If You're Asking the Court for Something, Don't Just Put It in a Footnote

From yesterday's decision by Judge Aileen Cannon (S.D. Fla.) in Romspen Investment LP v. Dibert:

Plaintiff also objects to the Magistrate Judge's refusal to consider one of its sanctions requests (specifically, to resume Defendant's deposition under special conditions) because the request was presented in a footnote. Plaintiff characterizes this refusal as contrary to law, arguing that courts routinely consider unopposed arguments, even when raised in footnotes, and that Magistrate Judge Reinhart's reliance on Sony Music Ent. v. Vital Pharms., Inc. (S.D. Fla. 2022), was misplaced. This objection is overruled. While a court certainly can address a properly preserved argument made in a footnote, Plaintiff cites no Eleventh Circuit or Supreme Court precedent requiring consideration of such buried arguments. Magistrate Judge Reinhart did not clearly err in declining to consider that request, made in a footnote, in the context of Plaintiff's many other requests.

And here's a similar passage from Judge William Dimitrouleas's decision in Sony:

Plaintiffs also request summary judgment on over a dozen of Defendants' affirmative defenses in footnotes throughout their motion. As Defendants point out, addressing legal arguments in footnotes is an incorrect method to present substantive arguments on the merits or otherwise request relief from the Court. Connor v. Midland Credit Mgmt., Inc., No. 18-23023CIV, 2019 WL 717413, at *4, n. 1 (S.D. Fla. Feb. 20, 2019) (citing Mazzeo v. Nature's Bounty, Inc., No. 14-60580, 2014 WL 5846735, at *2 n.1 (S.D. Fla. Nov. 12, 2014) (not considering argument raised in a footnote); see also Mock v. Bell Helicopter Textron, Inc., 373 F. App'x 989, 992 (11th Cir. 2010) (deeming argument waived because it was raised only in a footnote)). Thus, the Court will not address Plaintiffs' request for summary judgment as to Defendants' affirmative defenses.

Comments

[Ridgeway]

This post is missing critical information! Before I can determine whether this decision is brilliant or idiotic, I need to know how it affects President Trump.

[santamonica811]

heh

[John F. Carr]

The First Circuit has standard language for this situation: "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."

[JimM47]

This is the correct answer.

If a litigant can raise an issue only in a footnote, then a court can address the issue with only a footnote (or text of the same length).

Some issues are so clear that they can be raised in a footnote and accepted in a footnote. But, for those that are not, expect that waiver is a possibility.

[orin ed deniro]

As Ruggie Aldisert, United States Circuit Judge of the United States Court of Appeals for the Third Circuit, wrote, "A man who puts anything in footnotes is a man who would answer the door on his wedding night."

[TextFirst]

Courts: The federal procedural rules aren't good enough, let's make our own and spread it out across standing orders, local rules, judge specific rules, accepted but unwritten practice, and occasionally just in an opinion somewhere.

Also courts: Read a footnote? Ain't nobody got time for that!

[Gregory]

It is extremely funny that both of Judge Dimitroulea's citations within S.D. Fla. for the assertion that a judge doesn't have to consider arguments made in footnotes are made IN FOOTNOTES

[John F. Carr]

I read about a blind judge who didn't want footnotes.

[KenveeB]

My rule of thumb is to never put anything in a footnote that NEEDS to be read. Footnotes are for tangents, side notes, or additional explanation that isn't strictly necessary but is interesting. You can read my brief without any footnotes and understand the entire thing.

[tkamenick]

Same judge later, or earlier maybe - "party X failed to respond to party Y's argument in a footnote, thus conceding that argument"

/sarc