Federal Circuit Court of Appeals warns that future appellate rule violations will likely result in sanctions

In Re Violation of Rule 28(c) (Fed. Cir. 2004) (Unpublished Order)

At the district court, Esab Group won a multi-million dollar judgment against Centricut for infringement of Esab’s patent relating to plasma welding products.  Centricut appealed the judgment and the measurement of damages.  Esab cross-appealed, asking for a modification of the judgment on damages.

While not yet deciding on the merits of the case, the Federal Circuit gave Esab’s attorney a written reprimand for filing a reply brief in violation of Rule 28(c) of the Federal Rules of Appellate Procedure. 

Rule 28(c) limits the content of a cross-appeal reply brief to issues presented by the cross appeal.  Further, the Practice Notes accompanying Rule 28 specifically caution counsel to limit the reply brief “to the issues presented by the cross-appeal.”   However, Esab’s reply brief consisted of 23 pages, about 20 of which related only to the main appeal and not the cross appeal.

The appellate panel declined to impose sanctions against the offending attorney, but noted that “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.”

A decision on the merits of Centricut v. Esab Group is expected later this year.


Fed. R. App. P. 28(c) Reply Brief. The appellant may file a brief in reply to the appellee’s brief. 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. Unless the court permits, no further briefs may be filed. A reply brief must contain a table of contents, with page references, and a table of authorities-cases (alphabetically arranged), statutes, and other authorities with references to the pages of the reply brief where they are cited.