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UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

[plfName]	)	CASE NUMBER
Appellant/Plaintiff	)	[caseNo]
)
v.	)
)	(LT)
[defName]	)	[caseNoLT]
Appellee/Defendant	)

APPELLANT’S MOTION FOR LEAVE TO FILE HIS TRANSCRIPT ORDER FORM ‘OUT-OF-TIME’1/

Appellant, ELIAS MAKERE, on this [d] day of [MMM] [YYYY], respectfully moves this Court to allow [him/her] to file [his/her] transcript order form today.

Key Points:

Points	[point001]; [point002]; [point003];

Grounds	equitable; no prejudice;

Table of Contents:

Context	2nd Page
Motion	3rd Page
Certificates	13th Page
Attachments	17th Page

Background:	Appellant prepared his transcript order form
Problem:	Clerk suggested that the form will be considered late
Request:	Court allows Appellant to file his form today

Rule 10-1 | 11th Cir. R. | Ordering the Transcript – Duties...

“Appellant’s written order for a transcript or certification that no transcript will be ordered... must be filed... within 14 days after filing the notice of appeal or after entry of an order disposing of the last timely motion of a type specified in FRAP 4(a)(4).”

Rule 42-1(b) | 11th Cir. R. | Dismissal of Appeals

“...when appellant fails to file a brief or other required papers within the time permitted... the clerk shall issue a notice... that upon expiration of 14 days... the appeal will be dismissed for want of prosecution if the default has not been remedied by filing the brief or other required papers and a motion to file documents out of time. Within that 14-day notice period a party in default must seek leave of the court, by appropriate motion, to file documents out of time or otherwise remedy the default.”

Rule 4(a)(4) | Fed. R. App. P. | Appeal as of Right – When Taken

“(A) If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure — and does so within the time allowed by those rules — the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(vi) for relief under Rule 60 if the motion is filed within the time allowed for filing a motion under Rule 59.”

Abbreviations

4DCA	-	Florida’s 4th District Court of Appeal
FCHR	-	Florida Commission on Human Relations, The
FS	-	Florida Statute
LT	-	Lower Tribunal
USCA11	-	US Court of Appeals, 11th Circuit
USFLMD	-	US District Court, Florida, Middle District

MOTION

Pertinent History

[hist001].

[hist002].

[hist003].

[hist004].

[hist005].

[hist006].

Analysis

[any001].

[any002].

[any003].

[any004].

Arguments in Favor of Permitting an ‘Out-of-Time’ Submission

Decision on the Merits

Allowing Appellant to file [his/her] transcript order form ‘out-of-time’ will support a decision on-the-merits.1/ An axiom that the appellate courts have long extolled:

“It is axiomatic that Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits.”

- Latin v. Italian, 596 So.2d 1174 (4DCA 1992)

Equitable Tolling

Equitable Tolling would also apply to an ‘out-of-time’ filing. In 2004, the US Supreme Court established that procedural deadlines are non-jurisdictional; thereby permitting equitable tolling (highlights added):

“We clarify, first, that the question before us — whether Scarborough is time barred by § 2412(d)(1)(B) from gaining the fee award authorized by § 2412(d)(1)(A) — does not concern the federal courts' "subject-matter jurisdiction."... The issue is not whether, but when, §§ 2412(d)(1)(A) and (B) require a fee applicant to "allege that the position of the United States was not substantially justified." As we recently observed:”

“Courts, including this Court, ... have more than occasionally [mis]used the term `jurisdictional' to describe emphatic time prescriptions in [claim processing] rules.... Classifying time prescriptions, even rigid ones, under the heading `subject matter jurisdiction' can be confounding. Clarity would be facilitated if courts and litigants used the label `jurisdictional' not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority."”

“In short, § 2412(d)(1)(B) does not describe what "classes of cases," id., at 455, the CAVC is competent to adjudicate; instead, the section relates only to postjudgment proceedings auxiliary to cases already within that court's adjudicatory authority. Accordingly, as [Kontrick v. Ryan, 540 US 443 (2004)] indicates, the provision's 30-day deadline for fee applications and its application-content specifications are not properly typed "jurisdictional."”

Scarborough v. Principi, 541 US 401 (2004)

In more explicit terms, the Scarborough court held that [the non-jurisdictional nature of the filing deadline tendered a conclusion that] a determination on-the-merits was the proper course of action (highlights added):

“We hold that a curative amendment is permissible and that Scarborough's fee application, as amended, qualifies for consideration and determination on the merits.”

Scarborough v. Principi, 541 US 401 (2004)

In fact, several courts in this circuit have applied equitable tolling to this specific 30-day deadline. See:

Cruz v. Berryhill, 347 F. Supp. 3d 1199 (USFLSD 2018);

Miller v. Berryhill, 8:17-cv-1470 (USFLMD 4/12/19)

Of course, this specific 30-day deadline (found in Scarborough) is analogous to the instant appeal:

“In view of the fact that the filing of [a Notice of Appeal] is not jurisdictional, but is analogous to statutes of limitation which are subject to equitable considerations”

Castillo v. Dept. of Admin., 593 So.2d 1116 (2DCA 1992)

Importantly, this Court has long-held that equitable tolling should relieve a litigant from a [perceived] filing mishap:

“The doctrine of equitable tolling abates the harsh operation of the statute of limitations under certain circumstances in which barring a plaintiff's potentially meritorious action would be unjust.”

Justice v. US, 6 F.3d 1474 (11th Cir. 1993)

Altogether, this Court can apply equitable tolling to this matter; especially since it will not prejudice either party (see Scarborough at 422-423).

Timeliness (ie, Transcript Order Form is Not ‘Out-of-Time’)

Above all (ie, the best argument, perhaps), is the fact that Appellant’s transcript form is not yet due (¶20 supra). Thus, the Clerk’s original default was erroneous (¶13 supra). Erroneous defaults, of course, are invalid from the beginning (highlights added):

“We hold that the clerk's default was void ab initio because appellants served their answer and affirmative defenses before the clerk entered its default. Therefore, appellants were not required to raise the argument in the trial court that the default was void in order to preserve that point for appellate review... Accordingly, we reverse and remand with directions to the trial court to vacate the default and the final judgment entered thereon”

Derosa v. Pugliese, 782 So.2d 1011 (4DCA 2011)

So – from beginning to end – this Court is well-positioned to:

stave off default; and/or

accept Appellant’s transcript order form [today].

Nature of Relief Sought

Thus, Appellant asks this Court to accept [his/her] transcript order form on this day. It can be found as an attachment to this motion. [Attachment A]

CONCLUSION

WHEREFORE, Appellant respectfully asks this Court to accept his transcript order form [today].

Dated this [D] day of [MMMM] [YYYY].

Respectfully submitted,

/s/ [plfName]

[plfName], Plaintiff

[plfAddy]

P: [plfPhn]

E: [plfEml]

W: TextBookDiscrimination.com

Get Booked Up on Justice!

Endnotes:

Resources: (text-searchable)

How to Write a Motion for Leave to File a Transcript Order Form 'Out-of-Time'

Samples (Motions for Leave to File a Transcript Order Form 'Out-of-Time')

Templates (Motions for Leave to File a Transcript Order Form 'Out-of-Time')

CERTIFICATE OF COMPLIANCE

Type-Volume

This document complies with the word limit of Rule 32(a)(7)(B)(i) Fed. R. App. P., because - excluding the parts of the document exempted by Rule 32(f) - this document contains 2,192 words.

or

This brief complies with the line limit prescribed by Rule 32(a)(7)(B)(i) Fed. R. App. P., because – excluding the parts of the document exempted by Rule 32(f) – this document contains [NNNN] lines of monospaced text.

Typeface and Type-Style

This document uses Courier New (12-Pt) Font; thereby complying with the typeface requirements of Rule 32(a)(5)(B) Fed. R. App. P.. This document also satisfies the type-style requirements of Rule 32(a)(6).

[M]/[D]/[YYYY]	/s/ [plfName]
Date	[plfName]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this [D] day of [MMMM] [YYYY], I electronically filed the foregoing with the Clerk of Courts by using PACER; which will send a notice of electronic filing to the attached service list.

/s/ [plfName]

SERVICE LIST

[defAtt], Esquire ([barNum]) E: [defEml] P: [defPhn] (defendant’s trial lawyers)

CIP

United States Court of Appeals

Eleventh Circuit

[caseNo]

[cptn]

{unchanged}

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

[cptn], [caseNo]

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Lower Tribunal:

[judgeNm001]	Magistrate
[judgeNm002]	District Judge

Non-Parties:

[persNm001]
[persNm002]
[persNm003]
[persNm004]

Parties:

[defName]	([stockTicker])
[plfName]	Appellant

Appellant is not a subsidiary/affiliate of a publicly owned corporation. Pursuant to Rule 26.1-2 11th Cir. R., Appellant does not know of any other entities that have interest in this case. Appellant hereby certifies that this CIP is complete.

ATTACHMENT A

SHORT TITLE:	Appellant’s Transcript Order Form
DATE:	[M]/[D]/[YYYY]
DOC TYPE:	Certificate
TRIBUNAL:	US Circuit Court, 11th Circuit
CASE NO:	[caseNo]
CASE CAPTION:	[cptn]
SIZE:	9 Pages

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