FRAP 38 Sanctions — Standards (Third Circuit) — Court Exercises Caution to Avoid Chilling Novel Theories

From Premier Pork, LLC. V. Westin Packaged Meats, Inc., 2011 U.S. App. LEXIS 1262 (3d Cir. Jan. 19, 2011):

Federal Rule of Appellate Procedure 38 authorizes us to sanction an appellant who files a frivolous appeal by "award[ing] just damages and single or double costs to the appellee." Such damages are awarded in the case of a frivolous appeal "'as a matter of justice to the appellee and as a penalty against the appellant.'" Hilmon Co. (V.I.) Inc. v. Hyatt Int'l, 899 F.2d 250, 253 (3d Cir. 1990) (quoting Fed. R. App. P. 38 advisory committee's note). An appeal is frivolous if, applying an objective standard, it is wholly without merit. Quiroga v. Hasbro, Inc., 943 F.2d 346, 347 (3d Cir. 1991). In making this determination, a court may consider whether "the appeal was taken in bad faith with an intent to delay [or] harass, or [whether] the arguments of the appeal had no basis in law or were totally without merit." In re Hall's Motor Transit Co., 889 F.2d 520, 523 (3d Cir. 1989). While this Court is cognizant of the burden to appellees that stems from the filing of frivolous appeals, we nonetheless exercise caution in classifying appeals as frivolous "so that novel theories will not be chilled and litigants advancing any claim or defense which has colorable support under existing law or reasonable extensions thereof will not be deterred." Hilmon, iiiiiii 899 F.2d at 253.

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