How to Write a Motion for Leave to File a Transcript Order Form Out-of-Time

“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.”

• Cruz v. Berryhill, 347 F. Supp. 3d 1199 (USFLSD 2018); and
• Miller v. Berryhill, 8:17-cv-1470 (USFLMD 4/12/19)

“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."

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." Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1104 (Fla. 4th DCA) (citing North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla. 1962)), rev. denied sub nom. Hayslip v. Somero, 476 So.2d 674 (Fla. 1985). A default will be set aside upon a showing that excusable neglect led to the default, a meritorious defense exists for the cause, and due diligence was used to set aside the default. See Rosenblatt v. Rosenblatt, 528 So.2d 74 (Fla. 4th DCA 1988). Further, "where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits.

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. See Sunniland Bank v. Mosley, 659 So.2d 1184 (Fla. 4th DCA 1995); Clement v. Marcus, Stowell Beye, Inc., 516 So.2d 1137 (Fla. 4th DCA 1987); Gibraltar Serv. Corp. v. Lone and Assoc., 488 So.2d 582 (Fla. 4th DCA 1986); Chester, Blackburn Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980). Accordingly, we reverse and remand with directions to the trial court to vacate the default and the final judgment entered thereon.

Because a default was entered erroneously by the clerk at a time when Beztak had, in fact, served papers in the cause, there was no requirement that Beztak establish excusable neglect, a meritorious defense, or due diligence.

The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.

• At USCA11, you have a 14-Day Deadline*
  • see Rule 40-1 11^th Cir. R.

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