RAMIREZ_Appendix_Writ_Certiorari_2_6_2017

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Case: 15-11914 Date (133 Filed: of 12/04/2015 2011) Page: 10 of 13 I. APPENDIX NO. 57, P. 199 (P. 13) Appellant references page 9 of the transcript of Javier Callejas’s deposition. Although part of the Callejas deposition transcript is contained in the record below (Dkt. 88-2), that page is not in the record. J. APPENDIX NO. 69, P. 214-15 (P. 16) Appellant references document bates numbered “CR F. 26 p. 274-275” (Job Posting) in the appendix. This document is one of the documents produced by Appellant in response to “Defendant’s Request to Produce” and is not in the record or in the sealed documents filed with the district court. K. APPENDIX NO. 72, P. 218-19 (P. 17) Appellant references “DEF000462-463 Document responsive to Plaintiff First Request #17” in the appendix, and in the brief he states they were “Def’s sealed documents.” These are not in the record or in the Defendant’s sealed documents. L. APPENDIX NO. 73, P. 220 (P. 17) Appellant references “DEF349 Sealed Exhibits Document responsive to Plaintiff’s First Request #1” in the Appendix. This document is not the record below or in the Defendant’s sealed documents. It is clear based on the foregoing Eleventh Circuit authority, each document impermissibly included in the Appellant’s Brief and the Appendix fails to establish any adjudicative fact and should be stricken. Similarly, the interests of A. 783
Case: 15-11914 Date (134 Filed: of 12/04/2015 2011) Page: 11 of 13 justice will not be served by supplementing the record with materials Appellant could have presented to the district court, but failed to do so. None of these documents is related to subject matter jurisdiction. See Cabalceta, supra. Nor is it a situation where the district court had an incomplete picture of the material facts because of a party’s misrepresentation. See Dakota Indus., Inc. v. Dakota Sportswear, Inc. 988 F.2d 61, 63 (8th Cir. 1993). Rather, the Appellant in this case is seeking to introduce for the first time documents and information that are irrelevant and ancillary to the issues before this Court. Finally, granting the motion to strike is particularly appropriate in this case because the Appellant failed to request leave of this Court or appended material to his brief without first filing a motion to supplement. WHEREFORE, for the foregoing reasons, Appellee Bausch & Lomb respectfully requests this Court strike the above-listed evidence in the Appendix as well as references and arguments related to such evidence contained in the Appellant’s Brief, as such evidence was not properly before the district court. Respectfully submitted by, /s/ Lara J. Peppard Kevin Douglas Zwetsch, Esq. Florida Bar Number 0962260 kevin.zwetsch@ogletreedeakins.com Lara J. Peppard, Esq. Florida Bar Number 0520055 lara.peppard@ogletreedeakins.com Ogletree, Deakins, Nash, Smoak & Stewart, P.C. A. 884
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RAMIREZ_Appendix_Writ_Certiorari_2_6_2017

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