Once upon a time in a land far far away . . .

No Kardashians. No Barack Obama. An entire town’s population was not being sued. No pro se litigants. “This one could be interesting,” Alexis said to herself. Turns out she was right.

Alexis had spent the first month of her clerkship drafting per curiam opinions for appeals that involved issues no tougher than whether a district court properly dismissed a §1983 action against the Kardashians for the emotional and psychological strain that their reality television shows had allegedly caused the plaintiff. She couldn’t see how drafting such opinions was going to impress Judge Chamberlain Haller, the federal circuit judge for whom she worked.

The appeal that landed on her desk a few days ago was different. It involved a contract dispute between two corporations, and the defendant/appellant was challenging the district court’s grant of the plaintiff’s summary judgment motion. One of the appellant’s arguments had Alexis stumped.

“What the hell am I to do with this?” The question came out a bit louder than she expected.

“What’s the problem?”

Alexis looked up to see Peirce, one of her co-clerks, who had popped his head in her doorway. Peirce had spent the prior year clerking for a district court judge, and Judge Haller’s other clerks saw him as the go-to person when they had questions.

“I hope I’m missing something, because I don’t like how things are looking with this appeal. Do you have a minute?”

“Sure.”

“Here’s the problem. In its district court brief opposing summary judgment, the appellant made a contract-based argument in defense that it is now making on appeal. The appellant challenges the district court’s judgment in favor of the plaintiff, saying that the court was wrong to conclude that the appellant had abandoned the defense during a telephonic hearing on the summary judgment motion. The appellant says there is no record to support that conclusion and it wants us to reverse based on the contract-based argument. Given the contract’s language, it looks like the argument that was supposedly abandoned is pretty strong.”

“Then I read the appellee’s brief.” Alexis continued. “Not only does the appellee say that the hearing was recorded and that the transcript supports the district court’s abandonment conclusion, but also that we should deem the argument forfeited as a penalty for the appellant violating FRAP Rule 10. We’ve granted the appellee’s request to file a supplemental appendix that includes the hearing transcript.”

Peirce nodded as though he understood. “I’ve seen appeals lost before because someone didn’t follow the Rules – if the appellant doesn’t give the Court what it needs to do its review, what does it expect? What’s the appellant’s reaction to the appellee’s brief?”

“That it thought the hearing was off the record and didn’t know that it was recorded.”

“Doesn’t sound right if it was a summary judgment hearing. Did you check the district court’s docket?”

“There’s an entry that the hearing transcript was filed, but that was after the appellant had filed its brief in our court.”

“Is there an entry for the hearing itself?”

“Let me check – yeah – there’s a minute entry of the hearing, and . . . there’s a reporter’s name listed.”

“It seems like someone’s been incredibly sloppy. Do you get the sense that something else is up? That someone’s trying to pull one over on the court?”

“Based on my reading of the transcript, maybe – I don’t know. The appellant also says that now that we have the transcript, there’s no reason to penalize it for the Rule 10 violation.”

“What’s the standard of review for the abandonment of the defense?”

“Abuse of discretion.”

“So,” said Peirce, “let me get this straight. The appellant says the district court was wrong to conclude that a contract-based argument was abandoned during a hearing, but then doesn’t get the transcript of the hearing to support that position on appeal, even though Rule 10 says it has to do that. Instead, it just asserts that there’s no record to support that it abandoned its defense. The appellee proves that it was possible to get a transcript by doing so to support its counter-argument on appeal. The appellant now wants our court to accept its dubious explanation for why it didn’t get the transcript, ignore its Rule 10 violation, decide that the district court abused its discretion on the abandonment question, and decide the contract issue in its favor?”

“Well, when you put it that way, I think I know how I have to write up the opinion I’ve been asked to draft.”

*************

The above is based in part on the Third Circuit’s decision in Lehman Bros. Holdings, Inc. v. Gateway Funding Diversified Mortgage Servs., L.P., 785 F.3d 96 (3d Cir. 2015).  As Judge Hardiman began the court’s opinion, “This appeal presents us with an opportunity to emphasize the importance of following the rules.”