Look at this. On 11/18/2013 I suddenly received a phone call from the lawyer firm of one of the defendants (Action Stock Transfer Corporation) requesting that I agree on an extension for them to file their response brief with the Appellate Court. They did not appear to the court until two days from the due date for them to file their appeal as if they were asleep and their alarm clock just rang. They also were not asking for a day or two but the whole 30 days given to them to respond, again. I agreed which probably was a mistake. Nevertheless, my intention was to make my agreement contingent on the existence of good cause that is far from what the joke of their actions and what they submitted satisfies. In other words I was counting on the court to act reasonably and my agreement was intended not to stand against a court's decision for a good cause but look at what they did:
1-They appeared only two days before the due date.
2-They failed to comply with 11th Circuit Local Rule 26.1-2 (c) which required them to file within 14 days from the CIP certificate (FRAP 26.1) I filed on the 9/24/2013 a notice with the court indicating their agreement or changes to that certificate.
3-They failed to comply with the 11th Circuit Local Rule 31- 2 (c) which states that "If a party’s first request for an extension of time to file a brief or record excerpts requests an extension of more than seven calendar days, the motion must be filed at least seven calendar days in advance of the due date". Their due date was on the 20 of November and they filed their motion on the 18th.
4- They also failed to satisfy the particularity requirement stated in 11th Circuit Local Rule 31- 2 (a) which states that "A first request for an extension of more than seven calendar days must be made by written motion setting forth with particularity the facts demonstrating good cause".
Here is what they mentioned as "grounds" for their request (They used "ASTC" to stand for Action Stock Transfer Corporation):
"1. Appellee, ASTC’s answer to the Appellant’s Initial Brief is due on November 20, 2013.
2. Appellee is in need of additional time in which to finalize its answer to the Appellant’s Initial Brief.
3. The undersigned has in good faith consulted with Appellant regarding this matter. Appellant has agreed to an enlargement of time of thirty days (30) for ASTC to serve its Answer Brief up to and including December 20, 2013.
4. This is the first request for an extension and it is not being made for any improper purposes or for delay"
Do you see any "particularity" here as stated by Local Rule 31- 2 (a)? Do you even find it stating any cause worthy of noticing, not to mention the "good cause" mentioned in that same rule ?
Assuming there was a good cause, although clearly there isn't, where is that other good cause that prevented them from filing that request at least seven days before the due date as required by Local Rule 31- 2 (c)? They did not appear until the last two days before the due date and did not even bother themselves to file their required note of agreement or change with the CIP certificate I filed with the court much earlier.
In fact, that same Local Rule 31- 2 (c) which stated the requirement of seven days in advance for such request also went on to say about a motion that fails to satisfy that condition:
" Such a motion received by the clerk less than seven calendar days in advance of the due date for filing the brief or record excerpts will generally be denied by the court, unless the motion demonstrates that the good cause on which the motion is based did not exist earlier or was not and with due diligence could not have been known earlier or communicated to the court earlier"
Like I said above they failed to satisfy the initial good cause condition, let alone another good cause condition for not filing their motion based on that first good cause earlier.
Remember, this is not the same as when someone unexpectedly receives a complaint and request an extension of time to respond. This is an appeal process with the notice of appeal served on them much earlier so receiving my brief was expected and the issues are not new.
Notice also, that this is not a party representing itself. It is a lawyer and not just a lawyer from anywhere. It is a lawyer from a state belonging to the same Eleventh US Circuit of Appeal. Compare that to my position here as a layman representing himself who is not even from the same appeal circuit . Nevertheless, I only missed on recognizing the CIP form requirement which caused a late filing of only one day (actually only couple of hours) and filed the appendix for the brief one day late. That later thing happened during a time when my brief itself was not delivered properly to the court because of an intentional action by the US mail and I did not even know when ,or even if , it will be received. Yet despite all that confusion and uncertainty and the US mail conspiring with the defendant's side I was only late only one day and I am one person working by myself. So what happened with that lawyer firm couldn't he request his secretary to file this motion seven days before the due date if he was taking things with any level of seriousness?
Here is what they mentioned as "grounds" for their request (They used "ASTC" to stand for Action Stock Transfer Corporation):
"1. Appellee, ASTC’s answer to the Appellant’s Initial Brief is due on November 20, 2013.
2. Appellee is in need of additional time in which to finalize its answer to the Appellant’s Initial Brief.
3. The undersigned has in good faith consulted with Appellant regarding this matter. Appellant has agreed to an enlargement of time of thirty days (30) for ASTC to serve its Answer Brief up to and including December 20, 2013.
4. This is the first request for an extension and it is not being made for any improper purposes or for delay"
Do you see any "particularity" here as stated by Local Rule 31- 2 (a)? Do you even find it stating any cause worthy of noticing, not to mention the "good cause" mentioned in that same rule ?
Assuming there was a good cause, although clearly there isn't, where is that other good cause that prevented them from filing that request at least seven days before the due date as required by Local Rule 31- 2 (c)? They did not appear until the last two days before the due date and did not even bother themselves to file their required note of agreement or change with the CIP certificate I filed with the court much earlier.
In fact, that same Local Rule 31- 2 (c) which stated the requirement of seven days in advance for such request also went on to say about a motion that fails to satisfy that condition:
" Such a motion received by the clerk less than seven calendar days in advance of the due date for filing the brief or record excerpts will generally be denied by the court, unless the motion demonstrates that the good cause on which the motion is based did not exist earlier or was not and with due diligence could not have been known earlier or communicated to the court earlier"
Like I said above they failed to satisfy the initial good cause condition, let alone another good cause condition for not filing their motion based on that first good cause earlier.
Remember, this is not the same as when someone unexpectedly receives a complaint and request an extension of time to respond. This is an appeal process with the notice of appeal served on them much earlier so receiving my brief was expected and the issues are not new.
Notice also, that this is not a party representing itself. It is a lawyer and not just a lawyer from anywhere. It is a lawyer from a state belonging to the same Eleventh US Circuit of Appeal. Compare that to my position here as a layman representing himself who is not even from the same appeal circuit . Nevertheless, I only missed on recognizing the CIP form requirement which caused a late filing of only one day (actually only couple of hours) and filed the appendix for the brief one day late. That later thing happened during a time when my brief itself was not delivered properly to the court because of an intentional action by the US mail and I did not even know when ,or even if , it will be received. Yet despite all that confusion and uncertainty and the US mail conspiring with the defendant's side I was only late only one day and I am one person working by myself. So what happened with that lawyer firm couldn't he request his secretary to file this motion seven days before the due date if he was taking things with any level of seriousness?
As for my brief, it was filed on time despite that I did not recognize how for my case the requirement of receiving the record from the district court is considered satisfied with the docketing of the appeal notice and as a result of that I got only the 30 days remaining of the 40 days time period which I was under the impression that it hadn't started yet. I also had to deal with a set of issues of which the issue related to this brief related to Defendant Action is only one item.
Even in the first letter I received which set the time for filing my brief I was told that requests for extension of time will be "frowned upon" by the court, not to mention a request like this.
As you can see, this was far from being a good cause request and one cannot see why would it be satisfying to any judge acting in good faith. It is a request that was the result of extreme recklessness or playing games. It asks for no reason for a repetition of the entire period given for it to respond like a child asking for a "do over" in a game he is playing just because he likes to have another chance.
Despite all that, the request was granted.
By the way, I even sent my brief and appendix to the defendants through priority mail.
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