Commercial Litigation and Arbitration

Fed.R.Civ.P. 83 Precludes Striking Brief on Ground It Lacks Tables of Contents and Authorities Required by Local Rule (Nonwillful Violation)

From Hanks v. Shinseki, 2010 U.S. Dist. LEXIS 76660 (N.D. Tex. July 28, 2010):

Hanks has moved to strike the defendants' motion, the brief in support thereof, and the appendix in support thereof. As to the defendants' motion and brief, Hanks contends that both should be stricken because the brief is longer than ten pages but does not include a table of contents or table of authorities and thus does not comply with Local Rule 7.2(d). *** However, striking the motion and the brief on the ground that they do not comply with Local Rule 7.2(d) would run afoul of Federal Rule of Civil Procedure 83.2. Local Rule 7.2(d) imposes a requirement of form on all briefs submitted in the Northern District of Texas. See N.D. Tex. Loc. R. 7.2(d) ("A brief in excess of 10 pages must contain: 1. a table of contents with page references; and 2. an alphabetically arranged table of cases, statutes, and other authorities cited, with page references to the location of all citations."). "A local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply." Fed.R.Civ.P. 83(a)(2). The defendants have a right to have their motion for summary judgment adjudicated on the merits. See Brown v. Crawford County, Georgia, 960 F.2d 1002, 1009 (11th Cir. 1992) ("Under Rule 56, a party is entitled to make a summary judgment motion . . . .") (emphasis in original). See generally Amos v. Palmetto Government Benefit Administrator, 122 F. App'x. 105, 109 (5th Cir. 2005) (per curiam) ("[T]his circuit has 'adopted a policy in favor of resolving cases on their merits . . . .") (quoting Rogers v. Hartford Life and Accident Insurance Company, 167 F.3d 933, 936 (5th Cir. 1999)); Waste Control Specialists, LLC v. Envirocare of Texas, Inc., 199 F.3d 781, 786 (5th Cir.) (noting that resolving a case on a motion for summary judgment is a method of resolving the case on its merits), superseded in part on other grounds on rehearing by 207 F.3d 225, cert. denied, 531 U.S. 956 (2000).

Rule 83(a)(2) thus bars the court from striking the defendants' motion for summary judgment and brief in support thereof for the sole reason that the brief did not contain the table of contents and table of authorities required by Local Rule 7.2(d). Were the court to do so, it would be enforcing Local Rule 7.2(d) in a way that would cause the defendants to lose their right to have the court adjudicate their motion for summary judgment. Hanks does not argue — and nothing in the record suggests — that the defendants' failure to comply with Local Rule 7.2(d) was willful. Therefore, the portion of Hanks's motion to strike that seeks to strike the defendants' motion for summary judgment and brief in support thereof must be denied.

[Footnote 31] Counsel for the defendants has explained that she believed her fifteen-page brief did not need a table of contents or a table of authorities because "[t]he first five pages contain a list of facts upon which the brief is based" and she "did not count the factual recitation in determining whether a table of contents and a table of authorities was required." *** The court finds this explanation sufficient for purposes of determining whether the defendants' failure to comply with Local Rule 7.2(d) was willful. However, for purposes of future filings, counsel for the defendants is advised to abide by Local Rule 7.2(c), which instructs that only the pages containing the table of contents and table of authorities may be excluded from the determination of a brief's length. See N.D. Tex. Loc. R. 7.2(c).

[Footnote 32] What is more, Hanks has cited no statute, rule, or other authority that she claims empowers this court to strike the defendants' motion for summary judgment and brief in support thereof. Federal Rule of Civil Procedure 12(f) grants the court discretion to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter," but Rule 12(f) does not control here. It "applies only to pleadings and has no applicability to motions made in pursuit of or in opposition to summary judgment." Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997), abrogated in part on other grounds by National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002); see also Trotter v. Jack Anderson Enterprises, Inc., 818 F.2d 431, 436 (5th Cir. 1987) (citing Fed. R. Civ. P. 7(a) and In re Zweibon, 565 F.2d 742, 747 (D.C. Cir. 1977)); Perea v. Hunter Douglas Window Fashions, Inc., 2008 WL 511409, at *5 n.3 (D. Colo. Feb. 22, 2008) ("Even assuming that a . . . brief falls within the definition of a 'pleading,' Rule 12(f) involves the striking of certain specified, objectionable 'matter' within such a pleading, not the wholesale striking of the pleading itself."). It is true that included within a district court's "certain implied inherent powers that are necessary to the exercise of all others" is the power to fashion appropriate sanctions for a party's failure to comply with a local rule. Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 150 (4th Cir. 2009) (citations and internal quotation marks omitted). But Hanks has not identified any authority that supports her contention that this court's power to fashion an appropriate sanction for a violation of a local rule extends to the draconian penalty of striking motions and briefs in their entirety.

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