General Mills v. Kraft Foods (Fed. Cir. 2007)
On petition for rehearing, the CAFC panel clarified its holding that a defendant’s filing of a motion dismiss does not toll the deadline for filing an answer or counterclaim to an amended complaint unless the motion to dismiss is filed before the date that the original answer would have been due.
Under the Federal Rules of Civil Procedure, a response to an amended complaint is governed by Rule 15, that does not provide for tolling. The tolling section (Rule 12(b)(4)) only applies to timing of responses filed under Rule 12 – such as answering an original complaint.
Because Rule 15 allows a response to an amended complaint either within 10 days or within the time for responding to the original complaint, the due date for responding will be tolled if the motion to dismiss is filed before the original answer would have been due.
Practice Tip: The court has discretion to push-back the response due date. If you are filing a motion to dismiss an amended complaint, first request that the date be tolled.
- Discussion of the original CAFC Opinion.
- Crafty lawyers may now choose to file amended complaints to trip-up their opponents. . .
- This is now a case begging for a student law review article or note.
I agree with your last sentence, Anon. I was thinking that the CAFC would just choose to disregard such a citation, not punish counsel.
I think you’re right that we’re at an impasse.
My basic thought is that an attorney practicing in the CAFC shouldn’t have to look at the local rules of every court whose cases he cites to the CAFC. If the CAFC rules don’t prohibit citing non-precs from the Ninth Circuit, then that should be the end of the inquiry.
If, of course, the case in the CAFC involves a legal question where the CAFC has to apply the law of another circuit, then that circuit’s rules about the authoritative character of its opinions would be relevant in determining what the law of the other circuit is. But even then, a litigant shouldn’t be penalized for citing non-precedential decisions where the CAFC’s rules don’t prohibit it.
Well, anon, it looks like neither of us is convincing the other. To sum up, it is improper to cite an unpublished, pre-2007 Federal Circuit opinion to the Federal Circuit. In re Laboratory Computer Systems, Inc., 2000 WL 1062081 n.2 at *1 (Fed. Cir. 2000) (“Schumer cites three nonprecedential orders of this court in support of his argument that mandamus should be denied in this case. Schumer is reminded that citation to nonprecedential orders or opinions is improper.”) It is also improper to cite an unpublished, pre-2007 Ninth Circuit opinion to the Ninth Circuit. Hart, supra.
But…it’s okay to cite a pre-2007 unpublished Ninth Circuit opinion to the CAFC.
“Anon, are you aware of how strongly the Ninth Circuit feels about citation to its unpublished decisions?”
I am, but the Ninth Circuit’s feelings are hardly relevant when the CAFC is deciding a question of civil procedure in a case that came from a district court in the Eighth Circuit.
The CAFC pointed out to Kraft that “many” of its cases were distinguishable on the ground that they “involve situations in which Rule 12(a)(4)(A) would toll the deadline for answering under our interpretation of the rules.” If the Ninth Circuit case–which Kraft cited–fits in that category, it seems strange (or at least pedantic) to suggest that the CAFC should have omitted that case from the string cite because that case couldn’t be cited in the Ninth Circuit.
Anon, are you aware of how strongly the Ninth Circuit feels about citation to its unpublished decisions?
“Appellant’s opening brief cites Rice v. Chater, No. 95-35604, 1996 WL 583605 (9th Cir. Oct.9, 1996). Rice is an unpublished disposition, not reported in the Federal Reporter except as a one-line entry in a long table of cases. See Decisions Without Published Opinions, 98 F.3d 1345, 1346 tbl. (9th Cir.1996)….We ordered counsel to show cause as to why he should not be disciplined for violating Ninth Circuit Rule 36-3.”
Hart v. Massanari, 266 F.3d 1155, 1158-59 (9th Cir. 2001).
The Ninth Circuit was very unhappy with the new FRAP 32.1 (citation of unpublished opinions after 1/1/07), and they made it clear in their new circuit rule that they still consider it improper to cite pre-2007 decisions. Note that the Tenth Circuit (a decision from which is also cited by the CAFC) permits such citation.
So, I still find it odd that the CAFC would cite an unpublished Ninth Circuit decision when the Ninth Circuit would sanction counsel for doing so.
I see nothing strange about it.
District court opinions don’t bind anyone to anything except for purposes of res judicata and waiver, yet the CAFC and other courts of appeals cite those on occasion if they contain persuasive observations or illustrate conventional practice.
In this case, Kraft made an argument, and supported it with a bunch of cases that don’t bind anyone to anything (in addition to Olsen, the CAFC discussed several district court cases and a non-precedential case from the 10th Circuit (Moomchi v. UNM)).
Basically, Kraft argued that the CAFC misinterpreted Rule 12, and supported its argument with nonbinding opinions from other courts. The CAFC panel’s reasons for rejecting Kraft’s argument *also* served to distinguish the cases Kraft cited, so it hardly seems strange or inappropriate for the court to have pointed that out.
I’d say that a better practice tip would be to go ahead and file an answer to the amended complaint with your counterclaims within 10 days — why take the chance?
Anon, I understand what the CAFC was doing, but I’m surprised that they would do it. Had this been before the Ninth Circuit, the court wouldn’t have distinguished Olson. Instead, it would have dropped a footnote that it will not consider the party’s improperly cited, unpublished decision. It might also have warned counsel not to repeat such a rule violation.
The CAFC did nothing improper here, but it considered this Ninth Circuit decsion in a way the Ninth Circuit itself would have insisted on disregarding.
Mr. Dhuey, it looks like the reason the CAFC cited Olsen is that Kraft cited it in its petition for rehearing, and the CAFC is telling Kraft that Olsen doesn’t help, regardless of whether it’s precedential.
The use of the “see also” cite rather than including Olsen in the string cite makes that less than clear, but I think the reason the court did that was that Wolflake and Pinnacle more clearly “involve[d] situations in which Rule 12(a)(4)(A) would toll the deadline for answering under our interpretation of the rules,” and so the court wanted to put those cases first. But the Bluebook says that court of appeals decisions go before district court decisions, when both types of decisions fall within the same signal. So Wolflake and Pinnacle go first under the “e.g.” signal, and Olsen goes under the “see also” signal, but all three cases are “cases that Kraft cites” that “involve situations in which Rule 12(a)(4)(A) would toll the deadline for answering under our interpretation of the rules.”
Another interesting procedural tidbit: the CAFC cites Olsen v. Hayes, No. 99-16815, 2000 U.S. App. LEXIS 8653 (9th Cir. Jan. 28, 2000) (unpublished). It would have been improper for a party to cite this decision in the Ninth Circuit. While some circuits have revised their local rules to allow citation to pre-2007 unpublished decisions as persuasive authority, the Ninth Circuit does not. See Ninth Circuit Rule 36-3(c).
It’s a bit odd to see the CAFC cite this case when the Ninth Circuit itself refuses to give it any precedental value.
Thanks Lee – The typo is fixed.
How can a “motion to dismiss [be] filed before the date that the original complaint would have been due”?
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