RAMIREZ_PetitionFOR A WRIT OF CERTIORARI_2_6_2017
15 • Federal Rule of Appellate Procedure 45(b)(1) (“The clerk must maintain a docket … [and] record all papers filed with the clerk and all process, orders, and judgments.”); • Federal Rule of Appellate Procedure 45(d) (“Unless the court orders or instructs otherwise, the clerk must not permit an original record or paper to be taken from the clerk’s office”); and, of course, • Local Rule 42-2(e) itself, which provides for the filing of the motion that Ramirez submitted. Second, the clerk may have believed that the unopposed motion had not been submitted in the form that Eleventh Circuit Local Rule 42-2 requires. True, that rule requires the filing of a motion to set aside the dismissal and remedy the default, accompanied by the corrected appendix. 11th Cir. R. 42-2(e). But Ramirez’s motion substantially complied. Pro se papers are construed liberally, e.g., Timson, 518 F.3d at 874; as are the rules of procedure, e.g., Torres, 487 U.S. at 316; and while Ramirez did not ask, verbatim, to “set aside the dismissal” or “remedy the default,” he did ask the Eleventh Circuit to “[f]ind … the circumstances … , in their totality, to be … ‘extraordinary,’ unfortunate[,] and not close [his] appeal.” A. 40. Together with his explanation of extraordinary circumstances and accompanying corrected appendix, his request for relief is sufficient for pro-se purposes. If the clerk refused to file Ramirez’s unopposed motion under the authority of Local Rule 42-2, that local rule would conflict with Federal Rule of Appellate Procedure 25(a)(4), which provides that “[t]he clerk must not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rule or practice.” And it would likewise violate Federal Rule of Appellate Procedure 47(a)(2), which provides that “[a] local rule imposing a requirement of form must not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply
16 with the requirement.” The 1995 Committee Note indicates that this paragraph “is narrowly drawn,” applying only to “mere matters of form,” but does not provide any examples of matters of form to elucidate the matter. The 1995 Committee Note to Rule 47(a) says in part: Paragraph (2) is new. Its aim is to protect against loss of rights in the enforcement of local rules relating to matters of form. The proscription of paragraph (2) is narrowly drawn—covering only violations that are not willful and only those involving local rules directed to matters of form. It does not limit the court's power to impose substantive penalties upon a party if it or its attorney stubbornly or repeatedly violates a local rule, even one involving merely a matter of form. Nor does it affect the court's power to enforce local rules that involve more than mere matters of form. As should be obvious, Ramirez did not willfully fail to comply with Local Rule 42-2(c)’s requirements, nor did he “stubbornly or repeatedly violate a local rule” in a way that would merit the extreme sanction of dismissal. Third, the clerk may have believed that the motion was untimely filed under Local Rule 42-2, in the sense that it had arrived after the appeal had been treated as dismissed but before the entry of the order recognizing the dismissal, and hence not “filed within 14 days of the date the clerk enters the order dismissing the appeal.” 11th Cir. R. 42-2(e). But if the appeal were treated as dismissed on April 12 without the entry of any order, Ramirez’s motion was still timely filed. To prohibit him from seeking to cure the default by mailing his motion the very next day would ineluctably lead to the absurd result that appeals dismissed because of an untimely appendix could not be cured if the appellant waits too long to file the Local Rule 42-2(e) motion, and likewise they could not be cured if the appellant acts too promptly by seeking relief as soon as the technical mistake is detected.
- 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 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: 14 Scotia v. United States, 487 U.S
- Page 25: 18 CONCLUSION Although this Court e
15<br />
• Federal Rule of Appellate Procedure 45(b)(1) (“The clerk must maintain a<br />
docket … [and] record all papers filed with the clerk and all process, orders, and<br />
judgments.”);<br />
• Federal Rule of Appellate Procedure 45(d) (“Unless the court orders or<br />
instructs otherwise, the clerk must not permit an original record or paper to be<br />
taken from the clerk’s office”); and, of course,<br />
• Local Rule 42-2(e) itself, which provides for the filing of the motion that<br />
Ramirez submitted.<br />
Second, the clerk may have believed that the unopposed motion had not been<br />
submitted in the form that Eleventh Circuit Local Rule 42-2 requires. True, that<br />
rule requires the filing of a motion to set aside the dismissal and remedy the<br />
default, accompanied by the corrected appendix. 11th Cir. R. 42-2(e). But Ramirez’s<br />
motion substantially complied. Pro se papers are construed liberally, e.g., Timson,<br />
518 F.3d at 874; as are the rules of procedure, e.g., Torres, 487 U.S. at 316; and<br />
while Ramirez did not ask, verbatim, to “set aside the dismissal” or “remedy the<br />
default,” he did ask the Eleventh Circuit to “[f]ind … the circumstances … , in their<br />
totality, to be … ‘extraordinary,’ unfortunate[,] and not close [his] appeal.” A. 40.<br />
Together with his explanation of extraordinary circumstances and accompanying<br />
corrected appendix, his request for relief is sufficient for pro-se purposes.<br />
If the clerk refused to file Ramirez’s unopposed motion under the authority of<br />
Local Rule 42-2, that local rule would conflict with Federal Rule of Appellate<br />
Procedure 25(a)(4), which provides that “[t]he clerk must not refuse to accept for<br />
filing any paper presented for that purpose solely because it is not presented in<br />
proper form as required by these rules or by any local rule or practice.”<br />
And it would likewise violate Federal Rule of Appellate Procedure 47(a)(2), which<br />
provides that “[a] local rule imposing a requirement of form must not be enforced in<br />
a manner that causes a party to lose rights because of a nonwillful failure to comply
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