L | PLAINTIFF'S MOTION FOR LEAVE TO FILE HIS TRANSCRIPT ORDER FORM 'OUT-OF-TIME'

“In sum, the record establishes that the [State Agency] rendered timely “No Cause” determinations on [Appellant]’s Charges... As such, [Appellant] is administratively barred under section 760.11(7) of the Florida Statutes from pursuing his [state] claims here. [USFLMD] will grant the Motion as to Counts I-III of the Complaint and dismiss the [state] claims in their entirety.”

“NOTICE OF CERTIFICATE OF INTERESTED PERSONS (CIP) DEFICIENCY issued to Lauren C. Robertson for Allstate Insurance Company. You have failed to complete the Web-Based CIP on the Court's website. If you are an appellant or petitioner, pursuant to 11th Cir. Rules 26.1-5(c) and 42-1(b), this appeal will be dismissed without further notice upon the expiration of 14 days from the date of this notice unless you both remedy the default(s) AND file a motion to remedy the default(s).”

“(A) If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure — and does so within the time allowed by those rules — the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(vi) for relief under Rule 60 if the motion is filed within the time allowed for filing a motion under Rule 59.

”

“Appellant’s written order for a transcript or certification that no transcript will be ordered... must be filed... within 14 days after filing the notice of appeal or after entry of an order disposing of the last timely motion of a type specified in FRAP 4(a)(4).”

A. Decision on the Merits

“It is axiomatic that Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits.”

B. Equitable Tolling

“We clarify, first, that the question before us — whether Scarborough is time barred by § 2412(d)(1)(B) from gaining the fee award authorized by § 2412(d)(1)(A) — does not concern the federal courts' "subject-matter jurisdiction."... The issue is not whether, but when, §§ 2412(d)(1)(A) and (B) require a fee applicant to "allege that the position of the United States was not substantially justified." As we recently observed:”

“Courts, including this Court, ... have more than occasionally [mis]used the term `jurisdictional' to describe emphatic time prescriptions in [claim processing] rules.... Classifying time prescriptions, even rigid ones, under the heading `subject matter jurisdiction' can be confounding. Clarity would be facilitated if courts and litigants used the label `jurisdictional' not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority."”

“In short, § 2412(d)(1)(B) does not describe what "classes of cases," id., at 455, the CAVC is competent to adjudicate; instead, the section relates only to postjudgment proceedings auxiliary to cases already within that court's adjudicatory authority. Accordingly, as [Kontrick v. Ryan, 540 US 443 (2004)] indicates, the provision's 30-day deadline for fee applications and its application-content specifications are not properly typed "jurisdictional."”

“We hold that a curative amendment is permissible and that Scarborough's fee application, as amended, qualifies for consideration and determination on the merits.”

“In view of the fact that the filing of [a Notice of Appeal] is not jurisdictional, but is analogous to statutes of limitation which are subject to equitable considerations”

“The doctrine of equitable tolling abates the harsh operation of the statute of limitations under certain circumstances in which barring a plaintiff's potentially meritorious action would be unjust.”

C. Timeliness (ie, Transcript Order Form is Not ‘Out-of-Time’)

“We hold that the clerk's default was void ab initio because appellants served their answer and affirmative defenses before the clerk entered its default. Therefore, appellants were not required to raise the argument in the trial court that the default was void in order to preserve that point for appellate review... Accordingly, we reverse and remand with directions to the trial court to vacate the default and the final judgment entered thereon”