Today’s installment comes to us courtesy of the First Circuit. Last week, the court issued its decision in Sparkle Hill, Inc. v. Interstate Mat Corp., No. 14-1618. The case itself is an action seeking statutory damages of $500 (to be trebled, of course) for the sending of an unsolicited fax advertisement in May of 2006 in violation of the federal Telephone Consumer Protection Act. I confess that I had no idea that: (a) Congress had created such a federal cause of action; or (b) anyone was really making much use of fax machines in 2006. What caught my attention about this case is that the opinion centers on one of the scourges of litigation practice – the practice by some lawyers of saving arguments for their reply briefs.
In Sparkle Hill, the plaintiff did not respond to the statute of limitations defense raised by the defendant’s summary judgment motion. The District Court took the plaintiff’s failure to respond as a concession, and entered summary judgment in the defendant’s favor, though not without also addressing the merits of the summary judgment defense.
On appeal, the plaintiff’s opening brief was devoted exclusively to the merits of the statute of limitations defense. The plaintiff did not address the District Court’s decision to hold it accountable for its lack of opposition to the defendant’s limitations defense – the actual, procedural basis for the ruling below – until its reply brief, when the defendant would not have an opportunity to respond.
Suffice it to say, the First Circuit was not impressed. After noting the court’s clear precedent that issues raised for the first time in an appellant’s reply brief are deemed waived, Judge Kayatta offered the following refreshingly blunt assessment: “Sandbagging of this type deprives the appellee of an opportunity to respond in writing on the issue. And any attempt to remedy that unfairness by allowing a second opposition, or sur-reply, brief can both increase costs for the appellee and result in considerable delay.” Amen, Judge.
The First Circuit clearly has no patience for sandbagging, and in Sparkle Hill basically told the Bar to “knock it off.” Ignore the lesson at your peril.
