“Are you serious, judge? With all due respect, I don’t know what to say,” Bank said.

When the lawyer later tried to claim his rebuttal, Judge Barrington D. Parker asked to have him removed, saying that he had “waived” his time.

None of the judges from last December’s panel were on hand to hear Bank’s appeal in the Alarm.com case.

That panel, which included Judges Gerard E. Lynch, Richard J. Sullivan and Michael H. Park, in a six-page order Wednesday said that Bank’s appeal ignored the merits of the lower court’s dismissal, and did not cite to any binding precedent that required U.S. District Judge William F. Kuntz II to enter a written ruling.

Bank, the panel said, had already amended his complaint once in the district court, and as a lawyer, was not entitled to any “special solicitude.”

“The district court was therefore permitted to exercise its discretion to deny Bank yet another bite at the apple,” the judges wrote.

In a statement, Bank said that the rule should not apply where the ruling on appeal “provides no reasoning and thus precludes the appellant from addressing those aspects of the ruling with which the appellant takes issue.”

“Perhaps it is not surprising that I did not find any authority, from either the Second Circuit nor any other circuit, stating that it is improper for an appellant’s brief to incorporate a lower-court brief where the ruling on appeal contains no explanation,” he said. “Even in its summary order, the court cites no such authority”

While the panel noted that the Federal Rules of Civil Procedure “expressly do not require” district court judges to provide reasoning when they decide Rule 12 dismissal motions, the judges did note their preference for some kind of written explanation. The refusal to do so, however, did not alter the outcome in Bank’s case.

“To be sure, the better practice, and the norm in this circuit, is for district courts to provide at least some explanation when dismissing a complaint—for the benefit of the parties and for the reviewing court on appeal—and we certainly hope that summary dismissals of this sort will continue to be the exception, not the rule, among judges,” the panel said. “Nevertheless, on the record before us, it cannot be said that the district court erred in its dismissal of Bank’s claims.”

Attorneys from Kirkland & Ellis, which represented Alarm.com, did not immediately comment on the ruling.


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