a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations.

The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.