5th Cir. R. 31: Filing and Service of a Brief

31.1 Briefs - Number of Copies: Computer Generated Briefs. Only 7 paper copies of briefs need be filed. Where a party is represented by counsel who is exempt from electronic filing under 5TH CIR. R. 25.2, and counsel generates his or her brief by computer, the party also must submit an electronic version of the brief to the court. The filing party must serve unrepresented parties and counsel for separately represented parties in accordance with FED. R. APP. P. 31(b), and also must serve an electronic version of the brief on each party separately represented. However, the parties may agree in writing to waive service of paper copies of the brief and to be served with an electronic copy only. Electronic service may be in a form agreed to in writing by the parties, or by the same means as submitted to the court. The electronic copy of the brief must be filed on a CD, computer diskette, or such other electronic medium as the clerk may authorize.

The electronic version must: be prepared in a single Portable Document Format (PDF) file. (Briefs scanned into PDF are not acceptable); contain nothing other than the brief; have as the first page of the electronic file a brief cover page as required by FED. R. APP. P. 32(a)(2).

If submitted on a CD, diskette, or other authorized physical media, the electronic version must have a label containing the case name and docket number, and identifying the brief as the appellant’s, appellee’s, etc.

The proof of service must comply with FED. R. APP. P. 25(d)(1)(B) & (2).

31.2 Briefs - Time for Filing Briefs of Intervenors or Amicus Curiae. The time for filing the brief of the intervenor or amicus is extended until 7 days after the filing of the principal brief of the party supported by the intervenor or amicus.

31.3 Briefs - Time for Mailing or Delivery to a Commercial Carrier. The appellant must send his or her brief to the clerk not later than 40 days after the date of the briefing notice. Pursuant to FED. R. APP. P. 26(c), the appellee has 33 days from the appellant’s date of the certificate of service to place the appellee’s brief in the mail, file it with the clerk electronically where permitted, or to give it to a third-party commercial carrier for delivery within 3 days. This rule is effective ONLY when the appellant has effected service by mail or via delivery to a commercial carrier for delivery within 3 days and may not be combined with the additional time provisions of FED. R. APP. P. 26(c) to give the appellee 36 days to file a brief. The certificate of service required by FED. R. APP. P. 25(d) is placed in the brief as specified in 5TH CIR. R. 28.3, and must be dated. See 5TH CIR. R. 39.2 for limitations on recovery of certain mailing and commercial delivery costs.

31.4 Briefs - Time for Filing.

31.4.1 General Provisions. The court expects briefs to be filed timely and without extensions in the vast majority of cases. No extensions are automatic, even where the request is unopposed. Any requests for extensions should be made sparingly. No extension can be granted without good cause shown as required by FED. R. APP. P. 26(b), or without meeting the additional requirements contained in the 5TH CIR. R.

(a) A request for extension should be made as soon as it is reasonably possible to foresee the need for the extension. The clerk must receive a request for extension at least 7 days before the due date, unless the movant demonstrates, in detail, that the facts that form the basis of the motion either did not exist earlier or were not and with due diligence could not have been known earlier.

(b) As specified in 5TH CIR. R. 27.1, the movant must indicate that all other parties have been contacted and whether the motion is opposed. Movants should request only as much time as is absolutely needed. The pendency of a motion for extension does not toll the time for compliance.

31.4.2 Grounds for Extensions. As justification for extensions, generalities, such as that the purpose of the motion is not for delay or that counsel is too busy, are not sufficient. Grounds that may merit consideration for extensions are, without limitation, the following, which must be set forth if claimed as a reason in any motion for an extension beyond 30 days:

(a) Engagement of counsel in other litigation, provided such litigation is identified by caption, number, and court, and there is set forth:

(1) A description of any effort taken to defer the other litigation and of any ruling thereon;

(2) An explanation of why other litigation should receive priority over the case at hand; and

(3) Other relevant circumstances, including why other associated counsel cannot prepare the brief or relieve the movant's counsel of the other litigation.

(b) The matter is so complex that an adequate brief cannot reasonably be prepared when due.

(c) Extreme hardship will result unless an extension is granted, in which event the nature of the hardship must be set forth in detail.

31.4.3 Levels of Extensions. There are two levels of extensions: a Level 1 extension of 1-30 days from the original due date; and a Level 2 extension of more than 30 days from the original due date.

31.4.3.1 Level 1 Extensions. The clerk is authorized to act on or refer to the court Level 1 extensions. The court prefers that an unopposed request be made by telephone, but it may be by written motion or letter. When making the request, the movant must explain what good cause exists for the extension. If the extension is granted by telephone, the movant will immediately send a confirming letter to the clerk, with copies to all parties.

An opposed request for a Level 1 extension must be made by written motion setting forth why there is good cause. The motion must state the initial due date, whether any other extension has been granted, the length of the requested extension, and which parties have expressed opposition.

31.4.3.2 Level 2 Extensions. The clerk is authorized to act on or refer to the court Level 2 extensions. The request must be made by written motion, with copies to all parties, stating the initial due date, whether any other extension has been granted, the length of the requested extension, and whether the motion is opposed.

More than ordinary good cause is required for a Level 2 extension, and Level 2 extensions will be granted only under the most extraordinary of circumstances. The movant must demonstrate diligence and substantial need and must show in detail what special circumstances exist that make a Level 1 extension insufficient.

31.4.4 Extensions for Reply Briefs. The court greatly disfavors all extensions of time for filing reply briefs. The court assumes that the parties have had ample opportunity to present their arguments in their initial briefs and that extensions for reply briefs only delay submission of the case to the court.

I.O.P. - THE COURT CONTINUES TO RECEIVE A LARGE NUMBER OF MOTIONS REQUESTING EXTENSIONS OF TIME TO FILE BRIEFS, OR TO FILE BRIEFS OUT OF TIME, WHICH ARE CONSIDERED EXTENSION REQUESTS. THE MAJORITY OF THESE MOTIONS WERE BY COUNSEL, AND FREQUENTLY WERE MADE IN DIRECT CRIMINAL APPEALS WHICH HAVE THE LONGEST AVERAGE PROCESSING TIME FROM FILING THE NOTICE OF APPEAL TO FILING THE LAST BRIEF. TO ASSURE THAT THIS COURT DECIDES CASES MORE EXPEDITIOUSLY, THE COURT’S GOALS ARE TO: 1) REDUCE THE NUMBER OF MOTIONS TO EXTEND TIME TO FILE BRIEFS; AND 2) TO SHORTEN THE AMOUNT OF TIME GRANTED. IN GENERAL AND ABSENT THE MOST COMPELLING OF REASONS, NO MORE THAN 30 DAYS EXTENSION OF TIME WILL BE GRANTED IN CRIMINAL CASES AND NO MORE THAN 40 DAYS EXTENSION OF TIME WILL BE GRANTED IN CIVIL CASES.