In Conboy v. United States Small Business Admin., No. 20-1726 (3d Cir. Mar. 19, 2021), the Third Circuit issues a Fed. R. App. P. 38 sanction against a lawyer whose appellate brief “was essentially a copy of the one he filed in the District Court.” To underscore the point, the panel attaches a red-lined copy of the briefs as appendixes.
Plaintiffs’ counsel’s “opening brief begins with a proper introductory sentence arguing that the District Court should not have granted summary judgment … but it quickly goes awry in the next paragraph: ‘The district court has subject-matter jurisdiction over this case . . . .’ … One could readily assume that the sentence included a typographical error, using ‘has’ instead of ‘had.’ But just two sentences later, the brief declares: ‘Venue is appropriately laid in the District Court of New Jersey . . . .’ … This second use of the present tense, denoting the wrong trial court, presages what comes after, which belies the notion of an honest mistake.”
The panel continues to tick through multiple places in the brief where the lawyer did not bother to edit out lines from the district court brief. “Counsel … simply took the summary judgment section of his District Court brief and copied and pasted it into his appellate brief, with minor changes such as swapping ‘Defendant’ for ‘Appellee.’ Compare Appendix A hereto [the District Court brief], with Appendix B [the appellant’s opening brief]. This is not proper appellate advocacy.”
Defendants moved for sanctions against plaintiff’s counsel in the District Court under Fed. R. Civ. P. 11 and 37, and on appeal under Rule 38. Once again, plaintiff-appellant’s counsel filed “yet another copy-and-paste job. Counsel copied [plaintiff’s] previous opposition to sanctions in the District Court under Civil Rules 11 and 37—with only insignificant alterations and additions. Compare Appendix C hereto, with Appendix A at 10–12.” This despite that the grounds for both motions were markedly different.
Because of counsel’s irresponsibility, the panel enters financial sanction against the lawyer. “It’s not easy to become a lawyer. “The practice of law is challenging, and even the best lawyers make mistakes from time to time. So we err on the side of leniency toward the bar in close cases. But the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.” The panel also affirms summary judgment.