False Word Limit Certification Is Grounds For Dismissal Of Appeal
ABNER v. SCOTT MEMORIAL HOSPITAL (March 9, 2011)
Plaintiffs Abner and Kendall brought suit against Scott memorial Hospital pursuant to the False Claims Act. In the district court, Chief Judge Young (S.D. Ind.) granted summary judgment to the Hospital. Plaintiffs appeal.
In their opinion, Judges Bauer, Posner, and Manion affirmed. The Court had little comment on the merits of the case. Instead, it noted that appellants' brief, although it contained the required 14,000 word certification, actually contained 18,000 words. When the appellee brought this fact to the Court's attention, the Court issued an order to appellant to show cause "why their brief should not be stricken and/or sanctions imposed." In response, appellants' lawyer conceded the error, claimed it was inadvertent, falsely claimed that appellee's counsel brought the matter to the Court's attention via an ex parte contact, and offered no persuasive grounds for leave to file the brief. The Court struck the brief and noted that it would have had no reason to go further had it been filed within an accurate certification. In fact, the severity of the offense here would justify dismissal of the appeal as a sanction. But the Court did not dismiss the appeal. Instead, the Court concluded that the appeal had no merit. The Court denied the motion for leave to file the oversize brief, summarily affirmed summary judgment for the defendants, and let its words stand as fair warning to future litigants.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select