Appellant's Motion To Reinstate Appeal

No. 08-16174-CC __________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________________________________ JAMES B. STEGEMAN, Plaintiff/Appellant v. SUPERIOR COURT, et., al. Defendants/Appellees __________________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, Atlanta Division 1:08-cv-01971-WSD ____________________________________________ APPELLANT’S MOTION TO SET ASIDE DISMISSAL, REMEDY DEFAULT, AND REINSTATE APPEAL, AND/OR MOTION FOR LEAVE TO FILE DOCUMENTS OUT OF TIME AND REMEDY DEFAULT, AND/OR MOTION TO STAY MANDATE OR RECALL MANDATE ________________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Road Stone Mountain, GA 30083 (770) 879-8737

COMES NOW, Appellant James B. Stegeman who files this Appellant’s Motion to Set Aside Dismissal, Remedy Default and Reinstate Appeal; and/or Motion for Leave to File Documents Out of Time and Remedy Default; and/or Motion to Stay Mandate or Recall Mandate.1 BRIEF BACKGROUND Appellant was granted Appeal in Forma Pauperis by District Court December 26, 2008; in which the District Court Order stated the Appeal is not frivolous, and that Appellant is disabled with limited resources. Due to Appellant’s limited experience in Appeals, and the fact there are numerous Federal Rules of Appellate Procedure, as well as 11th Cir. Rules and the Internal Operating Procedures, making at times, Appellate Rules of Procedure quite difficult to understand; coupled together with Appellant’s concern that he would not be able to properly represent himself and his cause before this Honorable Court, Appellant filed Motion for Appointment of Counsel January 7, 2009. Appellant further believed that should Counsel be appointed, he would fair much better with this Court; Appellant’s experience with Courts as a disabled pro

Abundans cautela non nocet. Abundant caution does not harm Black’s law Dictionary 7th Ed. Westgroup page 1616 Appellant is not altogether sure the proper titling for this Motion, therefore Appellant, in an abundance of caution, attempts to cover all possibilities and scenarios applicable. 1

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se litigant has revealed that the Court’s have a lack of tolerance for pro se litigants/ appellants, often holding them to much more stringent standards than attorneys. Lastly, and perhaps most importantly, Appellant hoped appointment of counsel would be granted which would alleviate the risk of violating the Rules and/or timelines, his Motion was denied on January 16, 2009. Appellant filed Motion for Reconsideration January 30, 2009. This Court Denied Reconsideration on February 11, 2009.

Motion for Appointment of Counsel was Denied and

Appellant’s ultimate concern, dismissal of his Appeal, is exactly what happened. In order to have a fair and impartial tribunal, Appellant filed Motion to Recuse Judges Hull, Wilson and Marcus filed February 18, 2009. Georgia Power Appellees filed Objective Responses February 23, 2009 to which Appellant filed Reply 2 on March 6, 2009.. Having found little or no information concerning Recusal within the Rules of Appellate Procedure, and the fact that Appellant has never attended law school and has no formal legal training, he truly believed Motion to Recuse would be Ruled on before Briefing was due.3 Georgia Uniform Superior Court Rules are almost exact and based upon District Court Rules. Appellant recently read that Appellant received his stamped “Filed” copy of Reply to Georgia Power Appellees’ Response on Motion to Recuse, although the Docket Report has never reflected the filing. Exhibit A is a copy of the Docket Report. Exhibit B is a copy of the Reply stamped “Filed” but never docketed. 2

It is Appellant’s understanding that Denial of Motion to Recuse is an appealable Ruling, just as most Rulings on Motions are. 3

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when there isn’t an applicable Appellate Rule, one could safely look to the Fed. R. Civ. P. Having filed Motion to Recuse, Appellant honestly believed there would be Ruling on the Motion and he would receive a new briefing date from the clerk.4 Georgia Power Appellees,5 responses clearly show they were also under the impression that the Motion to Recuse would change the due date for Briefing, see Appellees Georgia Power Company, Scott A. Farrow, and Brian P. Watt’s Response in Opposition to Appellant’s Motion to Recuse @ 2. Further, Appellant had checked the Docket Report on Pacer website, which showed Motion to Recuse was pending, but had not yet been ruled upon. Appellant honestly believed he would receive Notice of court action, a copy of this Court’s Ruling on the Motion to Recuse, and a letter from the Clerk stating a new due date for briefing. Appellant was shocked when he received a copy of the Clerk’s letter to James N. Hatten and the Appeal had been dismissed for failure to prosecute. The clerk failed to perform her duty to send the Notice referenced in 11 th Cir. R. 42-1(b) and further failed to alert Appellant that his Appeal was being dismissed and he had fourteen days to attempt a remedy. Further, the letter to Hatten states that case was dismissed the 24th of March, the letter was not even mailed to Hatten Georgia Power Appellees’ Response to Motion to Recuse makes complaint about delays in resolution of the case, showing they too expected a new briefing date. 4

Two of the Georgia Power Appellees are experienced attorneys and all Appellees are represented by attorneys 5

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until after March 30th. Appellant was never sent the Notice referenced in 11th Cir. R. 42-1(b) 6: “…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 from the date thereof the appeal will be dismissed for want of prosecution if the default has not been remedied by filing the brief… and a motion to file documents out of time.”. “Memorandum to Counsel or Parties”7 and letter from Clerk of this Court to James N. Hatten US District Court clerk dated March 30, 2009.8 There was never “Notice” about failure to prosecute sent to Appellant. The copy of the letter to District Court states that the Appeal had been considered dismissed March 24, 2009, and Order of Dismissal and Mandate issued March 30, 2009. The copy of the letter referenced several different Fed. R. App. P. Rules. Once Appellant had studied the Rules and realized that he could possibly Motion to set aside and remedy the default, and/or could Motion to Stay the Mandate, there was a telephone call to the Clerk, who stated that the Mandate had already been filed and there was no need to Motion for Stay of Mandate. Appellant was not told 6

See Exhibit A

Memorandum dated March 30, 2009 shows that Appellant’s Motion to Recuse was rendered MOOT: “The following filed motion has been rendered moot by a dispositive order or opinion of this court dated March 30, 2009: Motion to Recuse (Appellant)” Exhibit C is a copy of the Memorandum. 7

A copy of the Clerk to Clerk letter is Exhibit D dated March 30, 2009. Appellant had “AQuickDelivery” courier service hand deliver the Brief and Record excerpts Monday, April 13, 2009 which shows signed for by Ms. W. Crawford as shown on the invoice Exhibit E 8

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of a Motion to Recall the Mandate. Appellant was further under the impression, from conversation with the Clerk, that no other Motion need be filed. One would come to the obvious conclusion that this Court intended to Dismiss the Appeal and not afford Appellant what others have been afforded in the same situation; attempt to remedy the default. Appellant filed his Brief and Record excerpts April 13, 2009 per his April 6, 2009 conversation with the clerk. ARGUMENT AND CITATIONS OF AUTHORITY The Clerk of this Court advised that Motion to Recuse does not delay the filing of the brief because it is not ruled on. Although Appellant has found nothing that indicates how this Court handles Motions to Recuse, Appellant finds it hard to believe that the Motion is not Ruled on as is done in every other kind of Court in this Country; they all Rule on Motions to Recuse. According to this Court’s own Rules, the Clerk was to have sent Appellant the Notice dictated by 11th Cir. R. 42-1(b), but failed to do so. Appellant can only rely on his imagination for the reason why he was not afforded what the Rules show. Surely had counsel been appointed, there would have been no reason for the Clerk to send the Notice; and if there had been, the incident of the Clerk’s failing to send the Notice would not be an issue. Appellant has a hard time believing that the Clerk would have failed to send an attorney the Notice:

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“the services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits.” Evitts v. Lucey, 469 U.S. 387, 393 (1985) (citation omitted). Further, although Plaintiff McDonald is not part of this Appeal, per Judge Hull’s Order Denying Appointment of Counsel,9 whereas according to The United States Supreme Court’s holding in Becker,10 McDonald should have been allowed to cure the omission. See Wash v. Johnson, 343 F.3d 685 (5th Cir. 08/12/2003) @ [19]: “The Supreme Court's holding in Becker, that the signature requirement on a notice of appeal is not jurisdictional and may be cured if properly supplied once omission is called to a party's attention, effectively overrules our holdings in Mikeska and Carter11 that the signature requirement can be cured only within the time for filing a notice of appeal under FED. R. APP. P. 4(a). Appellant was supposed to have been notified that there was fourteen days in which to attempt to remedy default, and that there were twenty-one days until Mandate would be filed. Appellant was not afforded this courtesy, the Appeal was dismissed and the Motion to Recuse rendered MOOT without a Ruling. Nevertheless, this disabled pro se Appellant, acted quickly by filing Appellant’s Brief and Records Excerpts within the time the advised by the Clerk, 9

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which listed McDonald as an Appellant and was signed by her Becker v. Montgomery, 532 U.S. 757 (2001)

Mikeska v. Collins, 928 F.2d 126 (5th Cir. 1991); Carter v. Stalder, 60 F.3d 238, 239 (5th Cir. 1995) 11

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which was seven days. Appellant has shown a good-faith effort to have his Appeal reinstated, as well as shown good cause. The Order on Reinstatement of Appeal in United States v. Contreras, No. 016406 (10th Cir. 06/04/2007) from [U] United States v. Contreras-Castellanos, 191 Fed. Appx. 773 (10th Cir. 08/14/2006) whose Rules are exact and in which there is explanation for reintstatemnt shows the 10th Cir. held has held: “In United States v. Winterhalder, 724 F.2d 109 (10th Cir. 1983) (per curiam), we explained the proper procedure for … seeking reinstatement of a direct appeal following dismissal for failure to prosecute…” A dismissal for failure to prosecute and reinstatement of an appeal following such a dismissal are governed by Tenth Circuit Rules 42.1 and 42.2. Those rules provide: 42.1 Dismissal for failure to prosecute. When an appellant fails to comply with the Federal Rules of Appellate Procedure or these rules, the clerk will notify the appellant that the appeal may be dismissed for failure to prosecute unless the failure to comply is remedied within a designated time. If the appellant fails to comply within that time, the clerk will enter an order dismissing the appeal and issue a certified copy of that order as the mandate. The appellant may not remedy the failure to comply after the appeal is dismissed, unless the court orders otherwise. 42.2 Reinstatement. A motion to reinstate an appeal dismissed for failure to prosecute may not be filed unless the failure is remedied or the remedy for the failure accompanies the motion. “if an appeal is improvidently dismissed in this court, the remedy is by way of a motion directed to this court asking for a recall of the mandate...” Id. at 111 (citations omitted).”

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It has also long been held that the Court is not required to dismiss every appeal which does not meet the time limitations.

See Marcaida v. Rascoe, 569

F.2d 828 (5th Cir. 03/02/1978): “This court is not required to dismiss every appeal which does not meet the time limitations of Rule 31. In Phillips v. Employers Mut. Liability Ins. Co., 239 F.2d 79, 80 n.2 (5 Cir. 1956), the court said that the late filing of briefs is "at most [a] nonjurisdictional [defect] in the prosecution of this appeal, which we consider insufficient to warrant dismissal." See also King v. Laborers Internat'l Union, 443 F.2d 273 (6 Cir. 1971); United States v. Edwards, 366 F.2d 853 (2 Cir. 1966), cert. denied, 386 U.S. 908, 87 S. Ct. 852, 17 L. Ed. 2d 782 (1967); cf. Walker v. Mathews, 546 F.2d 814 (9 Cir. 1976) (late filing of record).” In Marcaida, the Court Granted Motion to Reinstate although the Court noted that “This appeal has been handled in a very slipshod manner. It goes without saying that counsel who proceed in such fashion risk dismissal, …We do not want to see this sort of display again.” In Phillips v. Employers Mutual Liability Insurance Company of Wisconsin, 239 F.2d 79 the Court held: “…appellee's motion to dismiss for appellant's late filing of the record and brief on appeal… we simply hold that appellant's failure in these respects to show strict compliance … are at most non-jurisdictional defects …, which we consider insufficient to warrant dismissal. See Martin v. Handy-Andy Community Stores of Texas, 5 Cir., 214 F.2d 10, 11; Columbia Lumber Co. v. Agostino, 9 Cir., 184 F.2d 731, 733; cf. Fong v. James W. Glover, Ltd., 9 Cir., 197 F.2d 710, 712”

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In Martin, et., al., v. Handy-Andy Community Stores, Inc., of Texas, et., al., 214 F.2d 10 (5th Cir. 1954) the Court held: “Without further discussion, it is sufficient to state that …this Court has held that it may consider an appeal notwithstanding such failures… See, for example, Dawson v. McWilliams, 5 Cir., 146 F.2d 38. The motion to dismiss is denied.” CONCLUSION Having shown that the failure to prosecute dismissal of Appellant’s Appeal could have been avoided had he been appointed counsel; Appellant’s honest belief that when Motion to Recuse was Ruled upon there would be a new date given for his Brief to be filed; Appellant’s honest belief that should Motion to Recuse be Granted, the Denial of Motion for Appointment of Counsel would be reviewed and possibly Granted; Fed. R. App. P. shows that Appellant should have received Notice about failure to prosecute and given fourteen days, but the Clerk failed to notify Appellant; and numerous other situations beyond Appellant’s control have plagued this Appeal to date. Appellant Prays this Court will be lenient and understanding to his Disabled Pro Se status and Grant this Motion or Motions. Appellant has made a good-faith effort to remedy the default, he quickly complied with the filing of his Brief and Record Excerpts, and Prays that he be allowed to proceed with his Appeal. Should this Honorable Court Grant this motion, Appellant will give good faith effort to prevent future mistakes. 10

Respectfully submitted this 21st day of April, 2009

BY: ___________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782

U. S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CERTIFICATE OF SERVICE

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James B. Stegeman vs. Superior Court, et., al.,

Appeal No. 08-16174-CC

I Certify that I have this 4th day of February, 2009 served a true and correct copy of the foregoing Appellant’s Motion to Set Aside Dismissal, Remedy Default and Reinstate Appeal; and/or Motion for Leave to File Documents Out of Time and Remedy Default; and/or Motion to Stay Mandate or Recall Mandate. upon Defendants/Appellees, through their attorneys on record by causing to be deposited with the U.S.P.S., First Class Mail, proper postage affixed thereto, addressed as follows: Daniel S. Reinhardt Troutman Sanders, LLP Bank of America Plaza – Suite 5200 600 Peachtree Street, NE Atlanta, GA 30308-2216

Devon Orland State of Georgia Dept. of Law 40 Capitol Square, S.W. Atlanta, GA 30334-1300

_______________________________

JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782

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