Commercial Litigation and Arbitration

Appeals — Issues Not Considered: (1) First Impression Raised Initially in Reply Brief; (2) Identified in Notice of Appeal but Not Briefed; or (3) Briefed Merely by Incorporating by Reference Arguments Made in District Court

Three cases:

United States v. Jenkins, 2009 U.S. App. LEXIS 17221 (8th Cir. Aug. 4, 2009):

In her reply brief and at oral argument, Jenkins argued that her conviction of aggravated identity theft cannot stand because the government did not charge her with access device fraud. Without separate counts and convictions of the predicate offense under § 1029(a)(5), Jenkins contends that she cannot be charged or convicted under § 1028A. This issue of first impression should have been raised earlier, and we ordinarily do not address issues raised for the first time in an appellant's reply brief. See United States v. Coplen, 533 F.3d 929, 930 (8th Cir. 2008) (declining to address issues first raised in reply brief).

Janky v. Lake County Convention & Visitors Bureau, 2009 U.S. App. LEXIS 17207 (7th Cir. Aug. 3, 2009):

The Bureau also appealed from the district court's ruling on another motion for sanctions (Court of Appeals Case No. 081606). However, the Bureau never mentioned that issue in its principal or reply brief — not so much as an argument header! Perhaps the Bureau was overwhelmed by the sheer amount of paper filed in this case. Whatever the reason, this issue is waived for lack of development. See Kochert v. Adagen Med. Int'l, Inc., 491 F.3d 674, 679 (7th Cir. 2007).

Kirkland v. Guardian Life Ins. Co. of Am., 2009 U.S. App. LEXIS 18633 (11th Cir. Aug. 19, 2009):

Kirkland argues the district court erred by granting summary judgment to Guardian and by denying him summary judgment. Kirkland submits that he asserted three theories of recovery: breach of contract, fraud, and violations of RICO laws. However, he does not discuss the fraud or RICO claims on appeal, but, instead, only refers to documents filed in the district court. Thus, he has abandoned these claims. See Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004) (holding that a party may not incorporate by reference arguments presented to the district court, but must specifically and clearly identify the issues presented for review, with citations to the authorities and portions of the record on which the party relies)

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