Thursday, October 27, 2005

Sixth Circuit Says Relegating Argument to a Footnote Waives the Argument on Appeal

The Sixth Circuit in U.S. v. Dairy Farmers of America, Inc., 426 F.3d 850 (6th Cir. Oct. 25, 2005) has held that an argument that is only presented in a footnote in the brief opposing a summary judgment motion is not preserved for appeal. This holding was notable because the court reached this conclusion with respect to an argument raised by the United States in its brief, preventing the government from arguing its point on appeal. Here's an excerpt:

We will briefly address the government's case against Southern Belle before turning to the heart of this dispute. The district court granted Southern Belle's motion for summary judgment on the ground that Section 7 of the Clayton Act is directed solely against the acquirer in a transaction, in this case, DFA. See 15 U.S.C. § 18 ("No person ... shall acquire ...") (emphasis added); Dailey v. Quality School Plan, Inc. 380 F.2d 484, 488 (5th Cir.1967) (" § 7 by its terms proscribes only the acquiring corporation").The government argued in the alternative that Southern Belle's presence in the case was required for complete relief. The district court rejected this contention because it found that DFA was also entitled to summary judgment on all claims. Although we disagree with this conclusion, for reasons that will be explained below, we will not consider the government's alternative argument with respect to Southern Belle because it was waived.

The only argument against the grant of summary judgment to Southern Belle in the government's brief is contained in a footnote on page thirty-seven, stating that the grant of summary judgment in favor of Southern Belle must be reversed if this Court reverses the judgment in favor of DFA, because non-acquiring parties may be joined in a Section 7 case if they are necessary for relief. An argument contained only in a footnote does not preserve an issue for our review. Rather, an appellant's brief must include a statement of the issues presented for our review, and an argument with respect to each issue. FED. R. APP. P. 28(a); Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 F.3d 1054, 1058-1059 (6th Cir.1995) (an issue only "drop[ped]" in a footnote and not raised in the statement of issues or argument section of a brief is not properly raised before the Court); see also Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 462 (6th Cir.2003) (issue waived when mentioned only in the final sentence of a brief). Furthermore, the government's attempt to save the issue by inclusion in its reply brief is unavailing. See United States v. Perkins, 994 F.2d 1184, 1191 (6th Cir.1993). The government has not preserved, and we will not entertain, any argument with respect to the grant of summary judgment to Southern Belle.


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