Moving To Strike Portions Of Appellate Brief Is Sanctionable In The Seventh Circuit

In Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725 (7th Cir. Sept, 25, 2006), Judge Easterbrook of the U.S. Seventh Circuit Court of Appeals issued an opinion as motions judge to publicize his practice of denying all motions to strike portions of appellate briefs and penalizing the moving party by reducing the size allowed for their merits brief.

He noted that the Federal Rules of Appellate Procedure contain no provision for a motion to strike, and that such a motion improperly attempts to have the motions judge decide part of the merits of the case in advance, as if he or she were a fourth member of the merits panel, through the act of editing the offending brief.

Judge Easterbrook announced that from now on he will penalize parties who move to strike by reducing the allotted length of their merits briefs by double the amount consumed by the motion papers.