RAMIREZ_PetitionFOR A WRIT OF CERTIORARI_2_6_2017
7 days of the entry of the order of dismissal, a motion to set aside the dismissal and to remedy the default on account of extraordinary circumstances, accompanied by the required appendix: An appeal dismissed pursuant to this rule may be reinstated only upon the timely filing of a motion to set aside the dismissal and remedy the default showing extraordinary circumstances, accompanied by the required brief and appendix. Such a motion showing extraordinary circumstances, accompanied by the required brief and appendix, must be filed within 14 days of the date the clerk enters the order dismissing the appeal. The timely filing of such a motion, accompanied by the required brief and appendix, and a showing of extraordinary circumstances, is the exclusive method of seeking to set aside a dismissal entered pursuant to this rule. An untimely filed motion to set aside dismissal and remedy default must be denied unless the motion demonstrates extraordinary circumstances justifying the delay in filing the motion, and no further filings shall be accepted by the clerk in that dismissed appeal. 11th Cir. R. 42-2(e). Here, the Eleventh Circuit had extended the time for Ramirez to file a corrected appendix to April 11, 2016. A. 51. Appendices are deemed timely filed when mailed to the clerk on or before the last day for filing, see Fed. R. App. P. 25(a)(2)(B)(i), so Ramirez had until April 11 to mail the corrected appendix. Because of the FedEx Kinkos printing error, Ramirez did not mail the corrected appendix by April 11, so the appeal was treated as dismissed on April 12 (the next business day). To cure the dismissal, Ramirez had to file a motion to set aside the dismissal and remedy the default showing extraordinary circumstances, accompanied by the required corrected appendix, within fourteen days of the entry of the order of dismissal. 11th Cir. R. 42-2(e). Ramirez did file a motion and the corrected
8 appendix, but the clerk simply did not place them on the docket. A. 36–42, 44, 52, 92–95. Ramirez filed the documents by mail. “Filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the clerk receives the papers within the time fixed for filing.” Fed. R. App. P. 25(a)(2)(A). On April 12—the same day the appeal was treated as dismissed—Ramirez promptly mailed the corrected appendix with an unopposed motion. Ramirez’s motion was signed, bore a proper certificate of service, and included the required certificate of interested persons and corporate disclosure statement. A. 36–42. In it, Ramirez explained his extraordinary circumstances; requested that the Eleventh Circuit accept his corrected appendix as timely; and further requested that the Eleventh Circuit not dismiss his appeal. Id. He explained and argued that: • the FedEx Kinkos employee printed the corrected appendix improperly; • that third-party error constituted extraordinary circumstances; • despite that third-party error, he timely filed his corrected brief with the printing receipt and a short, immediate explanation of why the corrected appendix was not sent as well; • he left voicemail messages for both the clerk and opposing counsel on April 11 to describe the unforeseen situation; • he called both the clerk and opposing counsel on April 12; • opposing counsel did not oppose the filing of the corrected appendix one day late; and • he “worked very hard putting together [his] initial brief, even through hardship life circumstances in order to seek justice before this Court; therefore, there has been no lack of prosecution on [his] part.”
- 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 and 10: 2 JURISDICTION The Eleventh Circuit
- Page 11 and 12: 4 Bausch & Lomb’s brief on its ow
- Page 13: 6 ARGUMENT This Court should grant
- 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
8<br />
appendix, but the clerk simply did not place them on the docket. A. 36–42, 44, 52,<br />
92–95.<br />
Ramirez filed the documents by mail. “Filing may be accomplished by mail<br />
addressed to the clerk, but filing is not timely unless the clerk receives the papers<br />
within the time fixed for filing.” Fed. R. App. P. 25(a)(2)(A). On April 12—the same<br />
day the appeal was treated as dismissed—Ramirez promptly mailed the corrected<br />
appendix with an unopposed motion.<br />
Ramirez’s motion was signed, bore a proper certificate of service, and included<br />
the required certificate of interested persons and corporate disclosure statement. A.<br />
36–42. In it, Ramirez explained his extraordinary circumstances; requested that the<br />
Eleventh Circuit accept his corrected appendix as timely; and further requested that<br />
the Eleventh Circuit not dismiss his appeal. Id. He explained and argued that:<br />
• the FedEx Kinkos employee printed the corrected appendix improperly;<br />
• that third-party error constituted extraordinary circumstances;<br />
• despite that third-party error, he timely filed his corrected brief with the<br />
printing receipt and a short, immediate explanation of why the corrected appendix<br />
was not sent as well;<br />
• he left voicemail messages for both the clerk and opposing counsel on April 11<br />
to describe the unforeseen situation;<br />
• he called both the clerk and opposing counsel on April 12;<br />
• opposing counsel did not oppose the filing of the corrected appendix one day<br />
late; and<br />
• he “worked very hard putting together [his] initial brief, even through hardship<br />
life circumstances in order to seek justice before this Court; therefore, there has<br />
been no lack of prosecution on [his] part.”
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