Following up on my post of May 15th, 2020, the Seventh Circuit has sanctioned Ellishbrooks for its pursuit of a frivolously doomed appeal. The sanctions order emphasizes the importance of respecting the rules and answering on time for litigants and their counsel.
In April, the court denied Ellishbrooks’s appeal of a nearly $500,000 default judgment won by Quincy Bioscience, LLC (“Quincy”). The court ruled that Ellishbrooks forfeited its argument on the merits when it failed to respond to the complaint alleging infringement of Quincy’s trademark for Prevagen(™). In its complaint, Quincy alleged that Ellishbrooks had no permission to use the trademark, and that Ellishbrooks knew or should have known that it was selling stolen products. Ellishbrooks did not show up to defend until Quincy moved for default judgment; inaction that rendered its arguments on the merits moot.
The court granted the motion for sanctions filed by appellee Quincy in view of the conduct of Ellishbrooks during the appeal and because the appeal itself had virtually no likelihood of success and was pursued half-heartedly, at best.
Among the several litigation deficiencies cited by the Seventh Circuit were multiple show cause orders to compel Ellishbrooks’s compliance with court rules, failure to timely file its brief, incomplete briefs once filed, failure to submit a reply brief, and an attempt to delay oral argument. The court also considered Ellishbrooks’s bad faith in appearing to draw out proceedings as long as possible with full knowledge that it lacked a viable defense. As a consequence of Ellishbrooks’s litigation misconduct, both on appeal and before the district court, the Court awarded Quincy its costs and fees. The court took note that Quincy was subject to considerable expense in defending the appeal.
Courts understand that litigants are entitled to their day in court and that counsel should be given broad latitude to advocate on behalf of their clients. However, where a party or its counsel appear to be dragging out litigation with the intention of increasing expense rather than to legitimately assert its position, courts may punish that party or its counsel.
Here, Ellishbrooks submitted an appeal brief with only a scant few pages of argument and those arguments were considered by the Court to be frivolous. Failing to provide a robust argument on behalf of your client is a sure-fire way to lose credibility with the court and signal that you are wasting the court’s time.
Moreover, the appeal may have been hopeless from the start. Ellishbrooks’s appeal relied on arguments that were waived when not raised in the district court. Sometimes the best advice appellate counsel can provide to the client is that an appeal stands no chance of success and should not be pursued.
Latest posts by Jerome Crabtree (see all)
- Party Sanctioned for Pursuing Frivolous Appeal - June 26, 2020
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