     United States Court of Appeals for the Federal Circuit




                              MISCELLANEOUS No. 774




                            IN RE VIOLATION OF RULE 28(c)




      Blas P. Arroyo, Alston & Bird LLP, of Charlotte, North Carolina, for
defendant/counterclaimant cross-appellant, The Esab Group, Inc. Of counsel was
Richard M. McDermott.

      Edward A. Haffer, Sheehan Phinney Bass & Green, PA, of Manchester, New
Hampshire, for plaintiff/counterclaim defendant-appellant, Centricut, LLC (New
Hampshire), and counterclaim defendant-appellant, Centricut, LLC (Delaware). Of
counsel were Michael J. Bujold and Neal E. Friedman, Davis & Bujold, P.L.L.C., of
Manchester, New Hampshire.

Appealed from:   United States District Court for the District of New Hampshire

Judge Steven J. McAuliffe
 United States Court of Appeals for the Federal Circuit


                               MISCELLANEOUS No. 774


                           IN RE VIOLATION OF RULE 28(c)


Before MICHEL, CLEVENGER, and DYK, Circuit Judges.

PER CURIAM.

                                         ORDER

       On September 10, 2004, at oral argument in Centricut LLC v. Esab Group, Inc.

(Nos. 03-1574, -1614), this court issued an order to Blas P. Arroyo, counsel for The

Esab Group, Inc. (“counsel”), to show cause why sanctions should not be imposed for

the filing of a Cross-Appellant’s Reply Brief in violation of Fed. R. App. P. 28(c).

Counsel submitted a written response urging that the filing of a non-conforming Reply

Brief, while in violation of Rule 28(c), did not merit sanctions.      We conclude that

sanctions are not warranted in this case. However, in the future, similar violations of the

Federal Rules of Appellate Procedure, or of our Local Rules of Practice, will likely result

in sanctions.

                                      DISCUSSION

       The underlying case here involves a suit for patent infringement brought by The

Esab Group, Inc. (“Esab”) against Centricut LLC (New Hampshire) and Centricut LLC

(Delaware) (collectively “Centricut”). Following a bench trial, the district court found

infringement and granted damages in favor of Esab.          Centricut appealed from the

judgment of infringement and objected to the measurement of damages. Esab cross-



Misc. No. 774
appealed, seeking to modify the judgment on damages. The merits of the appeal and

cross-appeal have not been decided.

      Rule 28(c) of the Federal Rules of Appellate Procedure provides, in pertinent

part: “An appellee who has cross-appealed may file a brief in reply to the appellant’s

response to the issues presented by the cross-appeal.” Rule 28(c) limits the content of

Cross-Appellant’s Reply Brief to “issues presented by the cross-appeal,” and the

Practice Notes promulgated by this court explicitly warn cross-appellants against

exceeding the scope of Rule 28:

      [C]ounsel are cautioned, in cases involving a proper cross-appeal, to limit
      the fourth brief to the issues presented by the cross-appeal. In all cases,
      counsel should be prepared to defend the filing of a cross-appeal and the
      propriety of arguments presented in the fourth brief at oral argument.

      Federal Circuit Rule 28 (2004) and Practice Note (Cross-Appeals). In large part,

the Cross-Appellant’s Reply Brief filed by Esab addressed issues pertinent only to the

main appeal. Indeed, counsel for Esab conceded during oral argument that the vast

majority of the Cross-Appellant’s Reply Brief—roughly 20 of the brief’s 23 pages—

addressed issues relating only to the main appeal and not to the cross-appeal.

      Contrary to counsel’s argument that there is a lack of clarity in the rules

concerning cross-appeal reply briefs, the language of Rule 28(c) is perfectly clear. The

reply brief in the cross-appeal must be limited to cross-appeal issues and must not

again address the main appeal. The fact that Federal Circuit Rule 31, which governs

this court’s procedures for filing briefs (including cross-appeal reply briefs) does not

explicitly reference Rule 28’s content limitations is of no import. Rule 28 is clear, and

must be complied with.




Misc. No. 774                           2
       This court has authority to impose sanctions for violations of the Federal Rules of

Appellate Procedure or of its own rules.        Federal Rule of Appellate Procedure 46(c)

provides that a “court of appeals may discipline an attorney who practices before it . . .

for failure to comply with any court rule.” 1

       We accept counsel’s representation that the violation of Rule 28(c) in this case

was inadvertent. So far as we have been able to determine, this court has not in the

past exercised its authority to impose sanctions for “inadvertent” violations of applicable

court rules. Under these circumstances, we conclude that the imposition of sanctions in

this case is not appropriate. However, we wish to make clear that it is the duty of

counsel to familiarize themselves with applicable rules, and that, in future cases, serious

violations of applicable rules, whether or not “inadvertent,” will potentially subject

counsel to sanctions.

       This court, in order to get its work done, must insist on strict compliance with its

rules. Violations of Rule 28(c)—and of other procedural rules such as Federal Circuit

Rule 47.6 which prohibits the citation of nonprecedential opinions, or the rules governing

situations in which a cross-appeal is appropriate—are all too frequent.      In addition to

imposing an unfair burden on opposing parties, violations of our rules also burden the

court. The court must consider a large number of appeals each year. It can only




       1
              Federal Rule of Appellate Procedure 46(c) provides in its entirety:

              Discipline: A court of appeals may discipline an attorney who
              practices before it for conduct unbecoming a member of the bar or
              for failure to comply with any court rule. First, however, the court
              must afford the attorney reasonable notice, an opportunity to show
              cause to the contrary, and if requested, a hearing.


Misc. No. 774                              3
conduct its work fairly and efficiently if counsel cooperate by abiding by the pertinent

rules.



         Accordingly,

         IT IS ORDERED THAT:

         No sanctions be imposed in the present case.



                                                FOR THE COURT



         Nov-5 2004                             S/ Jan Horbaly
         Date                                   Jan Horbaly
                                                Clerk




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