RAMIREZ_Appendix_Writ_Certiorari_2_6_2017

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Case: 15-11914 Date (127 Filed: of 2011) 12/04/2015 Page: 4 of 13 CARLOS RAMIREZ, Plaintiff/Appellant, UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT vs. BAUSCH & LOMB, INC. Appeal No. 15-11914-E Defendant/Appellee. / APPELLEE BAUSCH & LOMB, INC.’S MOTION TO STRIKE PORTIONS OF APPELLANT’S APPENDIX AND BRIEF Appellee, Bausch & Lomb, Inc. (“Bausch & Lomb”), by and through its undersigned counsel, moves to strike those portions of Appellant Carlos Ramirez’s (“Ramirez” or “Appellant”) Appendix which are not contained in the record on appeal, as well as the corresponding portions of the brief which rely on these documents: 1. On April 30, 2015, Ramirez appealed the decision by the United States District Court for the Middle District of Florida (“district court”) which granted Appellee’s Motion for Summary Judgment, dismissing all issues in the case. (Dkt. 189). 2. Appellant filed a brief in support of his appeal to this Court on September 14, 2015. A. 177
Case: 15-11914 Date (128 Filed: of 2011) 12/04/2015 Page: 5 of 13 3. On September 25, 2015, Appellant filed an Appendix with this Court, which is required by FRAP Rule 30(a)(1) and Eleventh Circuit Rule 30-1. Per these Rules, the appendix must set forth: “the relevant docket entries in the proceeding below; the relevant portions of the pleadings, charge, findings, or opinion; the judgment, order, or decision in question; and other parts of the record to which the parties wish to direct the court’s attention.” 4. Evidence not before the district court was impermissibly included in the Appendix and referenced in the Appellant’s Brief (see infra, pgs. 7 – 9 for a discussion of the impermissible specific appendix and brief references). 5. Consequently, Appellee requests this Court strike the abovereferenced portions of the Appendix and Brief which were not before the district court. 6. On December 2, 2015, Bausch & Lomb’s undersigned counsel contacted Mr. Ramirez by telephone and e-mail, and on December 3, 2015, Mr. Ramirez informed Mr. Zwetsch that he does not consent to the relief sought and opposes this motion. MEMORANDUM IN SUPPORT OF APPELLEE’S MOTION TO STRIKE It is axiomatic that appellate review is limited to consideration of the factual record as established in the lower court. See Munoz v. Int'l Alliance of Theatrical Stage Employees, 563 F.2d 205, 209 (5th Cir. 1977) (“[m]aterials not presented to A. 278
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RAMIREZ_Appendix_Writ_Certiorari_2_6_2017

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