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Rule 27-1 (11th Cir. R.) Download

RULE 27-1 | MOTIONS

(a) Number of Copies and Form of Motion.
(1) When a motion is filed in paper, an original and three copies of the motion and supporting papers must be filed if the motion requires panel action. An original and one copy of the motion and supporting papers must be filed if the motion may be acted upon by a single judge or by the clerk [see 11th Cir. R. 27-1(c) and (d)].
(2) A motion filed in paper must contain proof of service on all parties, and should ordinarily be served on other parties by means which are as equally expeditious as those used to file the motion with the court.
(3) A motion shall be accompanied by, and the opposing party shall be served with, supporting documentation required by FRAP 27, including relevant materials from previous judicial or administrative proceedings in the case or appeal. A party moving for a stay must include a copy of the judgment or order from which relief is sought and any opinion and findings of the district court.
(4) In addition to matters required by FRAP 27, a motion shall contain a brief recitation of prior actions of this or any other court or judge to which the motion, or a substantially similar or related application for relief, has been made.
(5) A motion for extension of time made pursuant to FRAP 26(b) shall, and other motions where appropriate may, contain a statement that movant’s counsel has consulted opposing counsel and that either opposing counsel has no objection to the relief sought, or will or will not promptly file an objection.
(6) In criminal appeals, counsel must state whether the party they represent is incarcerated.
(7) Both retained and appointed counsel who seek leave to withdraw from or to dismiss a criminal appeal must recite in the motion that the party they represent has been informed of the motion and either approves or disapproves of the relief sought and show service of the motion on the party they represent.
(8) Appointed counsel who seek leave to withdraw from representation in a criminal appeal must follow procedures set forth by the Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). It is counsel’s responsibility to ensure that the record contains transcripts of relevant proceedings in the case, including pre-trial proceedings, trial proceedings (including opening and closing arguments and jury instructions), and sentencing proceedings. Counsel’s brief in support of a motion to withdraw under Anders must contain a certificate of service indicating that the brief has been served on the party represented as well as on the other parties to the appeal.
(9) All motions filed with the court shall include a Certificate of Interested Persons and Corporate Disclosure Statement as described in FRAP 26.1 and the accompanying circuit rules.
(10) A motion must comply with the typeface and type style requirements of FRAP 32(a)(5) and 32(a)(6).
(11) A motion must comply with the requirement for references to the record found at 11th Cir. R. 28-5.

(b) Emergency Motions.
(1) Except in capital cases in which execution has been scheduled, a motion will be treated as an emergency motion only when both of the following conditions are present:
1. The motion will be moot unless a ruling is obtained within seven days; and
2. If the order sought to be reviewed is a district court order or action, the motion is being filed within seven days of the filing of the district court order or action sought to be reviewed.
Motions that do not meet these two conditions but in which a ruling is required by a date certain may be treated as “time sensitive” motions.

(2) A party requesting emergency action shall label the motion as “Emergency Motion” and state the nature of the emergency and the date by which action is necessary. The motion or accompanying memorandum shall state the reasons for granting the requested relief and must specifically discuss:
(i) the likelihood the moving party will prevail on the merits;
(ii) the prospect of irreparable injury to the moving party if relief is withheld;
(iii) the possibility of harm to other parties if relief is granted; and
(iv) the public interest.

Counsel filing the motion shall make every possible effort to serve the motion personally; if this is not possible, counsel shall notify opposing counsel promptly by telephone. (3) If the emergency motion raises any issue theretofore raised in a district court, counsel for the moving party shall furnish copies of all pleadings, briefs, memoranda or other papers filed in the district court supporting or opposing the position taken by the moving party in the motion and copies of any order or memorandum decision of the district court relating thereto. If compliance is impossible or impractical due to time restraints or otherwise, the reason for non-compliance shall be stated.
(4) To expedite consideration by the court in a genuine emergency, the movant or his or her counsel must telephone the clerk at the earliest practical time and describe a motion that has not yet been filed in writing. This is not a substitute for the filing required by FRAP 27(a). Failure to notify the clerk via telephone in advance may delay the processing of the motion.
(5) Except in capital cases in which execution has been scheduled, counsel will be permitted to file an emergency motion outside of normal business hours only when both of the following conditions are present:
1. The motion will be moot unless a ruling is obtained prior to noon [Eastern Time] of the next business day; and
2. If the order or action sought to be reviewed is a district court order or action, the motion is being filed within two business days of the filing of the district court order or action sought to be reviewed.


(c) Motions for Procedural Orders Acted Upon by the Clerk.
The clerk is authorized, subject to review by the court, to act for the court on the following unopposed procedural motions:
(1) to extend the time for filing briefs or other papers in appeals not yet assigned or under submission;
(2) to withdraw appearances except for court-appointed counsel;
(3) to make corrections at the request of counsel in briefs or pleadings filed in this court;
(4) to extend the time for filing petitions for rehearing for not longer than 28 days, but only when the court’s opinion is unpublished;
(5) to abate or stay further proceedings in appeals, provided that the requesting party files a written status report with the clerk at 30-day intervals, indicating whether the abatement or stay should continue;
(6) to supplement or correct records;
(7) to consolidate appeals from the same district court;
(8) to incorporate records or briefs from former appeals;
(9) to grant leave to file further reply or supplemental briefs before argument in addition to the single reply brief permitted by FRAP 28(c);
(10) to reinstate appeals dismissed by the clerk;
(11) to enter orders continuing on appeal district court appointments of counsel for purposes of compensation;
(12) to file briefs in excess of the page and type-volume limitations set forth in FRAP 32(a)(7), but only upon a showing of extraordinary circumstances;
(13) to extend the time for filing Bills of Costs.
(14) to permit the release of the record from the clerk’s custody but only upon a showing of extraordinary circumstances;
(15) to grant leave to adopt by reference any part of the brief of another;
(16) to intervene in a proceeding seeking review or enforcement of an agency order;
(17) to intervene pursuant to 28 U.S.C. §2403;
(18) for substitution of parties.
The clerk is authorized, subject to review by the court, to act for the court on the following opposed procedural motions:
(19) to grant moderate extensions of time for filing briefs or other papers in appeals not yet assigned or under submission unless substantial reasons for opposition are advanced;
(20) to expedite briefing in a direct appeal of a criminal conviction and/or sentence when it appears that an incarcerated defendant’s projected release is expected to occur prior to the conclusion of appellate proceedings.
The clerk is also authorized to carry a motion with the case where there is no need for court action prior to the time the matter is considered on the merits by a panel.

(d) Motions Acted Upon by a Single Judge. Under FRAP 27(c), a single judge may, subject to review by the court, act upon any request for relief that may be sought by motion, except to dismiss or otherwise determine an appeal or other proceeding. Without limiting this authority, a single judge is authorized to act, subject to review by the court, on the following motions:
(1) where opposed, motions that are subject to action by the clerk under part (c) of this rule;
(2) for certificates of appealability under FRAP 22(b) and 28 U.S.C. §2254;
(3) to appeal in forma pauperis pursuant to FRAP 24 and 28 U.S.C. §1915(a);
(4) to appoint counsel for indigent persons appealing from judgments of conviction or from denial of writs of habeas corpus or petitions filed under 28 U.S.C. §2255, or to permit court appointed counsel to withdraw;
(5) to extend the length of briefs except in capital cases, and to extend the length of petitions for rehearing or rehearing en banc;
(6) to extend the times prescribed by the rules of this court for good cause shown (note that FRAP 26(b) forbids the court to enlarge the time for taking various actions, including the time for filing a notice of appeal); in criminal appeals, counsel requesting an extension of time to file a brief must state whether the party they represent is incarcerated;
(7) to exercise the power granted in FRAP 8 and 9 with respect to stays or injunctions or releases in criminal cases pending appeal but subject to the restrictions set out therein, and under FRAP 18 with respect to stays pending review of decisions or orders of agencies but subject to the restrictions on the power of a single judge contained therein;
(8) to stay the issuance of mandates;
(9) to expedite appeals;
(10) to file briefs as amicus curiae prior to issuance of a panel opinion.

(e) Two-Judge Motions Panels. Specified motions as determined by the court may be acted upon by a panel of two judges.
(f) Motions Shall Not Be Argued. Unless ordered by the court no motion shall be orally argued.
(g) Effect of a Ruling on a Motion. A ruling on a motion or other interlocutory matter, whether entered by a single judge or a panel, is not binding upon the panel to which the appeal is assigned on the merits, and the merits panel may alter, amend, or vacate it.

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