Bausch and Lomb_Opposition_2_RamirezWritofCert_2017-03-14
with the Federal Rules of Appellate Procedure — specifically, those discussed in Section A, above,9 as well as Rule 47(a)(2). (Petition, pp. 13-16). Rule 47(a)(2) states 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 with the requirement." F.R.A.P. 47(a)(2). And as Petitioner concedes, the Rule does not "affect the court's power to enforce local rules that involve more than mere matters of form." (Petition, p. 16, citing 1995 Committee Note to Rule 47(a)). Here, Eleventh Circuit Rule 42-2 provides for dismissal of appeals in which the brief or appendix is not timely filed and sets a substantive standard of showing extraordinary circumstances in order to set aside a default and reinstate a dismissed appeal. 11th Cir. R. 42-2(c), (e). Such substantive standards do not appear to be "mere matters of form," and Petitioner cannot show that the Eleventh Circuit's Rule 42-2 conflicts with the Federal Rules of Appellate Procedure. C. Ramirez Failed to Show Any Extraordinary Circumstances. Ramirez failed to show any "extraordinary circumstances," as required by Eleventh Circuit Rule 42-2(e), either to justify the late filing of his appendix or the late filing of his June 2, 2016, motion to reinstate the appeal. An appeal dismissed pursuant to llth Cir. R. 42-2(c) "may be reinstated only upon the timely filing of a 9 As discussed above, there is no conflict between Eleventh Circuit Rule 42-2 and Federal Rules of Appellate Procedure 27(a)(1), 25(a)(1), or 45. 19
motion to set aside the dismissal and remedy the default showing extraordinary circumstances, accompanied by the required brief and appendix." See 11th Cir. R. 42-2(e). "Such a motion must be filed within 14 days of the date the clerk enters the order dismissing the appeal." Id. Here, the motion to reinstate the appeal would have been timely if the clerk received it by May 4, 2016. Further, an "untimely filed motion 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). Ramirez has never demonstrated any "extraordinary circumstances." Instead, according to both his April 12, 2016, and his June 2, 2016, motions, Ramirez waited until the last minute to prepare and attempt to file his initial brief and appendix (after receiving five extensions of time over the course of almost a year), experienced a technical difficulty, failed to determine when the post office closed, and did not timely submit his appendix. (A.38-40, 89-95). The additional reasons Ramirez mentions in his June 2, 2016, motion — "hardship life circumstances; unsteady housing circumstances, depression, anxiety, and, neck pain" — are substantially the same reasons Ramirez mentioned each of the five times he sought extensions of time in which to file his brief and appendix during his entire appeal. (e.g., A.70, Petitioner's Motion for Extension of February 11, 2016, R.A.13-20). 20
- Page 1 and 2: Ogletree Deakins Karen M. Morinelli
- Page 3 and 4: QUESTIONS PRESENTED I. D o Federal
- Page 5 and 6: QUESTIONS PRESENTEDi TABLE OF CONTE
- Page 7 and 8: Federal Rule of Appellate Procedure
- Page 9 and 10: JURISDICTION Ramirez's Petition for
- Page 11 and 12: STATUTORY PROVISIONS AND RULES INVO
- Page 13 and 14: After remand, the district court ag
- Page 15 and 16: and to "find that the circumstances
- Page 17 and 18: On November 21, 2016, Ramirez sough
- Page 19 and 20: filing by either party hence, the a
- Page 21 and 22: 2587, 542 U.S. 367, 381 (2004) (cit
- Page 23 and 24: F.3d 1337, 1341 n.2 (11th Cir. 2011
- Page 25: Simply calling a document a motion
- Page 29 and 30: (Petition, p. 11). Nevertheless, th
- Page 31 and 32: CONCLUSION AND RELIEF SOUGHT For al
- Page 33 and 34: NO. 16-7880 IN THE SUPREME COURT OF
- Page 35 and 36: Dated March 13, 2017. Respectfully
- Page 37 and 38: Case: 12-14679 Date Filed: 12/17/20
- Page 39 and 40: R.A. 4 Case: 12-14679 Date Filed: 0
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- Page 47 and 48: Case: 12-14679 Date Filed: 02/11/20
- Page 49 and 50: Case: 15-11914 Date Filed: 02/16/20
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with the Federal Rules of Appellate Procedure — specifically, those discussed in<br />
Section A, above,9 as well as Rule 47(a)(2). (Petition, pp. 13-16).<br />
Rule 47(a)(2) states that a "local rule imposing a requirement of form must<br />
not be enforced in a manner that causes a party to lose rights because of a<br />
nonwillful failure to comply with the requirement." F.R.A.P. 47(a)(2). And as<br />
Petitioner concedes, the Rule does not "affect the court's power to enforce local<br />
rules that involve more than mere matters of form." (Petition, p. 16, citing 1995<br />
Committee Note to Rule 47(a)). Here, Eleventh Circuit Rule 42-2 provides for<br />
dismissal of appeals in which the brief or appendix is not timely filed <strong>and</strong> sets a<br />
substantive st<strong>and</strong>ard of showing extraordinary circumstances in order to set aside a<br />
default <strong>and</strong> reinstate a dismissed appeal. 11th Cir. R. 42-2(c), (e). Such<br />
substantive st<strong>and</strong>ards do not appear to be "mere matters of form," <strong>and</strong> Petitioner<br />
cannot show that the Eleventh Circuit's Rule 42-2 conflicts with the Federal Rules<br />
of Appellate Procedure.<br />
C. Ramirez Failed to Show Any Extraordinary Circumstances.<br />
Ramirez failed to show any "extraordinary circumstances," as required by<br />
Eleventh Circuit Rule 42-2(e), either to justify the late filing of his appendix or the<br />
late filing of his June 2, 2016, motion to reinstate the appeal. An appeal dismissed<br />
pursuant to llth Cir. R. 42-2(c) "may be reinstated only upon the timely filing of a<br />
9 As discussed above, there is no conflict between Eleventh Circuit Rule 42-2 <strong>and</strong> Federal Rules<br />
of Appellate Procedure 27(a)(1), 25(a)(1), or 45.<br />
19
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