Franz Wakefield v. Apple, Inc., et al

Filing 1

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL AND PROSE APPELLANT. The schedule is set as follows: Transcript ordered by 08/16/2010. Transcript due 09/13/2010. Appellant Franz A. Wakefield opening brief due 10/25/2010. Appellee Apple, Inc., Appellee Steve Jobs and Appellee Sarah Jessica Parker answering brief due 11/24/2010. Appellant's optional reply brief is due 14 days after service of the answering brief. [7407794] (GR)

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Office of the Clerk
After Opening a Case – Pro Se Appellants
(December 2009)
Court Address
Mailing Address for
U.S. Postal Service

Mailing Address for
Overnight Delivery
(FedEx, UPS, etc.)

Street Address

Office of the Clerk
James R. Browning
Courthouse
U.S. Court of Appeals
P.O. Box 193939
San Francisco, CA
94119-3939

Office of the Clerk
James R. Browning
Courthouse
U.S. Court of Appeals
95 Seventh Street
San Francisco, CA
94103-1526

95 Seventh Street
San Francisco, CA
94103

Before you prepare your case, please read all information carefully. Keep the
following points in mind:
•

Your appeal has been assigned a Court of Appeals case number. You must
include this number on all correspondence and filings you send to this Court
and to opposing counsel.

•

You must keep a copy for your personal records of all documents you send
to this Court.

•

Your documents must be legibly typed or written. Do not use tissue paper.
If the Clerk cannot read the documents when they arrive, they will not be
processed.

•

If you move or your mailing address changes, you must notify this Court in
writing immediately. If you do not, you could miss important papers from
this Court notifying you of deadlines or decisions. Missing a filing deadline
may cause your case to be dismissed without further notice.

Special note concerning Electronic Case Filing
As a pro se appellant, you are not required to file documents electronically using
the Ninth Circuit’s Appellate ECF (Electronic Case Files) system. However, if you
are not currently incarcerated and if you have regular access to a reliable internet
connection as well as a computer that meets the hardware and software
requirements, you may register for Appellate ECF. You will find information
about the technical requirements for electronic filing on the Court’s website,
www.ca9.uscourts.gov under Electronic Filing – ECF. You must register as an
electronic filer before you will be able to file documents electronically.
If you decide to register and to file documents electronically, you are subject to
different rules than outlined in this packet. These rules are contained in the Court’s
Circuit Rules, which are available on the Court’s website www.ca9.uscourts.gov
under Rules.
Your Appeal in the Ninth Circuit – A Quick Overview

’

Case number. After your appeal is filed, a case number will be assigned.
You must include this number on anything you send to the Court. With your
case number, you’ll also receive:

’
’

Sample Certificate of Service. You must include a certificate of
service with each document you file with this Court in order to show
that you sent a copy of the document to the opposing attorney.

’

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Time Schedule Order. This important order tells you when certain
documents, such as briefs, are due.

Informal Brief Form. If you use this form, you are not required to
comply with the technical requirements for Ninth Circuit briefs. Note
that there is a separate version of the informal brief form for
immigration cases.

Change of address. You must notify the Court in writing of any change of
address. 9th Cir. R. 46-3. If you choose to register and file electronically,
you must change your address via PACER at:
https://pacer.psc.uscourts.gov/psco/cgi-bin/cmecf/ea-login.pl

After Opening a Case – Pro Se Appeals

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Filing fee. You must pay your $455.00 filing fee in the originating court
(for example, the district court), or ask that the fee be waived (called
“proceeding in forma pauperis”). Instructions for filing a motion to proceed
in forma pauperis are included in the “General Information” section of this
document. If your motion to proceed in forma pauperis is denied and you do
not pay the fees, your case will be dismissed.

’

Opening brief. You must file your opening brief by the date stated on the
time schedule order.

’

Reply brief. If you want to file a reply to your opponent’s brief, you must
do that within 14 days of the date your opponent served you with the brief.

’

Habeas cases. If you are an appellant in an appeal from an action filed
pursuant to 28 U.S.C. § 2254 or § 2255, you must first obtain a certificate of
appealability regarding any issues you want to raise in your brief. If the
district court has denied a certificate of appealability, you must request a
certificate from this Court. 9th Cir. R. 22-1. This is explained further in the
“General Information” section of this document.

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Completion of briefing. Once all the briefs are filed, the case will be
considered by a panel of three judges. Unless one or more of the judges
requests that oral argument be heard, your case will be decided based on the
information included in the briefs and the record. Fed. R. App. P. 34(a). If
the judges decide that oral argument would be beneficial to the Court, you
will receive notice that your case has been put on a hearing calendar.

’

Decision before briefing is complete. In some cases, the judges may
decide a case before the completion of briefing, but you will first be given an
opportunity to tell the Court why the case should not be summarily decided.
9th Cir. R. 3-6.

’

Final decision. When the judges decide your case, you will receive a
memorandum disposition or order.

After Opening a Case – Pro Se Appeals

Page 3

General Information for Pro Se Appellants
1.

THE COURT OF APPEALS

The Court of Appeals reviews final decisions of the U.S. District Court, U.S. Tax
Court, U.S. Bankruptcy Court, the Bankruptcy Appellate Panel, and certain federal
agencies. The Court looks at the originating court record as well as the briefs of
the parties to see if there are any constitutional, legal, or factual mistakes. No new
evidence or testimony can be presented in this Court.
2.

THE FEDERAL RULES

You must carefully follow the Federal Rules of Appellate Procedure (Fed. R. App.
P.) and the Ninth Circuit Rules (9th Cir. R.). The Federal Rules and the Ninth
Circuit Rules are available on the Court’s website, www.ca9.uscourts.gov under
Rules. If you would like a written copy of the Ninth Circuit Rules sent to you free
of charge, please send a written request with a return mailing label to the Clerk’s
office.
3.

PAYMENT OF FEES

The docketing and filing fees for an appeal are paid in the originating court when
the notice of appeal is filed.
If you cannot afford to pay the fees, you may file a motion to proceed without
payment of fees, called a motion to proceed in forma pauperis. A financial
affidavit, including a statement by you swearing under penalty of perjury that you
do not have enough money or other assets to pay the fees, must be included with
your motion. The financial affidavit may be found at Form 4, Federal Rules of
Appellate Procedure, available on the Court’s website, www.ca9.uscourts.gov
under FAQs, Forms and Instructions.
If you do not pay your filing fees or file a motion to proceed in forma pauperis,
your case will be dismissed. 9th Cir. R. 42-1.
•

The motion to proceed in forma pauperis may be denied if the Court
determines that your appeal is without legal or factual merit. If the motion is

After Opening a Case – Pro Se Appeals

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denied, you must pay the fees or your case will be dismissed. Fed. R. App.
P. 24.
•

If your motion to proceed in forma pauperis is granted, you do not need to
pay the filing fees, unless you are a prisoner in a civil (non-habeas corpus)
appeal, in which case you will be required to pay the entire $455.00 filing
fee when funds exist in your prison account. 28 U.S.C. § 1915(b). If you
are incarcerated, the Court will notify you of your obligations under this
statute and will require you to complete and return an authorization form to
allow prison officials to deduct the funds from your account on a monthly
basis. In addition, all litigants proceeding in forma pauperis still have to pay
for other expenses of their appeal, including copying, mailing, and costs you
may have to pay your opponent if you lose the appeal. Fed. R. App. P. 39.

•

If you were permitted to proceed in forma pauperis in the district court and
that status has not been revoked, you need not file a motion in this Court.
Fed. R. App. P. 24(a). You will still be obligated to pay the fees under 28
U.S.C. § 1915(b) in civil appeals if you are incarcerated.

4.

CERTIFICATE OF APPEALABILITY

In all appeals from proceedings filed pursuant to 28 U.S.C. § 2254 or § 2255, the
appellant must obtain a certificate of appealability (COA) in order to seek review
in the Court of Appeals. Fed. R. App. P. 22(b). If the district court denies a COA
as to all issues, you must request a COA from the Court of Appeals. 9th Cir. R.
22-1. A timely notice of appeal will be considered as a request for a certificate of
appealability in this Court.
5.

TRANSCRIPT DESIGNATION AND ORDERING FORM

Whether or not you are incarcerated, if you want to quote matters that were
discussed during district court hearings to support what you tell the Court in your
brief, you must order a transcript of the hearing and pay the court reporter to
prepare the transcript (or file a motion for transcripts at government expense). You
must fill out the transcript designation form and include the date of the hearing and
the name of the reporter who reported the hearing. A copy of the designation must
be sent to the reporter and to the district court, and must be served on opposing
After Opening a Case – Pro Se Appeals

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counsel. Forms are available from the district court clerk. You are not required to
designate written pleadings or orders that were filed in the originating court unless
you are appealing an order issued by the Bankruptcy Appellate Panel or a district
court reviewing a bankruptcy court order.
6.

TRANSCRIPTS AT GOVERNMENT EXPENSE

Having in forma pauperis status in civil appeals does not automatically entitle you
to transcripts at government expense, unless you are appealing from the denial of a
petition filed pursuant to 28 U.S.C. § 2254 or § 2241. You must first file a motion
for transcripts in the district court. If that motion is denied, you can file the same
motion in the Ninth Circuit. 28 U.S.C. § 753(f).
You may request transcripts at government expense only for hearings conducted in
the district court in the proceeding that generated your appeal; the Court will not
authorize payment for production of transcripts of hearings that were held in other
courts or other proceedings.
7.

APPOINTMENT OF COUNSEL

In direct criminal (non-habeas) appeals, if you have in forma pauperis status or can
show that you are indigent, you are entitled to appointed counsel so long as you
ask that counsel be appointed by filing a “Motion for Appointment of Counsel.”
Remember to include a Certificate of Service with the motion stating that you
served counsel for the opposing party with a copy of the motion.
The Court appoints an attorney (or requests the services of a volunteer attorney) in
a very limited number of civil cases. To request that the Court appoint an attorney
for you, you should file a motion for the appointment of counsel stating the reasons
why you need an attorney and why you cannot afford an attorney.
8.

BRIEFS

Your brief is the written argument of your case. You will file the first brief, called
the Opening Brief. The other side is given a chance to file a brief answering your
arguments in an Answering Brief. You will have an opportunity to respond to your
opponent’s brief in a Reply Brief.
After Opening a Case – Pro Se Appeals

6

Page 6

The time schedule order tells you when the Opening Brief is due. The Court will
dismiss your case if you do not file your brief when it is due. Your briefs are
considered filed as of the date you mail them to the Court. Fed. R. App. P.
25(a)(2)(B). (This is not true for any other filing with the Court, unless you are
incarcerated or in detention. Fed. R. App. P. 25(c).) Note that briefing in certain
appeals may be expedited, giving very short deadlines to both parties. 9th Cir. R.
3-3 (appeals from the denial of preliminary injunctive relief).
In general, briefs should include:
1.
2.
3.
4.
5.
6.

7.
8.

Your Ninth Circuit case number.
A statement of the facts of your case.
What the originating court decided.
The issues in your appeal.
The legal arguments you wish to present.
A statement of what you want this Court to do – reverse or modify the
originating court decision, or remand the case back to the originating
court – and why.
Your signature. All briefs must be signed by each pro se appellant.
Fed. R. App. P. 32(d).
A Certificate of Service.

Fed. R. App. P. 28 and 32 and 9th Cir. R. 28-1, 28-2, 28-4, 32-1, 32-3 and 32-5
contain the exact requirements for the content and form of a brief.
Because you are appearing without the help of an attorney, you may file the
informal brief form included in this package. Using this form means that your
opening and reply briefs need not comply with the technical requirements of the
Rules. 9th Cir. R. 28-1(c) & 32-5. You may add additional pages to the informal
brief form, up to a total of 40 double-spaced pages. If you choose not to use the
informal brief form, your briefs must meet all of the requirements of the federal
rules, and must include a Certificate of Compliance found on the Court’s website,
www.ca9.uscourts.gov, under FAQs, Forms and Instructions. If it does not, we
may return it to you for correction, which will delay the decision in your case.

After Opening a Case – Pro Se Appeals

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Page 7

File the original and 7 copies of your briefs with the Court. 9th Cir. R. 31-1. You
must also send 2 copies of your brief to counsel for each opposing party.
If you choose to register and submit your brief electronically, do not send any
paper copies of the brief to the Court until you are ordered by the Clerk to do so.
9th Cir. R. 31-1. You must also send 2 copies of your brief to any exempt or
un-registered opposing counsel.
9.

EXTENSIONS OF TIME TO FILE A BRIEF

If you need an extension of time in which to file your brief, you may request one
extension of no more than 14 days by telephone. The telephone numbers for
requesting extensions are:
Appeals originating from the Central and
Southern Districts of California

[phone]

Appeals originating from Alaska, Idaho,
Montana, Oregon and the Eastern and
Western Districts of Washington

[phone]

Appeals originating from all other districts

[phone]

Once you receive a telephonic extension of time, no further extension of time is
available absent extraordinary circumstances. You must give the other party
notice by telephone that you are requesting an extension before you call the Court.
9th Cir. R. 31-2.2(a).
If you need more than a 14-day extension, or have already been granted one or
more extensions to file the brief, you must file a written motion for extension of
time in which to file your brief. This motion must be filed at least SEVEN
calendar days before the due date for your brief. Your motion must meet the
requirements of 9th Cir. R. 31-2.2(b).

After Opening a Case – Pro Se Appeals

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10.

FILING MOTIONS

Any motions filed while your appeal is pending must clearly identify the relief you
seek and the legal grounds for relief. You must file an original motion with the
Court and serve one copy of the motion on each opposing counsel. 9th Cir. R.
27-1. A Certificate of Service must be attached to the original and to each copy.
If you are requesting emergency relief (requesting action by this Court within 21
days), you must first call the Motions Unit of the Court at [phone]. The
attorney on duty will help you figure out the best way to get your motion filed.
If you want to file a motion for reconsideration or clarification of an order, you
must do so within 14 days of the order’s filing date (or 45 days when it is a civil
case and there is a federal participant). 9th Cir. R. 27-10.
11.

PETITION FOR REHEARING

If your case is decided by a memorandum disposition and you think the Court’s
final decision on the merits of your case was wrong, you may file a petition for
rehearing in the Court within 14 days of entry of judgment (or 45 days when it
is a civil case and there is a federal participant). Fed. R. App. P. 35 & 40; 9th
Cir. R. 35-1 & 40-1. If you filed an informal opening brief on the form provided
with this packet, your petition for rehearing need not comply with the technical
form requirements of Fed. R. App. P. 32. 9th Cir. R. 32-5 & 40-1. Do not present
any new facts or legal arguments. Instead, explain how the Court may have
overlooked arguments or misunderstood the facts of your case.
After the Court either denies your petition for rehearing or issues a new judgment
upon rehearing in your case, you may file a petition for a writ of certiorari in the
United States Supreme Court. Consult the Supreme Court’s Rules before filing
your petition for a writ of certiorari. Remember that you must have a legal basis to
support your belief that the Court’s final decision was incorrect; it is not enough to
simply disagree with the outcome.
If you do not file a petition for rehearing in this Court, you may still file a petition
for a writ of certiorari directly in the United States Supreme Court.

After Opening a Case – Pro Se Appeals

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Page 9

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

____________________________
Appellant,

9th Cir. Case No. _____________________
Originating Court Case No. ____________

vs.
_____________________________
Appellee(s).

APPELLANT'S INFORMAL BRIEF
(attach additional sheets as necessary)
1.

Jurisdiction
a.

Timeliness of Appeal:
(i)

Date of entry of judgment or order
of originating court: __________________________________

(ii)

Date of service of any motion made after judgment (other than
for fees and costs): ______________________________

(iii)

Date of entry of order deciding motion: ___________________

(iv)

Date notice of appeal filed: _____________________________

(v)

For prisoners, date you gave notice of appeal to prison
authorities: ____________________________________

9th Cir. Case No. ________________
2.

What are the facts of your case?

Page 2

9th Cir. Case No. ________________

Page 3

3.

What did you ask the originating court to do (for example, award damages,
give injunctive relief, etc.)?

4.

State the claim or claims you raised at the originating court.

5.

What issues are you raising on appeal? What do you think the originating
court did wrong?

9th Cir. Case No. ________________
6.

Did you present all issues listed in #5 to the originating court?
_______
Yes/No

7.

If not, why not?

What law supports these issues on appeal?
(You may, but need not, refer to cases and statutes.)

Page 4

9th Cir. Case No. ________________

Page 5

8.

Do you have any other cases pending in this court?
If so, give the name and docket number of each case.

9.

Have you filed any previous cases which have been decided by this court?
If so, give the name and docket number of each case.

10.

For prisoners, did you exhaust all administrative remedies for each claim
prior to filing your complaint in the district court?

____________________________
Name
____________________________
____________________________
____________________________
Address
____________________
Date

__________________________
Signature

CERTIFICATE OF SERVICE

Case Name: ____________________ v. __________________________
9th Cir. Case No.:

_____________

IMPORTANT: You must send a copy of ALL documents filed with the Court and
any attachments to counsel for ALL parties in this case. You must attach a copy of
the certificate of service to each of the copies and the original you file with the
Court. Please fill in the title of the document you are filing. Please list the names
and addresses of the parties who were sent a copy of your document and the dates
on which they were served. Be sure to sign the statement below.

I certify that a copy of the _____________________________________________
(title of document you are filing)
and any attachments was served, either in person or by mail, on the persons listed
below.

_________________________
Signature
Notary NOT required
Name

Address

Date Served