If you have ever drafted a Complaint, you have undoubtedly used the words that your previous numbered allegations were "incorporated by reference." It’s a way of not having to repeat yourself. That shortcut is specifically allowed by Rule 10(c) of the North Carolina Rules of Civil Procedure, which says that: "Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion in the action."
If you have a case where you have filed multiple briefs, you might "incorporate by reference" arguments you made in an earlier brief. You probably haven’t thought twice about that.
Well, Judge McGuire of the NC Business Court has thought about it, and he doesn’t like it. In American Air Filter Co. v. Price, 2017 NCBC 54, he ruled that the use of incorporation by reference of earlier briefs could be a violation of the Rules of the NC Business Court and that it could result in the Court refusing to consider the referenced argument.
How could that be, you are wondering, as there is no mention (or any prohibition) of this practice in the Court’s rules. The reason is that the inclusion of the pages of a previously filed brief might push you over the page limitations contained in the Business Court Rules for briefs. The Rules require the lawyer for a party filing a brief to limit her words to 7,500, and to "include a certificate by the attorney or party that the brief complies with this rule." BCR 7.8.
Judge McGuire said in the American Filter case that:
The General Rules of Practice and Procedure for the North Carolina Business Court (“BCR”) do not expressly permit parties to incorporate previously-filed briefs and documents outside of the brief at issue, at least not to supplement the substantive text of the brief at issue. In fact, BCR 7.8 provides strict word limits on briefs submitted to this Court. Even if incorporation of previous briefs were allowable, it appears a party incorporating a previously-filed brief would have to certify under BCR 7.8 that the brief and the incorporated brief did not exceed the word limits. Defendants have not done so in this case. As a result, the Court declines to consider Defendants’ arguments and authorities regarding choice of law issues contained in other filings with the Court.
Op. at n.2.
If you think that Judge McGuire was being unreasonably harsh in excluding the arguments made in the incorporated by reference material, you are wrong. Multiple courts have taken the same position. See, e.g., Northland Ins. Co. v. Stewart Title Guaranty Co., 327 F.3d 448, 44, 452-53 (6th Cir. 2003); DeSilva v. DiLeonardi, 181 F.3d 865, 866-67 (7th Cir.1999) Swanson v. United States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996) ; Cray Communications, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 396 n. 6 (4th Cir.1994); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Some court Rules specifically prohibit this practice: for example, Eighth Circuit Rule 28A(i)("A party may not incorporate by reference the contents of a brief filed elsewhere.")
The DeSilva decision cited above was highly critical of this practice. It said that "adoption by reference amounts to a self-help increase in the length of the appellate brief. Even when a litigant has unused space …, incorporation is a pointless imposition on the court’s time. A brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record."
Now, those of you who are not recovering from an overdose of hot dogs from your Fourth of July celebration yesterday will undoubtedly note that those are all appellate decisions and appellate rules and that it makes sense not to require an appellate Judge to have to go looking for something that was filed in another court and is not readily available in the brief before him. A trial court Judge, on the other hand, has the whole history of the case before him, and that’s especially so for a Business Court Judge — something from a previous filing that is incorporated by reference is only a click away.
You might be wondering if footnote 2 is the only thing worth knowing about in the 29 page American Filter decision. Well, I’ve written about the case once before. This time, most of the decision was about whether Kentucky law or North Carolina law should apply to Plaintiff’s claims. Footnote 2 stole the show.
You are now on notice. Don’t file a brief in the Business Court incorporating pages from another brief that you filed earlier in the same case.
I would not have caught this very important point about briefing procedure in the NC Business Court if it were not for my partner Eric David bringing it to my attention. Thank you Eric.