Ramirez_reply2ResponseinOpposition2Petition_03-27-17

1
IN THE
SUPREME COURT OF THE UNITED STATES
________________________________________
CARLOS RAMIREZ — PETITIONER
VS.
BAUSCH AND LOMB, INC. — RESPONDENT
________________________________________
REPLY
________________________________________
Our friends on the other side mislead this most august tribunal by misstating the
facts and the issues. They attempt to rewrite the question presented as follows:
Resp. i. But Ramirez’s April 12, 2016 motion was not a “motion for extension of time
to file the corrected appendix”; rather, it was an unopposed 11th Cir. R. 42-2(e)
motion showing extraordinary circumstances to set aside the Eleventh Circuit’s
automatic dismissal and to remedy the default.
Nor was Ramirez’s motion “untimely”: it was due within fourteen days of April
11; Ramirez mailed it on April 12; and it was received on April 15. Moreover,
Bausch and Lomb did not oppose the relief requested. Considering that our friends
on the other side mislead this Court from the first, their response is unworthy of
this Court’s trust and should be disregarded.

2
The crux of Bausch and Lomb’s argument is that the petition was somehow
untimely,
1
even though Justice Thomas authorized the extension and even though
the petition was filed within the time provided. See Resp. 2–3, 7–14. But even if
Bausch and Lomb were able to call Justice Thomas’s order into question, as it does,
Ramirez’s June 2 and August 1 pro-se motions effectively sought rehearing, and
consequently the application for extension was timely because it was filed within
ninety days of the order disposing of the last of those motions on September 7.
See S. Ct. R. 13.3.
Bausch & Lomb next argues that there are no compelling reasons to grant the
petition. R. 14–15. But a court’s failure to rule on a motion duly filed pursuant to
that court’s own local rules compels correction of that error.
Last, Bausch & Lomb addresses the merits of the error. It argues again that
Ramirez’s motion was for an extension of time.
2
Resp. 15–18. But Ramirez had not
requested an extension of time: rather, he had filed a Local Rule 42-2(e) motion.
Bausch & Lomb’s repeated mischaracterizations of the facts render its response
unworthy of this Court’s credence. Bausch & Lomb then argues that 11th Cir. R.
42-2 does not conflict with the Federal Rules of Appellate Procedure. Resp. 18–19.
But Bausch & Lomb fails to address the arguments in the petition and its response
is utterly nonsensical. See id. And, as its last attempt to avoid a ruling on Ramirez’s
duly filed motion, Bausch & Lomb argues that no extraordinary circumstances were
shown. Resp. 19–23. That argument is as callous as it is meritless.
1
In several places, Bausch and Lomb’s response pokes fun at the language in Mr. Ramirez’s
pro-se court papers. E.g., Resp. 2, 8, 9, 11. But Mr. Ramirez is homeless and a non-native
speaker of English. Such quibbling is unbecoming and serves no useful purpose.
2
Bausch & Lomb complains of the timeliness of filings in the first appeal, which Bausch &
Lomb lost. Resp. 16. Bausch & Lomb is fighting yesterday’s war. And then Bausch & Lomb
misstates the facts for the second time, arguing again that Ramirez supposedly had made a
“second request for extension of time to file [his] … appendix[.]” Resp. 16 n. 7.

3
Bausch & Lomb attempts again to mislead this Court by asserting that Ramirez
waited until “June 2, 2016, forty-three days later, to file a motion to reinstate the
appeal.” Resp. 21. But Ramrez mailed his motion within twenty-four hours of the
FedEx Kinkos employee’s unexpected error. Bausch & Lomb is playing fast and loose
with the facts and not focusing on the real matter at issue. For a homeless man
without access to a computer or printer of his own, a third-party vendor’s failure to
properly and timely print a document according to Ramirez’s request certainly
constitutes extraordinary circumstances.
In sum, Bausch and Lomb asks this Court to condone the lower court’s failure to
consider and rule on the motion that Ramirez duly filed according to the lower
court’s local rules, and to dismiss Ramirez’s appeal in its entirety because a thirdparty
vendor misprinted the appendix.
This Court should reject Bausch & Lomb’s arguments and grant the relief that
Ramirez has requested, which is reasonable, correct under the law, and just.
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