Reply Briefs — Why Do We Even Bother?

Did the plaintiff act sanctionably in Liberty Sav. Bank v. GE Capital Corp., 236 Fed. Appx. 353, 2007 U.S. App. LEXIS 12606 (10th Cir. 2007)? The District Court didn’t find any specifics in defendant General Electric’s moving brief and that ended the matter. In denying GE's Rule 11 motion, the District Court wrote:

In support of its general claims, GE incorporates nondescriptly the entire record by reference and six papers GE filed in the course of the litigation.... Such general references do not approach the quantum of proof necessary to sustain GE's burden of persuasion. I have neither the time nor the inclination to do GE's work by parsing punctiliously through each individual claim for relief and each of the papers cited generally by GE to determine if the exacting standards of Rule 11 have been satisfied in the context of GE's conclusory assertions. As the Seventh Circuit noted aptly, "[j]udges are not like pigs, hunting for truffles buried in the briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

But, GE pointed out on appeal, it had set forth specifics in its reply brief in the District Court. Held, sorry, too late:

"[G]enerally we do not consider arguments raised for the first time in reply briefs." [Citation omitted.] Similarly, the district court was entitled to judge the adequacy of GE's support for its sanctions motion without reference to the more specific citations supplied belatedly in GE's reply brief.

In any event, on the merits, the lower court’s decision was ‛not arbitrary, capricious, whimsical or manifestly unreasonable.“

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