RAMIREZ_PetitionFOR A WRIT OF CERTIORARI_2_6_2017
17 The Eleventh Circuit itself has recognized that it lacks authority to amend the Federal Rules of Appellate Procedure. Cordell v. Pac. Indem. Co., 335 Fed. App’x 956, 960 n.7 (11th Cir. 2009). Any way it is viewed, the clerk’s returning Ramirez’s unopposed motion as unfiled is erroneous. If, under any of the possible rationales above, Local Rule 42-2 indeed permitted the clerk to return unfiled Ramirez’s prompt, timely, and unopposed motion, then Local Rule 42-2 would be an unreasonable exercise of the Eleventh Circuit’s supervisory and rulemaking authority; and consequently that error would merit this Court’s certiorari correction. ⁂
18 CONCLUSION Although this Court exercises its supervisory power sparingly, this case is worthy of its swift correction. Ramirez did not willfully violate the deadline to file the corrected appendix. It was only one day late, on account of a third-party vendor’s mistake, and it was Ramirez’s first timeliness infraction in that appeal. The Eleventh Circuit’s clerk should have filed Ramirez’s pro se, unopposed motion and submitted it to the Eleventh Circuit for consideration. The clerk’s failure to do so deprived Ramirez of the opportunity to be heard and violated both the Federal Rules of Appellate Procedure and the Eleventh Circuit’s own local rules. Because the equities weigh so heavily in Ramirez’s favor, and because Bausch & Lomb did not oppose treating the corrected appendix as timely filed, the Eleventh Circuit, on remand, should grant the relief that Ramirez requested. WHEREFORE this Honorable Court should GRANT this petition, VACATE the Eleventh Circuit’s order of dismissal, and REMAND this matter for that court to consider Ramirez’s unopposed motion. Most respectfully submitted, /s/ Andrew Paul Kawel Counsel of Record for Mr. Ramirez Kawel PLLC 80 SW 8th St. Ste. 3330 Miami, Florida 33130-3004 apkawel@kawellaw.com (305) 209-4529
- 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 and 22: 14 Scotia v. United States, 487 U.S
- Page 23: 16 with the requirement.” The 199
18<br />
CONCLUSION<br />
Although this Court exercises its supervisory power sparingly, this case is worthy of<br />
its swift correction.<br />
Ramirez did not willfully violate the deadline to file the corrected appendix. It<br />
was only one day late, on account of a third-party vendor’s mistake, and it was<br />
Ramirez’s first timeliness infraction in that appeal. The Eleventh Circuit’s clerk<br />
should have filed Ramirez’s pro se, unopposed motion and submitted it to the<br />
Eleventh Circuit for consideration. The clerk’s failure to do so deprived Ramirez of<br />
the opportunity to be heard and violated both the Federal Rules of Appellate<br />
Procedure and the Eleventh Circuit’s own local rules.<br />
Because the equities weigh so heavily in Ramirez’s favor, and because Bausch &<br />
Lomb did not oppose treating the corrected appendix as timely filed, the Eleventh<br />
Circuit, on remand, should grant the relief that Ramirez requested.<br />
WHEREFORE this Honorable Court should GRANT this petition, VACATE the<br />
Eleventh Circuit’s order of dismissal, and REMAND this matter for that court to<br />
consider Ramirez’s unopposed motion.<br />
Most respectfully submitted,<br />
/s/ Andrew Paul Kawel<br />
Counsel of Record for Mr. Ramirez<br />
Kawel PLLC<br />
80 SW 8th St. Ste. 3330<br />
Miami, Florida 33130-3004<br />
apkawel@kawellaw.com<br />
(305) 209-4529
Change language