Brief Stricken In False Claim Act Appeal Because Of Flagrant Violation Of Word-Count Certification

This case is getting around. If you missed it, you should know about Abner v. Scott Memorial Hospital, an opinion out of the 7th Circuit Appellate Court. The court ordered Abner to show cause why she should not be sanctioned for filing a brief longer than allowed by the rules without permission of the court.

The opinion grew from a summary judgment given to Scott Memorial in a False Claims Act case. Abner appealed the summary judgment. As required by Federal Rule of Appellate Procedure 32, her lawyer signed a certification that her brief was under the 14,000 word limit. In fact, the brief had more than 18,000 words.

In response to the rule to show cause, Abner’s lawyer conceded his brief was too long. He said he inadvertently misread the rule, and did not include everything in the word count that he should have. But the appellate court ruled that Rule 32 is not ambiguous, “hence [there was] no room for misinterpreting the rule.”

After his incorrect affidavit was discovered, Abner’s lawyer asked for leave to file a brief in excess of the word limit. The appellate court rejected that request because it “advance[d] no persuasive grounds for allowing an oversized brief to be filed, and so the brief is stricken.”

The appellate court ruled the appeal was meritless, and summarily affirmed the summary judgment. “To allow time for the appellants [Abner] to file a compliant brief and the appellees [Scott Memorial] to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.”

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