Ninth Circuit Applies “Slubby Mass” Rule to Dismiss Appeal

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On November 29, the Ninth Circuit again applied the Slubby Mass Rule to reject an appellant’s brief and dismiss the appeal.  In case you did not learn this one in law school, this rule provides that any pleading presented to an appellate court that constitutes "a slubby mass of words rather than a true brief" will be rejected.  See, e.g., N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997).  The Slubby Mass Rule is apparently a corollary to Federal Rule of Appellate Procedure 28, which governs briefing requirements, and the corresponding Ninth Circuit rules.

The court was considering the appellant’s brief in Sekiya v. Gates, a disability-discrimination case originally filed in Hawaii.  And that seems to have been about all the court could glean about the case from Sekiya’s brief, which:

  • made "virtually no legal arguments" (not a good start);
  • did not state the applicable standard of review;
  • did not include a table of contents;
  • did not include a table of authorities — not that surprising since it
  • did not cite any authority;
  • did not include accurate citations to the record; and
  • didn’t explain why Sekiya thought she should win.  (She did say she "disagree[d]" with the lower court’s ruling, but the court was looking for something more.)

Each of those violates a specific part of FRAP 28, but the court also invoked the Slubby Mass Rule.  In the N/S Corp. case, in which the Rule was developed, the Ninth Circuit declared that "[i]n order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief."  N/S Corp., 127 F.3d at 1146 ("the violations are legion); see also id. ("Enough is enough").  The rule was next applied five years later.  See In re O’Brien, 312 F.3d 1135, 1136-37 (9th Cir. 2002) (declaring brief "inadequate" and partly "unintelligible").  In all three cases the court proceeded to address the merits of the case, to the extent it could tell what they were, but ruled against the appellant anyway.  It published its opinions "as a reminder that [crappy legal work] undermine[s] the administration of justice and cannot be tolerated."

The remaining question you may have is "what the hell does ‘slubby’ mean?"  And you are right to ask.  The only other report I’ve seen try to answer this question first speculated that "slubby" was a combination of "sloppy" and "stubby," but found through further research that a "slub" is a "lump or thick place in yarn or thread."  The only problem with these definitions is that they make no sense.  Since you read Lowering the Bar, you don’t need to bother with that pointless trivia because here you get accurate pointless trivia.  A "slub" is also defined as "thick sludgy mud; mire, ooze," as in:

1610 W. FOLKINGHAM Art of Survey I. x. 24 Ouer-flowing them with Fords or Land-flouds, affording a fatte and slimie substance or slubbe.

Similarly, something that is "slubby" is "muddy; sticky or slippery with mud."  So, a "slubby mass of words" is a thick, muddy, sludgy, fatte, slimie mass of words that is difficult to trudge through and instead should be avoided; for if one is on the "slub . . . his situation is not to be envied."

Link: "Slub, n.," Oxford English Dictionary Online
Link: Sekiya v. Gates, 2007 WL 4198172 (9th Cir. Nov. 29, 2007).