Yair Babayoff v. Hazlet Manor Associates ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 22-1187, 22-1222 & 22-1303
__________
YAIR ISREAL BABAYOFF,
Appellant
v.
HAZLET MANOR ASSOCIATES; HAZLET GARDEN GROUP LLC;
EXCELSIOR CARE GROUP
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3:21-cv-11571)
District Judge: Honorable Freda L. Wolfson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 20, 2022
Before: AMBRO*, KRAUSE, and SCIRICA, Circuit Judges
(Opinion filed: February 8, 2023)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
* Judge Ambro assumed senior status on February 6, 2023.
Yair Israel Babayoff, proceeding pro se, appeals from various orders of the
District Court. We will affirm the judgment of the District Court.
In September 2020, Babayoff filed a complaint in the Superior Court of New
Jersey, Monmouth County, against Hazlet Manor Associates (“Hazlet Manor”), Hazlet
Garden Group, LLC (“Hazlet Garden”), and Excelsior Care Group (“Excelsior”), alleging
employment-related claims pursuant to the New Jersey Wage and Hour Law and the Fair
Labor Standards Act. In May 2021, Defendants Hazlet Garden and Excelsior removed
the action to the District Court for the District of New Jersey. Dkt No. 1.2
Hazlet Garden and Excelsior (“Defendants”) thereafter filed a motion to dismiss
for failure to effectuate proper service. Dkt No. 2. Babayoff contacted the Court to
request that he be permitted to question a witness3 and extend the time for him to respond
to Defendants’ motion. On June 24, 2021, the District Court denied his request. Dkt No.
8. Babayoff thereafter requested that the Court order Franklin Rooks, Esq., to represent
him, which the Court denied on June 29, 2021. Dkt No. 9.
On December 3, 2021, the District Court entered an order granting Defendants
Hazlet Garden’s and Excelsior’s unopposed4 motion to dismiss without prejudice for
2
It appears that Hazlet Manor has not been served in this action and therefore is
not a party to this appeal.
3
In his request, Babayoff indicated his desire to question Chaim Ribiat regarding
service of the Complaint. In their motion to dismiss, Defendants included a certification
from Chaim Ribiat, which stated that he had never been served with the Summons and
Complaint. See Dkt No. 2-1.
4
The District Court extended the time for Babayoff to oppose the Defendants’
motion three times. See Dkt Nos. 8, 9, 11. Babayoff failed to properly file an opposition
2
insufficient service of process under Fed. R. Civ. P. 12(b)(5). Dkt No. 12. Babayoff
sent two letters to the Court, which were construed together as a motion for
reconsideration and a motion for recusal. Dkt Nos. 14 & 16. The Court denied
Babayoff’s request for recusal on December 20, 2021. Dkt No. 17.
Defendants opposed Babayoff’s motion for reconsideration. Babayoff responded
by requesting that the Court provide him additional time to reply to the Defendants’
response. On January 28, 2022, the District Court denied Babayoff’s request, noting that
Babayoff was previously granted an extension. Dkt No. 22. On January 31, 2022,
Babayoff filed a notice of appeal, Dkt No. 23, which opened C.A. No. 22-1187. On
February 3, 2022, Babayoff filed a second notice of appeal, Dkt No. 28, which opened
C.A. No. 22-1222. On February 16, 2022, the District Court denied Babayoff’s motion
for reconsideration and ordered the case to be closed. Dkt No. 31. On February 17,
2022, Babayoff filed a third notice of appeal, Dkt No. 35, which opened C.A. No. 22-
1303.
I.
We have jurisdiction pursuant to 28 U.S.C. § 1291.5 We exercise plenary review
over Rule 12(b)(5) dismissals, see Umbenhauer v. Woog, 969 F.2d 25, 28 (3d Cir. 1992),
brief.
Babayoff’s appeal at C.A. No. 22-1222 is dismissed for lack of jurisdiction. See
5
Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 24 F.4th 242, 254 (3d Cir.
2022). This Court has jurisdiction to consider the challenged order via the Babayoff’s
appeal at C.A. No. 22-1303. See Koppers Co., Inc. v. Aetna Cas. and Sur. Co., 158 F.3d
170, 173 n.2 (3d Cir. 1998). Notably, however, because Babayoff has not addressed the
District Court’s January 26, 2022 order in his opening brief, it is forfeited on appeal. See
3
and apply a clear error standard to any findings of fact, see Albra v. Advan, Inc., 490
F.3d 826, 829 (11th Cir. 2007). We review the denial of Babayoff’s motions for abuse of
discretion. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam)
(motion for reconsideration); Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per
curiam) (motion for recusal); Drippe v. Tobelinski, 604 F.3d 778, 783 (3d Cir. 2010)
(motion for extension of time).6
II.
We begin with our review of the District Court’s December 3, 2021 dismissal
order, Dkt No. 12, which granted the Defendants’ motion to dismiss under Federal Rule
of Civil Procedure 12(b)(5), and conclude that the District Court did not err in dismissing
the action for insufficient service of process.
As the District Court noted, a signed return of service generally creates a
rebuttable presumption that service was validly performed. Gottlieb v. Sandia Am.
Corp., 452 F.2d 510, 514 n.5 (3d Cir. 1971); Blair v. City of Worcester, 522 F.3d 105,
111 (1st Cir. 2008).7 A party may refute the presumption of valid service with sufficient
M.S. by & through Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir.
2020).
6
In his opening brief, Babayoff indicated his intent to appeal the following six
orders: (1) the District Court’s June 24, 2021 Order, Dkt No. 8; (2) the District Court’s
June 29, 2021 Order, Dkt No. 9; (3) the District Court’s December 3, 2021 Order, Dkt
No. 12; (4) the District Court’s December 20, 2021 Order, Dkt No. 17; (5) the District
Court’s January 28, 2022 Order, Dkt No. 22; and (6) the District Court’s February 16,
2022 Order, Dkt No. 31.
7
See also Gant v. Advanced Electrical, Inc., No. 16-1954, 2017 WL 3638762, at
*3 (D.N.J. Aug. 23, 2017); Hillside Golf, Inc. v. Gino Inn, Inc., 2010 WL 4056552, at *5
4
evidence that service was not proper. Blair, 522 F.3d at 111–12; see also 4B Charles
Alan Wright & Arthur R. Miller Federal Practice and Procedure § 1130 (3d ed.)
(“Although the return of service of the summons and the complaint is strong evidence of
the facts stated therein, it is not conclusive and may be controverted upon a showing that
the return is inaccurate.”). In such a case, the district court acts as a factfinder to resolve
the issue. See, e.g., Burda Media, Inc. v. Viertel, 417 F.3d 292, 302 (2nd Cir. 2005).
Ultimately, however, “[t]he party asserting the validity of service bears the burden of
proof on that issue.” Grand Entm’t Group v. Star Media Sales, 988 F.2d 476, 488 (3d
Cir. 1993).
Here, Babayoff submitted two affidavits of service; one for an individual
identified as David Gross (allegedly associated with Hazlet Manor) and one for an
individual identified as Chaim Ribiat (associated with Appellees), Dkt No. 1-3, at 24–25,
which created a presumption of valid service. Defendants, however, effectively rebutted
this presumption. First, Ribiat, certified that he was never served with the Summons and
Complaint. Dkt No. 2-1, at 5. Second, as correctly described by the District Court, the
affidavits of service were facially implausible. Specifically, the affidavits indicated that
both individuals were personally served, by the same person, in two different parts of the
state at the exact same time and that both individuals have the exact same
characteristics.8 While a party’s mere denial is generally insufficient to rebut the
(N.J. Super. Ct. App. Div. July 22, 2010).
8
The affidavits of service submitted by Babayoff provide the following
description of the person accepting service for both affidavits: “Sex: M Age: 36 Height:
5”6 [sic] Weight: 185 Skin Color: W Hair Color DKR BRN.” Dkt No. 1-3, at 24 & 25.
5
presumption of proper service, we conclude that the District Court did not abuse its
discretion in finding that the obvious implausibility of the affidavits of service, together
with Ribiat’s certified denial, is sufficient to demonstrate the lack of service. We so hold,
especially in light of Babayoff’s failure to properly oppose the Defendants’ motion. See
Blair, 522 F.3d at 112 (stating that, when a defendant effectively rebuts the presumption
of proper service, “the ultimate burden of proving proper service return[s] to the
plaintiffs”).
III.
Babayoff appeals the District Court’s denials of his requests for extensions of
time. Specifically, he appeals the denial of his request for additional time to oppose
Defendants’ motion to dismiss, Dkt No. 8, and the denial of his request for an extension
of time to file a reply brief in support of his motion for reconsideration of the Court’s
dismissal order, Dkt No. 22.
Regarding the extension to respond to Defendants’ motion to dismiss, we conclude
that the Court did not abuse its discretion in denying Babayoff’s request. Notably, in
denying Babayoff’s request to question Ribiat, the Court did in fact extend the time for
Babayoff to file an opposition and specifically noted that the question of an evidentiary
hearing would be considered after briefing was completed. Dkt No. 8. Moreover, the
Both affidavits additionally state that the complaint was served at 4:00 p.m. on February
10, 2021, in two different locations. Id.6
Court subsequently extended the deadline for Babayoff to oppose Defendants’ motion
two additional times. See Dkt Nos. 9 & 11.9
We similarly find no abuse of discretion in the District Court’s decision to deny
Babayoff’s request for an extension of time to file his reply brief to his motion for
reconsideration. While the Court denied Babayoff’s January 27, 2022 request for an
extension of time, the Court had granted his prior request, per its order dated January 26,
2022. Thus, we find no abuse of discretion is denying an additional extension here.
We will therefore affirm the District Court’s denial of Babayoff’s requests for
extensions of time.
IV.
Babayoff also appeals the District Court’s June 29, 2021 denial of his request for
appointment of counsel. Dkt No. 9. While Babayoff’s request is far from the model of
clarity, he appears to have requested that the Court appoint an individual named Franklin
Rooks, Esq., to represent him. While Babayoff claims that Mr. Rooks was his counsel,
Mr. Rooks never entered his appearance in this case, nor did he file the complaint in state
court; rather, Babayoff filed the complaint pro se. We find that the District Court did not
abuse its discretion in denying Babayoff’s request.10
9
To the extent Babayoff appeals the District Court’s denial of his request to
question Ribiat prior to his filing an opposition to the Defendants’ motion to dismiss, we
conclude that the District Court did not abuse its discretion in denying this discovery
request. Notably, the District Court indicated that the question of whether the Court
would schedule an evidentiary hearing would be considered after briefing on the motion
to dismiss was completed. Dkt No. at 8.
10
Notably, at the time of Babayoff’s request, he had not filed an in forma pauperis
application in this case. See 28 U.S.C. § 1915(e).
7
V.
Babayoff additionally appeals the District Court’s December 20, 2021 denial of
his motion for recusal. Dkt No. 17. We have reviewed the District Court’s analysis of
his motion and we agree that the motion is meritless. See In re Kensington Int’l Ltd., 353
F.3d 211, 220 (3d Cir. 2003) (recusal is warranted when a judge’s impartiality might
reasonably be questioned). Babayoff states that the presiding judge should be recused
based on a “relationship” with defense counsel and “bias towards the plaintiff.” Dkt No.
16, at 1–2. Babayoff’s complaints, rather, are based on ordinary judicial decision-making
and we have repeatedly held that mere dissatisfaction with rulings does not warrant
recusal. See Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.
2000). Additionally, upon review of the record, we cannot say that a reasonable person
would conclude the District Judge’s impartiality could reasonably be questioned. See In
re Kensington Int’l Ltd., 368 F.3d 289, 301 (3d Cir. 2004).
VI.
Finally, Babayoff appeals the District Court’s February 16, 2022 denial of his
motion for reconsideration. Dkt No. 31. A motion for reconsideration may be used “to
correct manifest errors of law or fact or present newly discovered evidence.” Max’s
Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (quotation marks omitted).
We agree with the District Court that Babayoff failed to present any errors or law or fact,
or introduce newly discovered evidence or precedent. Babayoff, rather, improperly
attempted to relitigate issues that the District Court had already considered. See Blystone
v. Horn, 664 F.3d 397, 415 (3d Cir. 2011).
8
VII.
For the foregoing reasons, we will affirm the decision of the District Court.
Appellees’ motion to dismiss for failure to file the required appendix is denied.
9