Argument Recap

Last week the Federal Circuit heard oral arguments during its September sitting in Washington DC. Here is a short recap of Keith Manufacturing Co. v. Butterfield, one of the argued cases we’re following. The case stands out for two reasons: the appellant did not file any reply brief, and the appellee did not make any oral argument.

As previewed on this blog, this case presents the issue of whether a “stipulated dismissal with prejudice functions as a ‘judgment’ under Fed. R. Civ. P. 54(a), allowing the defendant to move for an award of attorney’s fees.” This is an important question because whether attorneys’ fees may be sought after a stipulated dismissal with prejudice will no doubt impact parties’ decisions to enter into stipulated judgments to resolve disputes. Judges Taranto, Clevenger, and Hughes heard the oral argument.

Shawn Kolitch argued on behalf of the appellant, Butterfield. He emphasized that treating a stipulated dismissal as a final judgment is not inconsistent with the Supreme Court’s holding in Microsoft v. Baker, nor is it inconsistent with the “law on prevailing party determination.” Kolitch then focused the judges on two questions: “what is a judgment” and “whether a stipulated dismissal is a judgment.” In response to a question about Tenth Circuit precedent, Kolitch agreed that in the Tenth Circuit a judgment “includes a decree,” which covers all appealable orders. Kolitch explained that a stipulated dismissal should be included as a judgment because it “decides something” and has preclusive effects on the plaintiff.

Bruce Kaser, representing appellee Keith Manufacturing, did not make any oral argument, but rather chose to stand on the briefs. The judges appeared surprised, going so far as to ask Kaser if he would rely upon his briefs and not make any oral argument “even if you are going to lose on what you said in your briefs.” Kaser stood his ground, responding “[w]e will stand on what we have to say in our briefs.” As a result, the judges did not ask Kaser any questions.

Stay tuned to see which attorney’s silence—Kolitch’s lack of a reply brief or Kaser’s lack of oral argument—still allowed him to prevail.