Custom Vehicles Inc v. Forest River Inc ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2009
CUSTOM VEHICLES, INC.,
Plaintiff-Appellant,
v.
FOREST RIVER, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:03-CV-771RM—Robert L. Miller, Jr., Chief Judge.
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SUBMITTED AUGUST 31, 2006—DECIDED SEPTEMBER 25, 2006
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EASTERBROOK, Circuit Judge, in chambers. Custom
Vehicles, the appellant in this trademark litigation, has
filed a motion asking the court to strike portions of the
appellee’s brief. The motion came to me during my stint
as the motions judge. It is now denied—and to show that
such absurd motions do not come for free, I deduct twice the
length of this motion from the permissible length of
the offending party’s reply brief.
Custom Vehicles believes that its adversary’s brief
contains unsupported assertions of fact. Here is the first
example from the motion (underlining and italics in
original):
! Brief, page 3: “J.T. Custom Works did not provide
van conversion services—it only sold van products
2 No. 06-2009
per se. (Supp. App., page 4; Docket Item 55-2, page
19)”
The citation is to a page of Mr. Minnix’s testimony.
Mr. Minnix was responding to the question whether
J.T. Custom Works used the mark “to advertise”
vehicle conversion services, not whether it provided
van conversion services.
Here is another example:
! Brief, page 5: By 2002, Forest River had pub-
lished and distributed an advertising brochure for
those travel trailers (Supp. App., pages 9-10—note
the 2002 copyright notice at bottom center of page
10)
There is simply no evidence cited to support the
claim that the brochure had been published or
distributed in 2002. The brochure alone doesn’t
establish the date of its publication or whether it
was distributed, and if so, when that occurred and
to whom. The a [sic] symbol printed on the brochure
doesn’t establish if it was in fact copyrighted, and if
so, when that occurred.
Much more in the same vein follows. Perhaps Custom
Vehicles is right about the record and Forest River wrong.
But what would lead counsel to think that the court of
appeals will redact his adversary’s brief? The way to
point out errors in an appellee’s brief is to file a reply
brief, not to ask a judge to serve as editor. (If a material
misrepresentation comes in the adversary’s reply brief,
the appellee may ask for leave to file a supplemental
statement.) The judiciary has quite enough to do deciding
cases on their merits.
One can search the Federal Rules of Appellate
Procedure in vain without finding any provision for a
“motion to strike” whole documents, let alone to strike
No. 06-2009 3
sentences out of briefs. Our Circuit Rules do provide for a
motion to strike, but only to get extraneous materials out of
the appellate record when documents find their way there
by error. See Circuit Rule 10(b). Again there is no provision
for a judicial blue pencil. The closest match in any of the
federal rules is Fed. R. Civ. P. 12(f), which provides that a
district court “may order stricken from any pleading any
insufficient defense or any redundant, immaterial, imperti-
nent, or scandalous matter.” This rule does not apply to
appellate practice and would not help Custom Vehicles if it
did, for the motion does not contend that Forest River’s
brief contains “any redundant, immaterial, impertinent, or
scandalous matter.”
Motions may be proper despite the lack of a specific rule.
Suppose, for example, that Forest River’s brief had included
material that Custom Vehicles claimed as a trade secret
and that had been held under seal by the district court. We
would accept a motion to seal the offending brief pending
resolution of any dispute about confidentiality, which could
be resolved by requiring the litigant to file two briefs—one
under seal with the full text, and a second redacted version
for the public record. See Baxter International, Inc. v.
Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002). Likewise
the court sometimes strikes entire briefs, either because
they so substantially violate the Rules of Appellate Proce-
dure that it would not be worth judicial time to work
through them, or because they overlap the presentation of
other litigants on the same side, in violation of a scheduling
or consolidation order entered under Fed. R. App. P. 33 and
Circuit Rule 33. Judicial orders that control the conduct of
an appeal will be enforced, if necessary by striking a brief.
But editing a brief? That’s a different kettle of fish. The
sort of motion that Custom Vehicles has filed does nothing
but squander time. Each week one circuit judge resolves all
motions; there is no relation between this task and the
(eventual) assignment of a three-judge panel to resolve the
4 No. 06-2009
appeal on the merits. So this motion calls on the court
to increase from three to four the number of judges who
must dig through the record and understand the legal
issues. Cf. United States v. Fortner, 455 F.2d 752 (7th Cir.
2006) (motions for summary affirmance are disfavored
in part because, if denied, they may increase from three
to six the number of judges who must consider the merits);
United States v. Lloyd, 398 F.3d 978 (7th Cir. 2005); Ramos
v. Ashcroft, 371 F.3d 948 (7th Cir. 2004).
That extra time may be nothing but busywork for both
the judge and the litigants. Whether J.T. Custom Works
provided vehicle conversion services without advertising
them (and the other quibbles raised in the motion to strike)
may be unrelated to the proper resolution of the appeal.
How could the court tell without resolving the merits?
Custom Vehicles’s motion could not be granted without a
response (Forest River has replied in detail, using about
three pages to address each page of Custom Vehicles’s
challenges) followed by full-fledged adjudication on the
question what the record shows about these matters. If the
motion were granted, new briefs would be required. No sane
judicial system would fritter away resources in that fashion.
Why should this court devote resources to whether the ©
symbol on a document was affixed in 2002, as opposed to
some other year, when that subject may well be irrelevant?
Despite the fact that motions to strike portions of
briefs are not authorized by the rules and are not only
unnecessary (from the parties’ perspective) but also point-
less (from the judiciary’s), they are filed all the time. I see
about one such motion during each week that I act
as motions judge. I have never granted such a motion
(and never will); I don’t believe that any of my colleagues
grants such motions; yet the flow continues.
For some time I have been treating such motions as a
form of “advance” on the allowance of pages or words used
No. 06-2009 5
for the party’s appellate brief. So in the days when an
appellate brief could run 50 pages, a pointless five-page
motion was deducted from the allowable total and the
brief’s maximum length cut to 45 pages, on the ground that
the litigant had forced the court to work through five pages
of argument already and thus had 45 left to go.
The court has ample power to change the length of a brief
from the presumptive maximum. See Fed. R. App. P. 2. I
have decided to use that power. My practice has not led to
a discernible reduction in the number of these motions,
however, perhaps because I have not explained it in a
published opinion. Now notice has been given— and I have
decided to raise the stakes and deduct from the brief double
the number of words in a motion to edit an opponent’s brief
or any other equivalently absurd, time-wasting motion.
Custom Vehicles’s motion to strike contains about 1,200
words. The presumptive maximum length of a reply brief
under Fed. R. App. P. 32(a)(7)(B)(ii) is 7,000 words. For
Custom Vehicles, however, the reply brief in this appeal
may not exceed 4,600 words. The motion to strike is denied.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-25-06