Motions to Strike or Dismiss and the Likelihood of Success

Motions to “Strike a Brief” are rarely filed, and ultimately, almost never granted in full. However, it is common for a motion to “Strike,” or to “Dismiss an Appeal” to be granted in part.

Typically, these motions would only be considered when too many documents were omitted from the Record on Appeal (the “Record”), or if the Record included documents outside the scope of the issues argued in the brief. Under such circumstances, the Court would most likely grant the motion in part, ordering the party originally responsible for the Record to correct/amend the portions of the Record (and/or brief) in question, but denying the dismissal portion of the motion. Essentially, the Court is not looking for a reason to dismiss an appeal outright on a technicality. The Court is much more likely to require the correction of the Record to ensure the facts of the case are properly before the Appellate Division.

Keep in mind, part of the responsibilities of the clerk’s office is to make sure the appellate panel members are receiving the exact same documents which were originally considered by the Judge in the Court of original instance. The Appellate Division exists to hear appeals and decide cases on the merits and will make every effort to do so in all cases, rather than dismissing an appeal on a technicality.