Motion To Enlagre Time To File Brief
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION In re: MARK A. ADAMS
CASE NO.: 8:08-cv-01570-RAL
Appellant,
CORPORATE SPORTS MARKTEING GROUP, INC., ET. AL., Appellees.
1
APPELLANT'S MOTION TO ENLARGE TIME TO FILE BRIEF AND MOTION TO VACATE ORDER PURPORTEDLY ENTERED ON SEPTEMBER 3,2008 REQUIRING APPELLANT TO FILE HIS INITIAL BIUEF BY SEPTEMBER 8,2008 COMES NOW, the Appellant, Mark A. Adams, appearing pro se, and moves for an enlargement of time to file his initial brief and moves to vacate the order purportedly entered on September 3,2008 requiring Appellant to file his initial brief by September 8,2008, showing: 1.
On September 3,2008, Judge Richard A. Lazzara purportedly signed an order stating, "Appellant shall file his initial brief on or before September 8,2008, failing which this appeal will be dismissed without further notice." However, this Court's online docket does not show a link to the order purportedly signed by Judge Lazzara on September 3,2008, and no such order has been received by the Appellant.
2.
On or after September 4,2008, the clerk of this Court mailed a Notice of Electronic Filing to the Appellant the pertinent part of which stated, "Appellant shall file his initial brief on or before September 8,2008, failing which this appeal will be
dismissed without further notice. Signed by Judge Richard A. Lazzara on 9/03/2008." Please see a copy of Notice of Electronic Filing including a copy the clerk of this Court's envelope which transmitted such notice to the Appellant showing a postal meter stamp bearing the date of September 4,2008, which is attached as Exhibit A. 3.
Pursuant to Federal Rule of Appellate Procedure 25(c)(4), the time of service ofthe Notice of Electronic Filing was September 4,2008, the date that it was mailed to the Appellant.
4.
Federal Rule of Appellate Procedure 26(c) adds 3 days to the prescribed period of time in which to respond when service is via mail. In addition, Rule 26(a) provides that Saturdays and Sundays should be excluded from a computation of time when the period in which to respond is less than 11 days and that Saturdays and Sundays should be excluded in computing the time in which to respond if such day is the last day.
5.
Therefore, pursuant to Rules 25 and 26, the Notice of Electronic Filing is deemed to have been received by the Appellant on September 8,2008, the day upon which the Appellant has been purportedly ordered to file his initial brief.
6.
Rule 26(b) provides that the Court may extend the time prescribed by its order to perform any act.
7.
In addition, the Appellant has reviewed this Court's online docket and discovered that the complete record in decisions appealed from in Bankruptcy Case No. 8:05-
bk-29501-PMG and Adversary Case No. 8:06-ap-00185-PMG has not been transmitted to this Court. 8.
Furthermore, although the Notice of Appeal and the Appeal Cover Sheet state that the Appellant is appealing the Entry of Default by the Clerk and the Default Final Judgment entered on April 22,2008 in Adversary Case No. 8:06-ap-00185-PMG and the Order Denying Discharge of Debtor entered on April 23,2008 in Banhptcy Case No. 8:05-bk-29501-PMG and all underlying orders entered in such actions, the clerk of the Bankruptcy Court failed to even transmit the erroneously entered Order Denying Discharge of Debtor to the clerk of this Court.
9.
Due process requires a complete record on appeal. See, e.g., Thomas v. State, 828 So.2d 456,457 (Fla. 4th DCA 2002) and Beruhe v. State, 771 So.2d 1263 (Fla. 2d DCA 2000).
10.
"For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Buldwin v.
Hule, 1 Wall. 223,233, 17 L.Ed. 53 1. See Windsor v. McVeigh, 93 U.S. 274,23 L.Ed. 914; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct 841,42 L.Ed. 215; Grunnis v.
Oredean, 234 U.S. 385,34 S.Ct. 779,58 L.Ed. 1363. It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545,552,85 S.Ct. 1187, 1191, 14 L.Ed.2d 62." fientes v. Shevin, 92 S. Ct. 1983, 1994 (1972). (Emphasis added).
11.
As the order purportedly entered by Judge Lazzara on September 3,2008, notice of which was mailed by the clerk of this Court to the Appellant on or after September 4, 2008, did not allow a meaningful time in which the Appellant could respond and file his brief, such order should be vacated as it violates the Appellant's fundamental right to due process.
12.
In addition, as the record transmitted to this Court by the clerk of the Bankruptcy Court is incomplete, the order purportedly entered by Judge Lazzara on September 3, 2008, should be vacated to allow a reasonable period of time for the Appellant to request and for the clerk of the Bankruptcy Court to transmit an amended record to this Court as due process requires a complete record on appeal.
13.
Violation of a right made specific by statutes, rules or settled interpretations of them is a violation of 18 U.S.C. 5 242 which provides criminal penalties for a deprivation of rights under color of law. U S v. Lanier, 520 U.S. 259,267 (1997).
14.
The Appellant will diligently request the clerk of the Bankruptcy Court to transmit an amended record to this Court and respectfully requests an enlargement of time in good faith and will suffer prejudice if it is not granted.
15.
The Appellees will not suffer any prejudice from a brief enlargement of time in which to allow the clerk of the Bankruptcy Court to transmit an amended record to this Court and a brief enlargement of time after which to allow the Appellant to file his brief.
WHEREFORE, the Appellant respectfully requests this Court to vacate the order
purportedly entered bv Judge i ,a77ara on September 3, 2008 requir~ngthe filing of his appellate bricf on Septenlber 8,2008 and tt) enter an order granting a reasotlabte er~largemcnlof'llmc to for the Appellant to request the clerk of the Bankruptcy Court lo trzu~srnilan amended record to this Court, for such record to be lrarlsrnitte~ito this Court. and
in which the Appellant may file his brief after such amended record has been :nransmittctllo this Court
PROOF OF SERVICE I tleclare under penalty of perjury that 1 have served ii true and ccmect copy of this nottcc via U.S. Mail to Stephen I,. Meiriinger, Esquire, attorney fox the Bankruptcy P rustee, :ir
707 North Franklin Street, Suite 850; 'I'mpa, FL 33602: lo Donald 13 Kirk, Esquire, of
I'o~LerWhite Boggs Barker, P.A., colmsel for 'l'imothy W. Weber, at P.0. Box 1438: 'Tampa, FL, 33601; and to Timothy W. Weber, Esquire, pro se of Hal:taglia, Ross, Dkus & Wein. PA., at 1'. 0. [lox 41 100; St Petcrsbury, FL 33743 on this
.;(, i,
,j.__. L-,
day of September,
.
Mark A. Adarns, pro se 41 29 Bdington Dr. Valrico, FL. 33596 I'elephone: 813-643-441 2
......-....
Exhibit A
Case: 8 : 0 8 - c v - 0 1 5 7 0 - ~ ~ ~
Mark A. Adam8 4129 Ballington Dr. Valrico, FL 33594
MIME-Versi0n:l.O Prom:[email protected] To:[email protected] Message-Id:[email protected]> BCC: Subject:Activity in Calle 8:08-cv-01570-RAL Adams v. Corporate sports Marketing Group, Inc., et a1 Order Content-Type: text/plain***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronioally, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.'U.S. Dietrict Court Middle District of Florida Notice of Electronic Filing The following transaction was entered on 9/3/2008 9:05 AM EDT and filed on 9/3/2008 case Name: Adams v. Corporate Sports Marketing Group. Inc., et a1 case Number: 8:08-cv-1970 https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.p1?217240 Filer: Document Number: 6 (No document attached) Docket Text: ENDORSED ORDER that Appellant, proceeding pro se, has failed to file his initial brief within 15 days of the entry of the appeal on this Court's docket as required by Federal Rule of Bankruptcy Procedure 8009lal (1). Accordingly, Appellant shall file his initial brief on or before September 8. 2008, failing which this appeal will be dismissed without further notice. Signed by Judge Richard A. Lazzara on 9/3/2008. (DM01 8:08-CV-1570 Notice has been electronically mailed to: Timothy W. Weher [email protected], [email protected] Donald R. Kirk [email protected], [email protected]. [email protected] 8:08-CV-1570 Notice has been delivered by other means to: Mark A. Adams 4129 Ballington Dr. Valrico, FL 33594
CASE NO.: 8:08-cv-01570-RAL
Appellant,
CORPORATE SPORTS MARKTEING GROUP, INC., ET. AL., Appellees.
1
APPELLANT'S MOTION TO ENLARGE TIME TO FILE BRIEF AND MOTION TO VACATE ORDER PURPORTEDLY ENTERED ON SEPTEMBER 3,2008 REQUIRING APPELLANT TO FILE HIS INITIAL BIUEF BY SEPTEMBER 8,2008 COMES NOW, the Appellant, Mark A. Adams, appearing pro se, and moves for an enlargement of time to file his initial brief and moves to vacate the order purportedly entered on September 3,2008 requiring Appellant to file his initial brief by September 8,2008, showing: 1.
On September 3,2008, Judge Richard A. Lazzara purportedly signed an order stating, "Appellant shall file his initial brief on or before September 8,2008, failing which this appeal will be dismissed without further notice." However, this Court's online docket does not show a link to the order purportedly signed by Judge Lazzara on September 3,2008, and no such order has been received by the Appellant.
2.
On or after September 4,2008, the clerk of this Court mailed a Notice of Electronic Filing to the Appellant the pertinent part of which stated, "Appellant shall file his initial brief on or before September 8,2008, failing which this appeal will be
dismissed without further notice. Signed by Judge Richard A. Lazzara on 9/03/2008." Please see a copy of Notice of Electronic Filing including a copy the clerk of this Court's envelope which transmitted such notice to the Appellant showing a postal meter stamp bearing the date of September 4,2008, which is attached as Exhibit A. 3.
Pursuant to Federal Rule of Appellate Procedure 25(c)(4), the time of service ofthe Notice of Electronic Filing was September 4,2008, the date that it was mailed to the Appellant.
4.
Federal Rule of Appellate Procedure 26(c) adds 3 days to the prescribed period of time in which to respond when service is via mail. In addition, Rule 26(a) provides that Saturdays and Sundays should be excluded from a computation of time when the period in which to respond is less than 11 days and that Saturdays and Sundays should be excluded in computing the time in which to respond if such day is the last day.
5.
Therefore, pursuant to Rules 25 and 26, the Notice of Electronic Filing is deemed to have been received by the Appellant on September 8,2008, the day upon which the Appellant has been purportedly ordered to file his initial brief.
6.
Rule 26(b) provides that the Court may extend the time prescribed by its order to perform any act.
7.
In addition, the Appellant has reviewed this Court's online docket and discovered that the complete record in decisions appealed from in Bankruptcy Case No. 8:05-
bk-29501-PMG and Adversary Case No. 8:06-ap-00185-PMG has not been transmitted to this Court. 8.
Furthermore, although the Notice of Appeal and the Appeal Cover Sheet state that the Appellant is appealing the Entry of Default by the Clerk and the Default Final Judgment entered on April 22,2008 in Adversary Case No. 8:06-ap-00185-PMG and the Order Denying Discharge of Debtor entered on April 23,2008 in Banhptcy Case No. 8:05-bk-29501-PMG and all underlying orders entered in such actions, the clerk of the Bankruptcy Court failed to even transmit the erroneously entered Order Denying Discharge of Debtor to the clerk of this Court.
9.
Due process requires a complete record on appeal. See, e.g., Thomas v. State, 828 So.2d 456,457 (Fla. 4th DCA 2002) and Beruhe v. State, 771 So.2d 1263 (Fla. 2d DCA 2000).
10.
"For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Buldwin v.
Hule, 1 Wall. 223,233, 17 L.Ed. 53 1. See Windsor v. McVeigh, 93 U.S. 274,23 L.Ed. 914; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct 841,42 L.Ed. 215; Grunnis v.
Oredean, 234 U.S. 385,34 S.Ct. 779,58 L.Ed. 1363. It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545,552,85 S.Ct. 1187, 1191, 14 L.Ed.2d 62." fientes v. Shevin, 92 S. Ct. 1983, 1994 (1972). (Emphasis added).
11.
As the order purportedly entered by Judge Lazzara on September 3,2008, notice of which was mailed by the clerk of this Court to the Appellant on or after September 4, 2008, did not allow a meaningful time in which the Appellant could respond and file his brief, such order should be vacated as it violates the Appellant's fundamental right to due process.
12.
In addition, as the record transmitted to this Court by the clerk of the Bankruptcy Court is incomplete, the order purportedly entered by Judge Lazzara on September 3, 2008, should be vacated to allow a reasonable period of time for the Appellant to request and for the clerk of the Bankruptcy Court to transmit an amended record to this Court as due process requires a complete record on appeal.
13.
Violation of a right made specific by statutes, rules or settled interpretations of them is a violation of 18 U.S.C. 5 242 which provides criminal penalties for a deprivation of rights under color of law. U S v. Lanier, 520 U.S. 259,267 (1997).
14.
The Appellant will diligently request the clerk of the Bankruptcy Court to transmit an amended record to this Court and respectfully requests an enlargement of time in good faith and will suffer prejudice if it is not granted.
15.
The Appellees will not suffer any prejudice from a brief enlargement of time in which to allow the clerk of the Bankruptcy Court to transmit an amended record to this Court and a brief enlargement of time after which to allow the Appellant to file his brief.
WHEREFORE, the Appellant respectfully requests this Court to vacate the order
purportedly entered bv Judge i ,a77ara on September 3, 2008 requir~ngthe filing of his appellate bricf on Septenlber 8,2008 and tt) enter an order granting a reasotlabte er~largemcnlof'llmc to for the Appellant to request the clerk of the Bankruptcy Court lo trzu~srnilan amended record to this Court, for such record to be lrarlsrnitte~ito this Court. and
in which the Appellant may file his brief after such amended record has been :nransmittctllo this Court
PROOF OF SERVICE I tleclare under penalty of perjury that 1 have served ii true and ccmect copy of this nottcc via U.S. Mail to Stephen I,. Meiriinger, Esquire, attorney fox the Bankruptcy P rustee, :ir
707 North Franklin Street, Suite 850; 'I'mpa, FL 33602: lo Donald 13 Kirk, Esquire, of
I'o~LerWhite Boggs Barker, P.A., colmsel for 'l'imothy W. Weber, at P.0. Box 1438: 'Tampa, FL, 33601; and to Timothy W. Weber, Esquire, pro se of Hal:taglia, Ross, Dkus & Wein. PA., at 1'. 0. [lox 41 100; St Petcrsbury, FL 33743 on this
.;(, i,
,j.__. L-,
day of September,
.
Mark A. Adarns, pro se 41 29 Bdington Dr. Valrico, FL. 33596 I'elephone: 813-643-441 2
......-....
Exhibit A
Case: 8 : 0 8 - c v - 0 1 5 7 0 - ~ ~ ~
Mark A. Adam8 4129 Ballington Dr. Valrico, FL 33594
MIME-Versi0n:l.O Prom:[email protected] To:[email protected] Message-Id:[email protected]> BCC: Subject:Activity in Calle 8:08-cv-01570-RAL Adams v. Corporate sports Marketing Group, Inc., et a1 Order Content-Type: text/plain***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronioally, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.'U.S. Dietrict Court Middle District of Florida Notice of Electronic Filing The following transaction was entered on 9/3/2008 9:05 AM EDT and filed on 9/3/2008 case Name: Adams v. Corporate Sports Marketing Group. Inc., et a1 case Number: 8:08-cv-1970 https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.p1?217240 Filer: Document Number: 6 (No document attached) Docket Text: ENDORSED ORDER that Appellant, proceeding pro se, has failed to file his initial brief within 15 days of the entry of the appeal on this Court's docket as required by Federal Rule of Bankruptcy Procedure 8009lal (1). Accordingly, Appellant shall file his initial brief on or before September 8. 2008, failing which this appeal will be dismissed without further notice. Signed by Judge Richard A. Lazzara on 9/3/2008. (DM01 8:08-CV-1570 Notice has been electronically mailed to: Timothy W. Weher [email protected], [email protected] Donald R. Kirk [email protected], [email protected]. [email protected] 8:08-CV-1570 Notice has been delivered by other means to: Mark A. Adams 4129 Ballington Dr. Valrico, FL 33594
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