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08-16174-CC
__________________________________________________________________
JAMES B. STEGEMAN,
Plaintiff/Appellant
v.
1:08-cv-01971-WSD
____________________________________________
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
BRIEF BACKGROUND
December 26, 2008; in which the District Court Order stated the Appeal is not
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
would not be able to properly represent himself and his cause before this
2009.
much better with this Court; Appellant’s experience with Courts as a disabled pro
1
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.
2
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.
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
Recuse Judges Hull, Wilson and Marcus filed February 18, 2009. Georgia Power
Appellees filed Objective Responses February 23, 2009 to which Appellant filed
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
2
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.
3
It is Appellant’s understanding that Denial of Motion to Recuse is an appealable
Ruling, just as most Rulings on Motions are.
3
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
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
4
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.
5
Two of the Georgia Power Appellees are experienced attorneys and all Appellees
are represented by attorneys
4
until after March 30th.
Appellant was never sent the Notice referenced in 11th Cir. R. 42-1(b) 6:
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
7
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.
8
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
5
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
Appellant filed his Brief and Record excerpts April 13, 2009 per his April 6,
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
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
6
“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
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]:
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
Appellant’s Brief and Records Excerpts within the time the advised by the Clerk,
9
which listed McDonald as an Appellant and was signed by her
10
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,
11
7
which was seven days. Appellant has shown a good-faith effort to have his Appeal
6406 (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).”
8
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
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
9
In Martin, et., al., v. Handy-Andy Community Stores, Inc., of Texas, et., al.,
CONCLUSION
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
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
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
CERTIFICATE OF SERVICE
11
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:
_______________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(404) 300-9782
12