RAMIREZ_PetitionFOR A WRIT OF CERTIORARI_2_6_2017
3 28 U.S.C. § 1332 diversity jurisdiction. See A. 55. After removal, Ramirez amended his complaint to proceed exclusively under Florida’s Private Whistleblower Act. 3 See A. 55. The district court entered summary judgment in favor of Bausch & Lomb. Ramirez took a first appeal to the Eleventh Circuit. 4 A. 65. Although Ramirez had the benefit of pro bono counsel in the district court, he was pro se and in forma pauperis on appeal. See A. 66. Ramirez nonetheless prevailed in his first appeal and the Eleventh Circuit vacated and remanded for further proceedings. A. 17–25. After remand, the district court again entered summary judgment in favor of Bausch & Lomb. A. 4–16. Ramirez took a second appeal. A. 53–54. During the second appeal, Ramirez proceeded pro se and in forma pauperis. A. 48, 53. He was homeless; slept in shelters or on the street; and could only access computer equipment for research and drafting at the public library. E.g., A. 69–71, 97–99. He received mail through general delivery at the local post office (A. 3) but sometimes the documents that the court sent to him were not properly delivered (see, e.g., A. 51, 68). Although done through unsworn statements, Ramirez made the lower court aware of his situation from the very beginning of the appeal. E.g., A. 69– 70. In September 2015, Ramirez timely filed a brief and appendix. A. 49. Bausch & Lomb filed a brief in response. A. 50. With its brief, Bausch & Lomb contemporaneously filed a motion to strike portions of Ramirez’s brief and appendix because they included material outside the record. A. 50. Although the motion only requested that the improper portions be stricken (A. 80), the lower court struck Ramirez’s brief and appendix in their entirety. A. 26–27. The lower court also struck 3 4 Fla. Stat. § 448.101 et seq. № 12-14669-E.
4 Bausch & Lomb’s brief on its own motion. Id. After two extensions of time, Ramirez’s corrected brief and corrected appendix were due on April 11, 2016. A. 53. Ramirez timely prepared his corrected brief and corrected appendix. See A. 36– 39, 92–95. On April 11 he went to Fed Ex Kinkos to print those documents. A. 38– 40, 89–95, 96–99. The corrected brief printed successfully (A. 38–40, 89–95, 97–99) and was timely filed (A. 51) and later corrected again (A. 51). But the Fed Ex Kinkos employee printed the corrected appendix out of order and with pages missing. See A. 38–40, 89–95, 97–99. Because of the employee’s mistake, the corrected appendix could not be filed until the next day. See A. 38–40, 89–95, 96–99. Ramirez contacted opposing counsel about the issue, and opposing counsel graciously agreed not to oppose Ramirez’s request to consider the corrected appendix timely filed. A. 39, 94. On April 12, Ramirez mailed the corrected appendix with an accompanying “unopposed motion of extraordinary circumstances.” A. 34–40, 44 (date-stamped corrected appendix), 52. In the motion, he explained the situation and asked the lower court to accept the corrected appendix as timely and to not dismiss the appeal. The clerk received both the unopposed motion and the corrected appendix on April 15. A. 35, 36–40, 44 (date-stamped corrected appendix). But the clerk did not file either document. A. 51–52. On April 20, the clerk entered a clerk’s order of dismissal: ENTRY OF DISMISSAL: Pursuant to the 11th Cir.R. 42-2(c), this appeal is DISMISSED for want of prosecution because the appellant Carlos Ramirez failed to file CORRECTED appendix within the time fixed by the rules, effective April 20, 2016. A. 1. But the accompanying letter stated that pursuant to 11th Cir. R. 42-2(c) and 42-3(c), when an appellant fails to timely file or correct a brief or appendix, the appeal shall be treated as
- Page 1 and 2: № ____________________ IN THE SUP
- Page 3 and 4: ( ii) CONTENTS PETITION CONTENTS Qu
- Page 5 and 6: ( iv) Clerk Correspondence re Entry
- Page 7 and 8: ( vi) ELEVENTH CIRCUIT LOCAL RULES
- Page 9: 2 JURISDICTION The Eleventh Circuit
- Page 13 and 14: 6 ARGUMENT This Court should grant
- Page 15 and 16: 8 appendix, but the clerk simply di
- Page 17 and 18: 10 to be entered of record.”). Li
- Page 19 and 20: 12 Administration, No. 15-15549, th
- Page 21 and 22: 14 Scotia v. United States, 487 U.S
- Page 23 and 24: 16 with the requirement.” The 199
- Page 25: 18 CONCLUSION Although this Court e
4<br />
Bausch & Lomb’s brief on its own motion. Id. After two extensions of time,<br />
Ramirez’s corrected brief and corrected appendix were due on April 11, 2016. A. 53.<br />
Ramirez timely prepared his corrected brief and corrected appendix. See A. 36–<br />
39, 92–95. On April 11 he went to Fed Ex Kinkos to print those documents. A. 38–<br />
40, 89–95, 96–99. The corrected brief printed successfully (A. 38–40, 89–95, 97–99)<br />
and was timely filed (A. 51) and later corrected again (A. 51). But the Fed Ex Kinkos<br />
employee printed the corrected appendix out of order and with pages missing. See<br />
A. 38–40, 89–95, 97–99.<br />
Because of the employee’s mistake, the corrected appendix could not be filed<br />
until the next day. See A. 38–40, 89–95, 96–99. Ramirez contacted opposing counsel<br />
about the issue, and opposing counsel graciously agreed not to oppose Ramirez’s<br />
request to consider the corrected appendix timely filed. A. 39, 94.<br />
On April 12, Ramirez mailed the corrected appendix with an accompanying<br />
“unopposed motion of extraordinary circumstances.” A. 34–40, 44 (date-stamped<br />
corrected appendix), 52. In the motion, he explained the situation and asked the<br />
lower court to accept the corrected appendix as timely and to not dismiss the appeal.<br />
The clerk received both the unopposed motion and the corrected<br />
appendix on April 15. A. 35, 36–40, 44 (date-stamped corrected appendix). But<br />
the clerk did not file either document. A. 51–52.<br />
On April 20, the clerk entered a clerk’s order of dismissal:<br />
ENTRY <strong>OF</strong> DISMISSAL: Pursuant to the 11th Cir.R. 42-2(c), this<br />
appeal is DISMISSED for want of prosecution because the appellant<br />
Carlos Ramirez failed to file CORRECTED appendix within the time<br />
fixed by the rules, effective April 20, 2016.<br />
A. 1. But the accompanying letter stated that<br />
pursuant to 11th Cir. R. 42-2(c) and 42-3(c), when an appellant fails to<br />
timely file or correct a brief or appendix, the appeal shall be treated as
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