Reza Farzan v.

• Court: Court of Appeals for the Third Circuit
• Decided: April 27, 2022
• Docket: 21-2445
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-2445 ___________

In re: REZA FARZAN, Appellant ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.N.J. Civil Action No. 3-20-cv-07134) District Judge: Honorable Freda L. Wolfson ____________________________________

___________

No. 21-2446 ___________

In re: REZA FARZAN, Appellant ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.N.J. Civil Action No. 3-20-cv-07135) District Judge: Honorable Freda L. Wolfson ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) April 13, 2022

Before: MCKEE, SHWARTZ and MATEY, Circuit Judges

(Opinion filed: April 27, 2022) ___________

OPINION* ___________

PER CURIAM

In these related appeals, Reza Farzan, proceeding pro se, appeals an order of the

United States District Court for the District of New Jersey dismissing two bankruptcy

appeals and orders denying his subsequent motions for relief. We will affirm the

judgments of the District Court.

In 2019, Bayview Loan Servicing, LLC obtained a judgment of foreclosure

against Farzan in New Jersey state court. Shortly thereafter, Farzan filed a Chapter 13

bankruptcy petition. Farzan unsuccessfully filed an adversary proceeding against

Bayview claiming fraud related to his mortgage. Farzan also filed a motion in the

Bankruptcy Court to disallow Bayview’s proof of claim. Bayview filed a motion for

relief from the automatic stay. The Bankruptcy Court granted Bayview’s motion and

denied Farzan’s motion. On June 5, 2020, Farzan filed notices of appeal as to both orders

and two appeals were docketed in the District Court.

On October 20, 2020, the District Court sua sponte dismissed both appeals.

Farzan had not complied with Federal Rule of Bankruptcy Procedure 8009(a), which

requires the filing of a designation of the items to be included in the record on appeal and

a statement of the issues within 14 days of the filing of a notice of appeal. The District

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 Court considered the factors in Poulis v. State Farm Fire and Casualty Company, 747

F.2d 863 (3d Cir. 1984), and concluded that dismissal was warranted.

Farzan moved to reinstate both appeals. He stated that on June 12, 2020, he had

mailed a letter from his home designating the record for both appeals. Farzan, who was

70 years old, suffered from medical conditions and had stopped going to the post office

due to the COVID-19 pandemic. Farzan addressed the Poulis factors and asserted that he

had been doing his best to proceed in good faith. He stated, among other things, that

neither the Bankruptcy Court nor the District Court had notified him that his designation

of the record was not received. He was unaware that he was required to file a statement

of the issues. Farzan attached a copy of a document designating the record dated June 12,

2020. He also filed the document and a statement of the issues for the appeals.

The District Court denied Farzan’s motion, which it construed as a motion under

Federal Rule of Civil Procedure 60(b) for relief from the judgment. Although the District

Court did not find that Bayview would be prejudiced if the appeals were reinstated, it

explained that the delay was substantial. Farzan did not file the required documents until

November 2020, more than five months after he filed his notices of appeal. The District

Court noted that Farzan appeared to be aware of the rule as he had timely filed these

documents in his appeal in his adversary proceeding.1

The District Court also did not find Farzan’s explanation credible and noted that

this undercut his assertion that he acted in good faith. It stated that Farzan did not

1 The docket for this appeal reflects that Farzan filed a designation of the record; he did not file a statement of issues. See D.N.J. Civ. No. 3-20-cv-03330. 3 provide proof that he mailed the June 12, 2020, document designating the record, that he

did not appear to have checked the docket to see whether the Bankruptcy Court received

it, and that he did not inquire about the status of his appeals or whether the Court had

transmitted the record to the District Court, which would have triggered the time to file

his brief. The Court was sympathetic to the difficulties caused by the pandemic, but

concluded that Farzan had not explained his failure to monitor the docket and that his

dilatory conduct did not constitute excusable neglect warranting relief under Rule 60(b).

Farzan filed a motion to reconsideration. He reiterated arguments made in his

motion to reinstate his appeals and asserted that the Bankruptcy Court had misled him.

He also noted that he had left a voicemail with the District Court Clerk’s Office inquiring

about his appeals, although he admitted he did not follow up again. Farzan submitted

evidence of issues with mail delivery due to the pandemic, notes from his doctor and

therapist, and copies of emails he had exchanged with Bankruptcy Court staff.

The District Court denied Farzan’s motion for reconsideration. It rejected his

argument that the Bankruptcy and District Courts were required to notify him of the

deadlines or deficiencies, restated the reasons it had denied his motion to reinstate his

appeals, and explained that the failure to comply with Rule 8009(a) was grounds for

dismissal. It also ruled that Farzan’s documentary evidence was not new and did not

change the outcome. These appeals followed.

4 We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1).2 We review the District

Court’s orders for abuse of discretion. See Jewelcor Inc. v. Asia Com. Co., Ltd., 11 F.3d

394, 397 (3d Cir. 1993) (dismissal order); In re Blast Energy Servs., Inc., 593 F.3d 418,

423 (5th Cir. 2010) (order denying motion for rehearing).3

Farzan argues in his brief that the District Court erred in denying his motion to

reinstate his appeals and his motion for reconsideration. He reiterates that neither the

Bankruptcy Court nor the District Court notified him that a designation of the record and

statement of issues were not received. He also argues that dismissal of his appeals was

not warranted for failing to comply with Rule 8009(a) and notes cases where appeals

were not dismissed based on such failures.

The District Court had discretion to dismiss Farzan’s appeals for failure to comply

with Rule 8009(a). See Fed. R. Bankr. P. 8003(a)(2). As the District Court noted, Farzan

cites no support for his contention that the Bankruptcy and District Courts should have

notified him that the required filings were not received. We agree with Farzan to the

extent he contends that the District Court should have given him notice and an

2 Our jurisdiction extends to all of the District Court’s orders. Because the District Court did not issue a separate judgment when it dismissed Farzan’s appeals, the order is not deemed entered until March 19, 2021. See Fed. R. App. P. 4(a)(7)(A)(ii), 6(b)(1); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 224 (3d Cir. 2007). Farzan’s then-pending motion for reconsideration tolled the running of the time to appeal until reconsideration was denied on July 27, 2021, and Farzan timely filed his notices of appeal on July 30, 2021. See Fed. R. App. P. 4(a)(1), 6(b)(1), 6(b)(2)(A). 3 Farzan’s motions are properly treated as motions for rehearing under Federal Rule of Bankruptcy Procedure 8022. See English-Speaking Union v. Johnson, 353 F.3d 1013, 1020 (D.C. Cir. 2004) (addressing predecessor Rule 8015). 5 opportunity to respond before dismissing his appeals. See Brief at 64; In re Harris, 464

F.3d 263, 272-73 (2d Cir. 2006) (requiring notice and an opportunity to respond where

district court dismissed debtor’s appeal for failure to include a transcript in the

designation of the record); see also Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008)

(holding a district court should provide an opportunity to explain a failure to prosecute

before dismissing a case). However, Farzan explained his failure to comply with Rule

8009(a) in his motion to reinstate his appeals. As noted above, the District Court ruled

that relief was not due in light of the substantial delay and his ability to follow the rules in

another bankruptcy appeal. It also found Farzan’s explanation – that he was unaware that

the Bankruptcy Court did not receive his document designating the record – not credible.

Farzan has not shown that the District Court erred in this regard. As the District

Court recognized, Farzan was litigating an appeal of the dismissal of his adversary

complaint related to the same bankruptcy case. He filed his brief in that appeal shortly

before filing his notices of appeal of the Bankruptcy Court orders at issue here. Farzan

was also filing documents in the state foreclosure action and a related federal civil rights

action at this time. Insofar as Farzan states that he could file documents by email in the

District Court but not in the Bankruptcy Court, that does not explain his failure to

monitor the dockets. His filings reflect that he had access to PACER. Farzan notes that

courts had issued standing orders extending deadlines due to the pandemic; however, the

extensions were no longer in place when his filings were due.4

4 Farzan does not contend in his opening brief that the District Court erred in assessing the Poulis factors or applied an incorrect standard in deciding his motion to reinstate his 6 Farzan also disputes the District Court’s conclusion that the letters from his doctor

and therapist were not new evidence, which is required for a motion for reconsideration.

He states that he could not have obtained them before filing his motion to reinstate his

appeals. Even if Farzan’s letters could be considered under Rule 8022, see supra note 3,

we agree with the District Court that they do not adequately explain his failure to

prosecute his appeals. As discussed above, Farzan was able to litigate other matters at

this time.

We also agree with the District Court that Farzan’s other evidence was not new or

that relief was not due to the extent it could be considered. Farzan submitted evidence

showing that the pandemic impacted mail service in December 2020, but this was six

months after he filed his appeals. And this evidence does not address why Farzan did not

pursue his appeals after he purportedly mailed the designation of the record.

Farzan also submitted copies of emails to show that the Bankruptcy Court led him

to believe he had done everything needed to perfect his appeals. The Bankruptcy Judge’s

Courtroom Deputy emailed Farzan regarding the notice of appeal and fee that the Court

had received. Farzan clarified that he sought to appeal two orders and the Courtroom

Deputy advised him that he needed to send a filing fee for the second appeal. This

exchange did not involve Rule 8009(a)’s requirements.

appeals. We do not consider any issues in this regard as Farzan has forfeited them. Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Distr., 877 F.3d 136, 147 (3d Cir. 2017). Farzan has also forfeited any issue raised for the first time in his reply brief. Garza v. Citigroup Inc., 881 F.3d 277, 284-85 (3d Cir. 2018). 7 Farzan also emailed the Courtroom Deputy after he learned that his appeals were

docketed in the District Court. He asked if he should “wait for dates for designations and

scheduling orders[.]” Mot. for Recons., Exh. 6. The Courtroom Deputy responded that

his case was assigned to the District Court and that he should contact that Court for dates

and scheduling orders. It is not clear whether Farzan was asking about the date his

designations of record were due, the date that his designations of record would be

transmitted to the District Court and filed there, or something else. And the emails do not

call into question the District Court’s reasoning that Farzan did not monitor the dockets

or follow up with the District Court.

Insofar as Farzan argues that the Bankruptcy Court erred in his underlying

bankruptcy case, the merits of his appeals are not before us. We have considered

Farzan’s other arguments and conclude that they lack merit. Accordingly, we will affirm

the judgments of the District Court.5

5 Farzan’s motion to expand the record to include the records from his related cases is denied. 8