This is not a post about a Second Circuit case (it's about a Seventh Circuit case), but the sanction imposed by Judge Easterbrook for a frivolous motion is worth mentioning to all appellate practitioners. The appellant in Custom Vehicles, Inc. v. Forest River, Inc.
moved to have the Court strike sections of its opponent's brief, claiming that it contained unsupported assertions of fact. The Judge acknowledged that it was possible that the appellant's reading of the record might be correct and the appellee's wrong, but then asked why the appellant believed that the Court was going to redact his adversary's brief. He explained that the proper method of pointing out errors in an appellee's brief is to point them out in a reply brief. Judge Easterbrook noted that the"judiciary has quite enough to do deciding cases on their merits" and pointed out that there was no rule for "a judicial blue pencil."
As a sanction, Judge Easterbrook deducted twice the length of the motion from the permissible length of a reply brief.
The decision can be found here
. Oh, and thanks to Howard Bashman of How Appealing
for pointing this decision out