Ninth Circuit Rules

Table of Contents

FRAP 31

SERVING AND FILING BRIEFS

(a) Time to Serve and File a Brief.

(b) Number of Copies. Twenty-five copies of each brief must be filed with the clerk and 2 copies must be served on counsel for each separately represented party. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number.

(c) Consequence of Failure to File. If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who fails to file a brief will not be heard at oral argument unless the court grants permission.

CIRCUIT RULE 31-1

NUMBER OF BRIEFS

In lieu of the 25 copies required by FRAP 31(b), an original and 15 copies of each brief shall be filed. If a suggestion for hearing or rehearing en banc is granted, each party shall file 20 additional copies of its briefs. The appellant shall also file 20 additional copies of the excerpts of record.

Any party proceeding in forma pauperis and not represented by counsel, shall file only an original and 7 copies of briefs.

CIRCUIT RULE 31-2

TIME FOR SERVICE AND FILING

31-2.1 Requirement of Timely Filing

(a) Parties shall observe the briefing schedule set forth in FRAP 31(a) unless a briefing schedule is established by an order of the Court of Appeals or district court. Specific due dates set by Court order are not subject to the additional 3-day allowance for service of previous papers by mail set forth in FRAP 26(c). The filing of the appellant's brief before the due date shall not advance the due date for the appellee's brief.

(b) In cases controlled by FRAP 31(a), the appellant is responsible for determining the date on which the certificate of record is filed with the Court of Appeals and for computing the due date for the opening brief.

(c) [abrogated 1/99]

31-2.2 Extensions of Time for Filing Briefs

(a) If good cause is shown, the clerk or a designated deputy may grant an oral request for a single extension of time of no more than 14 days to file an opening, answering or reply brief. Such extensions may be applied for and granted or denied by telephone. The grant or denial of the extension shall be entered on the court docket. Application for such an extension shall be conditioned upon prior notice to the opposing party. The grant of an extension of time under this rule will bar any further motion to extend the brief's due date unless such a motion, which must be in writing, demonstrates extraordinary and compelling circumstances. The previous filing of a motion under Rule 31-2.2(b) precludes an application for an extension of time under this subsection.

(b) In all other cases, an extension of time may be granted only upon written motion supported by a showing of diligence and substantial need.

The motion shall be filed at least seven (7) calendar before the expiration of the time prescribed for filing the brief, and shall be accompanied by a declaration stating:

(1) when the brief is due;

(2) when the brief was first due;

(3) the length of the requested extension;

(4) the reason an extension is necessary;

(5) movant's representation that movant has exercised diligence and that the brief will be filed within the time requested; and

(6) whether any other party separately represented objects to the request, or why the moving party has been unable to determine any such party's position.

A conclusory statement as to the press of business does not constitute a showing of diligence and substantial need. (rev. 1/96)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 31-2.2

If a party files a motion for a first extension of time to file a brief on or before the due date for the brief, and the court does not rule on the motion until shortly before the due date or after the due date for the brief, the court ordinarily will grant some additional time to file the brief even if the court does not grant the motion in full. Multiple motions for extension of time to file a brief are disfavored, however, and the court may decline to grant relief if a successive motion fails to demonstrate diligence and substantial need.

If the court does not act on a motion for extension of time to file a brief before the requested due date, the court nonetheless expects the moving party to file the brief within the time requested in the motion. The brief should be accompanied by a letter stating that a motion for an extension of time is pending.

31-2.3 Failure to File Briefs

If the appellant fails to file a brief within the time allowed by FRAP 31(a) or an extension thereof, the court may dismiss the appeal pursuant to FRAP 31(c). If appellee does not elect to file a brief, appellee shall notify the court by letter on or before the due date for the answering brief. Failure to file the brief timely or advise the court that no brief will be filed will subject counsel to sanctions. (rev. 7/93)

Cross Reference: Circuit Rule 42-1, Dismissal for Failure to Prosecute.