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David Boies Gets a Letter From the Appeals Court Chief Clerk
Wednesday, December 03 2008 @ 07:51 PM EST

OK. I'm kidding around. It's probably just a form letter, not directed particularly to Boies or any other lawyers cc'd on the letter. It's from the Clerk of the Court of the Appeals Court for the Tenth Circuit. It's full of instructions, which will show you why appellate practice can be very annoying and why it costs you even if you paid your lawyer already ("In addition to the docketing statement, all transcripts must be ordered within 10 days of the date of this letter.... An original and 7 copies of briefs must be filed.")

Given the history, you'll have to forgive me for smiling when I read the following:

Motions for extensions of time to file briefs and appendixes are not favored and will not be granted unless they comply with 10th Cir. R. 27.3.
They don't know the Boies Boyz like we do, huh? Well, time will tell who wins that battle. My money is on the BBs. Meanwhile, the letter answers a question I had, which is that in their opening brief, which must be filed soon ("within 40 days after the date on which the district clerk notifies the parties and the circuit clerk that the record is complete for purposes of appeal"), SCO can appeal any "appropriate" aspect of the case they want to, as they are not limited to the very brief notice of appeal. So, even though they only mentioned by name the August 2007 order and the final judgment, they can bring up the July 2008 decision and the decision on the earlier Novell motion to have a trial before only a judge, not by jury.

So, this letter tells us where to find answers to our questions too.

You'll excuse me if I don't detail precisely what they are supposed to do. They sometimes goof when I stay silent about things, as happened in the abortive attempt to appeal the DaimlerChrysler decision, which I saw coming but didn't write about at the time. Anyway, hitting them with a cluebat is above my pay grade, as they say. This is more important than the DaimlerChrysler appeal, though, so they'll likely get this one right, with or without me.

Here's the docket entry:

569 - Filed: 12/01/2008
Entered: 12/02/2008
USCA Case Number
Docket Text: USCA Case Number Case Appealed to Tenth Circuit Case Number 08-4217 for [567] Notice of Appeal, filed by SCO Group. (jmr)
If any of you practice in the Appeals Court for the Tenth Circuit, I'd be interested to know if this letter is typical in all its parts.

Here's the letter as text:

***************************************

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
OFFICE OF THE CLERK
Byron White United States Courthouse
[address, phone]

Elisabeth A. Shumaker
Clerk of the Court

Douglas E. Cressler
Chief Deputy Clerk

December 01, 2008

Mr. David Boies
Boies Schiller & Flexner
[address]

Mr. Brent O. Hatch
Hatch, James & Dodge
[address]

RE: 08-4217, SCO Group v. Novell, Inc.
Dist/Ag docket: 2:04-CV-00139-DAK

Dear Counsel: This appeal was docketed today. For your convenience, copies of the Tenth Circuit Rules, effective January 1, 2008, and the Federal Rules of Appellate Procedure, effective December 1, 2007, are available on the court's website at http://www.ca10.uscourts.gov. You may also obtain a copy of the rules by calling this office. Effective September 4, 2007, counsel must also comply with the court's new General Order, which takes effect that day. You may find the order on the court's website. We invite you to contact us with any questions you may have about our operating procedures. Please note that all court forms are now available on the court's web site. Outlined below are some of the requirements for prosecuting this appeal.

Attorneys must complete and file an entry of appearance form within ten days of the date of this letter. See 10th Cir. R. 46.1(A). Pro se parties must complete and file the form within thirty days of the date of this letter. Appellant's failure to enter an appearance may cause the appeal to be dismissed. An appellee who fails to enter an appearance may not receive notice or service of orders.

Although attorneys who file a notice of appeal have technically entered an appearance, and may not withdraw without the court's permission, counsel must still file a separate entry of appearance form. For criminal appeals, please note the court will require trial

counsel to continue the representation whether retained or appointed, even if you did not sign the notice of appeal. See 10th Cir. R. 46.3(A). This continuity of counsel ensures that any criminal defendant who wishes to appeal has that appeal perfected.

Generally, the court will not allow counsel to withdraw until the docketing statement is filed, necessary transcripts are ordered, and the designation of record is submitted. If there is an issue regarding the defendant's eligibility for the appointment of counsel, an appropriate motion must be filed in the district court. See 10th Cir. R. 46.4(A).

You are required to file a docketing statement within 10 days of filing the notice of appeal. If you have not yet filed that pleading, you should do so within 10 days of the date of this letter. Please note that under local rule 3.4(C), the appellant is not limited to the issues identified in his docketing statement and may raise other appropriate issues in the opening brief. In addition to the docketing statement, all transcripts must be ordered within 10 days of the date of this letter. If no transcript is necessary, you must file a statement to that effect.

Appellant is not required to file a designation of record, but will be required to file an appendix with appellant's opening brief. See 10th Cir. R. 10.2(A) and 30.1.

Appellant must file an opening brief and appendix within 40 days after the date on which the district clerk notifies the parties and the circuit clerk that the record is complete for purposes of appeal. See 10th Cir. R. 31.1(A)(1). Motions for extensions of time to file briefs and appendixes are not favored and will not be granted unless they comply with 10th Cir. R. 27.3.

Briefs must satisfy all requirements of the Federal Rules of Appellate Procedure and Tenth Circuit Rules. See Fed. R. App. P. 28 and 32 and 10th Cir. R. 28.1, 28.2, 32.1 and 31.3 when applicable. An original and 7 copies of briefs must be filed. See 10th Cir. R. 31.5. Appendixes must satisfy the requirements of 10th Cir. R. 30.1(A) and 30.1(C) and 2 copies must be filed. See 10th Cir. R. 30.1(D).

Please contact this office if you have questions.

Sincerely,

[signature]
Elisabeth A. Shumaker
Clerk of the Court

cc: David E. Melaugh
John P. Mullen

2

  


David Boies Gets a Letter From the Appeals Court Chief Clerk | 151 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
David Boies Gets a Letter From the Appeals Court Chief Clerk
Authored by: Anonymous on Wednesday, December 03 2008 @ 08:09 PM EST
But what happens to Novell's promise to re-activate the claims they left, if
t$COg decides to do all this? Will they be able to re-activate them, as it
were, at a later time?

[ Reply to This | # ]

News Picks
Authored by: Zarkov on Wednesday, December 03 2008 @ 08:38 PM EST
Titles Help..

[ Reply to This | # ]

The correct rule for time to file extensions
Authored by: Anonymous on Wednesday, December 03 2008 @ 09:28 PM EST
According to what I believe are the most recent copy of the local Rules for the 10th circuit court of appeals (you can find the original here, Motions to extend time are Rule 27.4, not 27.3.

Original is a PDF, so I may have some typos, but here's a rough transcript of the rule. It reads almost like a laundry list of "Things SCO doesn't like to do." :)

27.4 Motions to Extend Time
(A) Disfavored. Extensions of time to file briefs are disfavored.
(B) Content. A motion to extend time must:
(1) State the brief's due date;
(2) Contain a statement of the opposing party's opinion on the relief requested or why the moving party was unable to learn the opposing party's opinion and;
(3) List any prior such motion and the court's action on it.
(C) Requirements The motion must establish that it will not be possible to file the brief on time, even if the party exercises due diligence and gives priority to preparing the brief.
(1) All factual statements must be set forth with specificity
(2) Generalities - such as assertions that the purpose of the motion is not for delay and that counsel is too busy - are not sufficient.
(3) If the reason for the extension is that the transcript is not available, the motion must show that the transcript was timely ordered and paid for, or must explain why not.
(D) Reasons. Reasons that may merit consideration are that:
(1) other litigation presents a scheduling conflict, in which case the motion must:
(a) identify the litigation by caption, number, and court;
(b) describe the action taken in the other litigation on a request for continuance or deferment;
(c) state reasons why the other litigation should receive priority over the case in which the motion is filed;
(d) state reasons why other associated counsel cannot prepare the brief for timely filing or relieve movant's counsel of the other litigation; and
(e) recite any other relevant circumstances.
(2) the case is so complex that an adequate brief cannot reasonably be prepared by the due date, in which case the motion must state facts demonstrating the complexity; and
(3) counsel will suffer extreme hardship, in which case the motion must state the nature of the hardship
(E) Criminal Cases. A motion to extend time to file a brief in a criminal case must also state the custody status of the defendant.
(F) Time to File. A motion to extend time to file a brief must be filed at least 5 days before the brief's due date, unless the reasons for the request did not exist or were unknown earlier.

[ Reply to This | # ]

OT - off topic thread here
Authored by: Anonymous on Wednesday, December 03 2008 @ 10:18 PM EST
Please make links clicky

[ Reply to This | # ]

OT - Real off topic thread here
Authored by: Totosplatz on Wednesday, December 03 2008 @ 10:21 PM EST
Please make links clicky - sorry for the anon post

---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location
varies).

All the best to one and all.

[ Reply to This | # ]

David Boies Gets a Letter From the Appeals Court Chief Clerk
Authored by: nola on Thursday, December 04 2008 @ 08:40 AM EST
>You'll excuse me if I don't detail precisely what they are supposed to do.

Well, that might be construed as "giving legal advice" :))

[ Reply to This | # ]

Are we back to killing trees?
Authored by: rsteinmetz70112 on Thursday, December 04 2008 @ 02:18 PM EST
I haven't read deep into the rules just yet but the requirement for seven copies
indicates we are back to paper filings.

So does that mean that stuff won't be on PACER and someone will need to make
runs to get stuff from the court?

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Corrections Thread
Authored by: artp on Thursday, December 04 2008 @ 11:28 PM EST
Better late than never ?

Or do I need to be corrected ?? ;-)

Summary of change in title block, please.
Eror -> Error


---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Wanna bet? - David Boies Gets a Letter From the Appeals Court Chief Clerk
Authored by: Anonymous on Saturday, December 06 2008 @ 07:27 AM EST
"Motions for extensions of time to file briefs and appendixes are not
favored and will not be granted unless they comply with 10th Cir. R.
27.3."

"They don't know the Boies Boyz like we do, huh? Well, time will tell who
wins that battle. My money is on the BBs."

I'll take that bet. I seriously doubt the appellate court concerns its self
about whether their decision will be reversed on appeal if they fail to grant an
extension. I have the feeling the appeals court doesn't need to put up with that
nonsense.

[ Reply to This | # ]

clickys - David Boies Gets a Letter From the Appeals Court Chief Clerk
Authored by: Anonymous on Saturday, December 06 2008 @ 07:46 AM EST
The letter from the appeals court referenced the page where the Tenth Circuit Rules, effective January 1, 2008, and the Federal Rules of Appellate Procedure, effective December 1, 2007, are located.

For your convenience here is the clicky for that web site, followed by the clicky for the document itself which is a .pdf.

http://www.ca10.uscourts.gov./
This is a 178k document. It complained because I didn't have Adobe Reader 8 or above.

http://www. ca10.uscourts.gov./downloads/2008_init_appeal.pdf

[ Reply to This | # ]
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