The United States Court of Appeals for the Seventh Circuit held that an appeal was frivolous and entered an order to show cause by sanctions should not be imposed. In Boutros v. Avis Rent A Car System, LLC, 802 F.d. 918 (7th Cir. 2015) plaintiff brought an action against the defendant alleging he was fired because of his race and subjected him to a hostile work environment. In addition he claimed retaliation. The jury found for the employer on all claims. Plaintiff dismissed his attorney and his new counsel filed a boiler plate motion for a new trial which the district court denied. The district judge in denying the motion said that it “barely qualifies as a motion” and “was plainly a place holder” in a futile quest for an extension of time to file a proper motion for a new trial.
The Court of Appeals noted that the opening brief violated several appellate and circuit rules. The statement of facts lacked citation to the record and the appendix lacked a copy of the judgment, complete transcripts of the evidentiary rulings that were challenged on appeal and a transcript of the post-trial hearing at which the Rule 59 motion was denied. The employer moved to dismiss the appeal and while the court noted that the violations are multiple and conspicuous which clearly provided grounds for dismissal it preferred to decide the case on its merits. Disregarding the plaintiffs statement of facts it decided the appeal based solely on the defendants account and the relative transcripts. Plaintiff raised two claims of evidentiary error, one was a Rule 403 argument that the admission of out-of-court statements for non-hearsay purposes was unduly prejudicial under Rule 403. However, the court of appeals noted that plaintiff did not object to this evidence on Rule 403 grounds so the claim was unpreserved and it was frivolous.
Plaintiff also claimed that the trial judge prevented him from presenting evidence and claims he was entitled to present under Rule 106. The court of appeals pointed out that the judge did not limit the evidence but that plaintiff had stipulated to the facts of the prior suit. In addition, his Rule 106 argument did not apply and was frivolous. The court concluded:
“For all the foregoing reasons, this appeal is frivolous. Accordingly, we invoke Rule 38 and issue an order to show cause why sanctions should not imposed for filing a frivolous appeal.”