Gary Black, et al v. Google, Inc.

Filing 1

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL AND PRO SE APPELLANTS. SEND MQ: No. The schedule is set as follows: Appellant Holli Beam-Black and Appellant Gary Black opening brief due 12/20/2010. Appellee Google, Inc. answering brief due 01/18/2011. Appellant's optional reply brief is due 14 days after service of the answering brief. [7470367] (RT)

G a r y Black, et al v. Google, Inc.

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Office of the Clerk A f te r Opening a Case ­ Pro Se Appellants (D ecem b er 2009) C o u rt Address M a ilin g Address for U.S. Postal Service O f fic e of the Clerk Jam es R. Browning C o u r th o u s e U .S . Court of Appeals P .O . Box 193939 S an Francisco, CA 9 4 1 1 9 -3 9 3 9 M a ilin g Address for O vern ig h t Delivery (F ed E x, UPS, etc.) O f fic e of the Clerk Jam es R. Browning C o u r th o u s e U .S . Court of Appeals 9 5 Seventh Street S an Francisco, CA 9 4 1 0 3 -1 5 2 6 S treet Address

9 5 Seventh Street S an Francisco, CA 94103

B efo re you prepare your case, please read all information carefully. Keep the fo llo w in g points in mind: · Y o u r appeal has been assigned a Court of Appeals case number. You must in c lu d e this number on all correspondence and filings you send to this Court an d to opposing counsel. Y o u must keep a copy for your personal records of all documents you send to this Court. Y o u r 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 p ro cessed . If you move or your mailing address changes, you must notify this Court in w ritin g immediately. If you do not, you could miss important papers from th is Court notifying you of deadlines or decisions. Missing a filing deadline m a y cause your case to be dismissed without further notice.

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Dockets.Justia.com

S p ecia l note concerning Electronic Case Filing A s a pro se appellant, you are not required to file documents electronically using th e Ninth Circuit's Appellate ECF (Electronic Case Files) system. However, if you a re not currently incarcerated and if you have regular access to a reliable internet c o n n e ctio n as well as a computer that meets the hardware and software req u irem en ts, you may register for Appellate ECF. You will find information a b o u t the technical requirements for electronic filing on the Court's website, w w w .ca9 .u sco u rts.g o v under Electronic Filing ­ ECF. You must register as an electro n ic filer before you will be able to file documents electronically. If you decide to register and to file documents electronically, you are subject to d iffe re n t rules than outlined in this packet. These rules are contained in the Court's C ircu it Rules, which are available on the Court's website w w w .ca9 .u sco u rts.g o v u n d e r Rules. Y o u r Appeal in the Ninth Circuit ­ A Quick Overview

C a se 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 c as e number, you'll also receive:

T im e Schedule Order. This important order tells you when certain d o c u m e n ts , such as briefs, are due. S a m p le Certificate of Service. You must include a certificate of serv ice with each document you file with this Court in order to show th at you sent a copy of the document to the opposing attorney. I n f o r m a l Brief Form. If you use this form, you are not required to co m p ly with the technical requirements for Ninth Circuit briefs. Note th a t there is a separate version of the informal brief form for im m ig ra tio n cases.

C h a n g e of address. You must notify the Court in writing of any change of ad d ress. 9th Cir. R. 46-3. If you choose to register and file electronically, yo u must change your address via PACER at: https://pacer.psc.uscourts.gov/psco/cgi-bin/cmecf/ea-login.pl
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F ilin g fee. You must pay your $455.00 filing fee in the originating court ( fo r example, the district court), or ask that the fee be waived (called "p r o c e e d in g in forma pauperis"). Instructions for filing a motion to proceed in forma pauperis are included in the "General Information" section of this d o cu m en t. If your motion to proceed in forma pauperis is denied and you do n o t pay the fees, your case will be dismissed. O p en in g brief. You must file your opening brief by the date stated on the tim e schedule order. R ep ly brief. If you want to file a reply to your opponent's brief, you must d o that within 14 days of the date your opponent served you with the brief. H a b ea s cases. If you are an appellant in an appeal from an action filed p u r su a n t to 28 U.S.C. § 2254 or § 2255, you must first obtain a certificate of a p p e a la b ility regarding any issues you want to raise in your brief. If the d istrict 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 "G en eral Information" section of this document. C o m p letio n of briefing. Once all the briefs are filed, the case will be c o n s id e r ed by a panel of three judges. Unless one or more of the judges req u ests that oral argument be heard, your case will be decided based on the in f o r m a tio n included in the briefs and the record. Fed. R. App. P. 34(a). If th e judges decide that oral argument would be beneficial to the Court, you w ill receive notice that your case has been put on a hearing calendar. D ecisio n before briefing is complete. In some cases, the judges may d e c id e a case before the completion of briefing, but you will first be given an o p p o rtu n ity to tell the Court why the case should not be summarily decided. 9th Cir. R. 3-6. F in a l decision. When the judges decide your case, you will receive a m e m o r a n d u m disposition or order.

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G e n e ra l Information for Pro Se Appellants 1. T H E COURT OF APPEALS

T h e Court of Appeals reviews final decisions of the U.S. District Court, U.S. Tax C o u r t, U.S. Bankruptcy Court, the Bankruptcy Appellate Panel, and certain federal ag en cies. The Court looks at the originating court record as well as the briefs of th e parties to see if there are any constitutional, legal, or factual mistakes. No new ev id en ce or testimony can be presented in this Court. 2. T H E FEDERAL RULES

Y o u 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 C ircu it Rules are available on the Court's website, www.ca9.uscourts.gov under R u les. If you would like a written copy of the Ninth Circuit Rules sent to you free o f charge, please send a written request with a return mailing label to the Clerk's o f f ic e . 3. P A Y M E N T OF FEES

T h e docketing and filing fees for an appeal are paid in the originating court when th e notice of appeal is filed. If you cannot afford to pay the fees, you may file a motion to proceed without p aym en t of fees, called a motion to proceed in forma pauperis. A financial affid av it, including a statement by you swearing under penalty of perjury that you d o not have enough money or other assets to pay the fees, must be included with yo u r motion. The financial affidavit may be found at Form 4, Federal Rules of A p p ellate Procedure, available on the Court's website, www.ca9.uscourts.gov under FAQs, Forms and Instructions. I f 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. · T h e motion to proceed in forma pauperis may be denied if the Court d eterm in es that your appeal is without legal or factual merit. If the motion is
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d en ied , 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 p ay the filing fees, unless you are a prisoner in a civil (non-habeas corpus) ap p eal, 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 statu te and will require you to complete and return an authorization form to allo w prison officials to deduct the funds from your account on a monthly b a s is . In addition, all litigants proceeding in forma pauperis still have to pay fo r other expenses of their appeal, including copying, mailing, and costs you m ay 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 th at 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. CERTIFICATE OF APPEALABILITY

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4.

In all appeals from proceedings filed pursuant to 28 U.S.C. § 2254 or § 2255, the a p p e lla n t 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. 2 2 -1 . A timely notice of appeal will be considered as a request for a certificate of ap p ealab ility in this Court. 5. TRANSCRIPT DESIGNATION AND ORDERING FORM

W h e th e r or not you are incarcerated, if you want to quote matters that were d iscu ssed during district court hearings to support what you tell the Court in your b rief, you must order a transcript of the hearing and pay the court reporter to p rep are the transcript (or file a motion for transcripts at government expense). You m u st fill out the transcript designation form and include the date of the hearing and th e name of the reporter who reported the hearing. A copy of the designation must b e sent to the reporter and to the district court, and must be served on opposing
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co u n sel. Forms are available from the district court clerk. You are not required to d esig n ate written pleadings or orders that were filed in the originating court unless y o u are appealing an order issued by the Bankruptcy Appellate Panel or a district c o u r t reviewing a bankruptcy court order. 6. TRANSCRIPTS AT GOVERNMENT EXPENSE

H av in g 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 p etitio n filed pursuant to 28 U.S.C. § 2254 or § 2241. You must first file a motion fo r transcripts in the district court. If that motion is denied, you can file the same m o tio n in the Ninth Circuit. 28 U.S.C. § 753(f). Y o u may request transcripts at government expense only for hearings conducted in th e district court in the proceeding that generated your appeal; the Court will not a u th o r iz e payment for production of transcripts of hearings that were held in other co u rts or other proceedings. 7. A P P O IN T M E N T OF COUNSEL

I n direct criminal (non-habeas) appeals, if you have in forma pauperis status or can sh o w that you are indigent, you are entitled to appointed counsel so long as you a sk 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 serv ed counsel for the opposing party with a copy of the motion. T h e 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 fo r you, you should file a motion for the appointment of counsel stating the reasons w h y you need an attorney and why you cannot afford an attorney. 8. B R IE F S

Y o u r brief is the written argument of your case. You will file the first brief, called th e Opening Brief. The other side is given a chance to file a brief answering your arg u m en ts in an Answering Brief. You will have an opportunity to respond to your o p p o n e n t's brief in a Reply Brief.
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T h e time schedule order tells you when the Opening Brief is due. The Court will d is m is s your case if you do not file your brief when it is due. Your briefs are co n sid ered filed as of the date you mail them to the Court. Fed. R. App. P. 2 5 ( a) (2 ) ( B ) . (This is not true for any other filing with the Court, unless you are in carcerated or in detention. Fed. R. App. P. 25(c).) Note that briefing in certain ap p eals may be expedited, giving very short deadlines to both parties. 9th Cir. R. 3 - 3 (appeals from the denial of preliminary injunctive relief). I n general, briefs should include: 1. 2. 3. 4. 5. 6. Y o u r Ninth Circuit case number. A statement of the facts of your case. W h at the originating court decided. T h e issues in your appeal. T h e legal arguments you wish to present. A statement of what you want this Court to do ­ reverse or modify the o rig in atin g court decision, or remand the case back to the originating co u rt ­ and why. Y o u r signature. All briefs must be signed by each pro se appellant. F e d . R. App. P. 32(d). A Certificate of Service.

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F e d . R. App. P. 28 and 32 and 9th Cir. R. 28-1, 28-2, 28-4, 32-1, 32-3 and 32-5 c o n ta in the exact requirements for the content and form of a brief. B ecau se you are appearing without the help of an attorney, you may file the in fo rm al brief form included in this package. Using this form means that your o p en in g and reply briefs need not comply with the technical requirements of the R u le s. 9th Cir. R. 28-1(c) & 32-5. You may add additional pages to the informal b rief form, up to a total of 40 double-spaced pages. If you choose not to use the in fo rm al brief form, your briefs must meet all of the requirements of the federal r u le s, and must include a Certificate of Compliance found on the Court's website, w w w .ca9 .u sco u rts.g o v , under FAQs, Forms and Instructions. If it does not, we m a y return it to you for correction, which will delay the decision in your case.

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F ile the original and 7 copies of your briefs with the Court. 9th Cir. R. 31-1. You m u st 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 p ap er 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 u n -reg istered opposing counsel. 9. E X T E N S IO N S OF TIME TO FILE A BRIEF

If you need an extension of time in which to file your brief, you may request one ex ten sio n of no more than 14 days by telephone. The telephone numbers for r eq u e stin g extensions are: A p p eals originating from the Central and Southern Districts of California A p p eals originating from Alaska, Idaho, M o n tan a, Oregon and the Eastern and Western Districts of Washington A p p eals originating from all other districts

(6 2 6 ) 229-7261

(2 0 6 ) 224-2210 (4 1 5 ) 355-7853

O n ce you receive a telephonic extension of time, no further extension of time is a v a ila b le absent extraordinary circumstances. You must give the other party n o tice 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 m o re extensions to file the brief, you must file a written motion for extension of tim e in which to file your brief. This motion must be filed at least SEVEN calen d ar days before the due date for your brief. Your motion must meet the r eq u ir em e n ts of 9th Cir. R. 31-2.2(b).

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10.

F IL IN G MOTIONS

A n y 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 C o u rt and serve one copy of the motion on each opposing counsel. 9th Cir. R. 2 7 -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 d ays), you must first call the Motions Unit of the Court at [phone]. The atto rn ey 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 m u st 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. P E T IT IO N FOR REHEARING

If your case is decided by a memorandum disposition and you think the Court's fin al decision on the merits of your case was wrong, you may file a petition for reh earin g 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 C ir . R. 35-1 & 40-1. If you filed an informal opening brief on the form provided w ith this packet, your petition for rehearing need not comply with the technical fo rm requirements of Fed. R. App. P. 32. 9th Cir. R. 32-5 & 40-1. Do not present an y new facts or legal arguments. Instead, explain how the Court may have o v e rlo o k e d arguments or misunderstood the facts of your case. A fter the Court either denies your petition for rehearing or issues a new judgment u p o n rehearing in your case, you may file a petition for a writ of certiorari in the U n ited States Supreme Court. Consult the Supreme Court's Rules before filing yo u r petition for a writ of certiorari. Remember that you must have a legal basis to su p p o rt your belief that the Court's final decision was incorrect; it is not enough to s im p ly disagree with the outcome. If you do not file a petition for rehearing in this Court, you may still file a petition fo r a writ of certiorari directly in the United States Supreme Court.

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UNITED STATES COURT OF APPEALS F O R THE NINTH CIRCUIT

____________________________ A p p e lla n t,

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

v s. _____________________________ A p p e lle e ( s ) .

A P P E L L A N T 'S INFORMAL BRIEF (attach additional sheets as necessary) 1. J u r is d ic tio n a. T im elin ess of Appeal: ( i) Date of entry of judgment or order o f originating court: __________________________________ Date of service of any motion made after judgment (other than for fees and costs): ______________________________ Date of entry of order deciding motion: ___________________ D ate notice of appeal filed: _____________________________ For prisoners, date you gave notice of appeal to prison authorities: ____________________________________

( ii)

( iii) ( iv ) (v )

9th Cir. Case No. ________________ 2. What are the facts of your case?

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9th Cir. Case No. ________________ 3.

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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. D id you present all issues listed in #5 to the originating court? _______ Y e s /N o If not, why not?

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7.

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

9th Cir. Case No. ________________ 8. Do you have any other cases pending in this court? If so, give the name and docket number of each case.

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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?

____________________________ N ame ____________________________ ____________________________ ____________________________ A d d ress ____________________ D a te

__________________________ S ig n a tu r e

CERTIFICATE OF SERVICE

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

IM P O R T A N T : You must send a copy of ALL documents filed with the Court and an y attachments to counsel for ALL parties in this case. You must attach a copy of th e certificate of service to each of the copies and the original you file with the C o u r t. Please fill in the title of the document you are filing. Please list the names a n d addresses of the parties who were sent a copy of your document and the dates o n which they were served. Be sure to sign the statement below.

I certify that a copy of the _____________________________________________ (title of document you are filing) a n d any attachments was served, either in person or by mail, on the persons listed b e lo w .

_________________________ S ig n a tu r e N o ta ry NOT required N ame A d d r es s D a te Served