Rhone-poulenc Agrochimie, Plaintiff-appellee, v. Agri-services, Incorporated D/b/a Agri-systems, Incorporatedand Fred Lozo, Defendants-appellants, 91 F.3d 167 (Fed. Cir. 1996)

ORDER

Agri-Services, Incorporated d/b/a Agri-Systems, Incorporated and Fred Lozo (collectively ASI) move for reconsideration of the court's March 13, 1996 order dismissing their appeal for failure to file a brief. Rhone-Poulenc Agrochimie opposes. ASI moves for leave to file a reply, with reply attached. Rhone-Poulenc has not responded.

ASI's appeal was transferred to this court from the United States Court of Appeals for the Eleventh Circuit on December 12, 1995. On December 28, 1995, this court docketed the appeal and sent a notice of docketing to the parties that outlined the critical dates for, inter alia, the entry of appearance, the certificate of interest, and the briefing schedule. Accordingly, ASI's brief was due on February 26, 1996. See Fed. Cir. R. 31(a). ASI did not file a brief, and its appeal was dismissed on March 13, 1996.

Counsel for ASI states that he was unfamiliar with the Federal Circuit Rule that provides that an opening brief is due within 60 days after the date on which the appeal is docketed. Counsel states that he was awaiting receipt of a document similar to the Eleventh Circuit's "Certificate of Readiness of Record on Appeal." Counsel also states that a sudden family medical emergency affected his ability to pursue this matter diligently. Counsel now requests that this court consider sanctioning him for his conduct, but not to penalize ASI.

In this court, failure of the appellant to timely file a brief almost always results in dismissal. Because this case presents a close question, and because counsel fully accepts responsibility for ASI's failure to file a brief, we reinstate ASI's appeal. Further, we conclude that counsel's proposal that he be admonished rather than his client is appropriate. Thus, counsel should pay $500 to Rhone-Poulenc.

Accordingly,

IT IS ORDERED THAT:

(1) ASI's motion for reconsideration is granted. The court's March 13, 1996 dismissal order is vacated, the mandate is recalled, and the appeal is reinstated.

(2) ASI's motion for leave to file a reply is granted.

(3) Counsel for ASI should pay Rhone-Poulenc $500 within 30 days.

(4) ASI's brief is due within 21 days from the date of filing of this order. No further extensions will be granted.