El Ali v. Litton Loan Servicing, LP

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-16-2007
Muhammad El Ali v. Litton Loan Ser
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4972
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 05-4972
________________
DONALD MUHAMMAD EL ALI;
LISA SMITH,
Appellants
V.
LITTON LOAN SERVICING, LP;
CREDIT BASED ASSET SECURITIZATION, LLC
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(E.D. Pa. No. 04-cv-02846)
District Judge: Honorable Gene E. K. Pratter
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
February 8, 2007
Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES.
(Filed: February 16, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Muhammad El Ali (also known as Donald Smith) and Lisa Smith, proceeding pro
se, appeal an order of the United States District Court for the Eastern District of
Pennsylvania dismissing their complaint and imposing a pre-filing injunction. We will
dismiss this appeal because it is untimely.
In 2004, El Ali and Smith filed a complaint, which they later amended, seeking
rescission of a mortgage and note with respect to their home in Bala Cynwyd, and
alleging violations of the Truth-In-Lending Act and Fair Debt Collection Practices Act.
The defendants filed a Rule 12(b)(6) motion to dismiss the Amended Complaint for
failure to state a claim. Despite yeoman efforts by the District Court to encourage a
response from El Ali and Smith, none was forthcoming. El Ali and Smith also failed to
appear at two initial pretrial conferences, the second of which was scheduled for
January 25, 2005. On February 7, 2005, the District Court dismissed the Amended
Complaint with prejudice for failure to state a claim 1 and imposed a pre-filing injunction
based on a finding that the plaintiffs had filed at least nine prior frivolous actions or
appeals in the United States District Court for the Eastern District of Pennsylvania, the
Bankruptcy Court for the Eastern District of Pennsylvania, and this Court, dating back to
2001.2
1
The District Court held that, in light of the entry of a default judgment against El
Ali and Smith in the Montgomery County Court of Common Pleas in April 2004, res
judicata barred all claims. The District Court also held that to the extent that the state
foreclosure action was still pending, both the Younger abstention doctrine and Rooker-
Feldman prevented the District Court from deciding the case. Alternatively, the District
Court held that the Truth-In-Lending Act claims were barred by the applicable statute of
limitations. The District Court dismissed the Amended Complaint with prejudice and
denied the plaintiffs’ motion for a temporary restraining order.
2
For a history of previous litigation, see footnote 2 in the District Court Opinion.
2
In late September 2005, the defendants moved to have El Ali and Smith held in
contempt of the pre-filing injunction. On October 6, 2005, the District Court notified El
Ali and Smith of a scheduled contempt hearing.3 They filed a Notice of Appeal from the
dismissal order and pre-filing injunction on November 4, 2005.
We have jurisdiction pursuant to 28 U.S.C. § 1291. A few days before El Ali and
Smith filed their notice of appeal, the Supreme Court decided Eberhart v. United States,
126 S. Ct. 403, 407 (2005), holding that the rules setting forth time limits for a motion for
a new trial are not jurisdictional, but claim-processing rules, and a party may forfeit an
untimeliness defense by not timely raising it.
Eberhart involved Federal Rule of Criminal Procedure 33, which sets forth the
time to file a motion for a new trial, and Rule 45, which limits a court’s ability to extend
the time to take action under Rule 33. The court of appeals had determined that the
District Court lacked jurisdiction to grant Eberhart’s motion for a new trial, even though
the government raised Eberhart’s noncompliance with the time limitations of Rule 33 for
the first time on appeal. The Supreme Court held that the government had forfeited this
defense in the district court, and thus the court of appeals should have proceeded to the
merits. Id. In so ruling, the Supreme Court looked to its decision in Kontrick v. Ryan,
540 U.S. 443, 456 (2004), which held that a party may forfeit the defenses made available
by the time limitations of Federal Rules of Bankruptcy Procedure.
3
The hearing occurred on December 5, 2005. As of the date of this Opinion, the
District Court has not rendered a decision.
3
This Court has not issued any order, rule, or other directive requiring that
objections based on the untimeliness of an appeal be raised prior to the filing of the initial
brief, and thus Litton did not forfeit its objection to the untimeliness of El Ali and Smith’s
appeal when it raised the issue for the first time in its appellate brief. See United States v.
Singletary, ___ F.3d ___, 2006 WL 3716684 (D.C. Cir. Dec. 19, 2006) (holding that the
Government did not forfeit its objection to the untimely filing of the notice of appeal by
raising the issue in its appellate brief because there was no rule, order, internal procedure,
or published guidance from the court of appeals requiring parties to object to the
untimeliness of an appeal earlier in the appeal process).
Litton contends that the appeal is untimely because El Ali and Smith filed it more
than thirty days after the District Court dismissed the Amended Complaint. We agree.
The Federal Rules of Appellate Procedure required appellants to file their notice of appeal
within thirty days of the date of the District Court’s order. Fed. R. App. P. 4(a)(1). El Ali
and Smith filed their notice of appeal on November 4, 2005, about seven months after the
District Court entered the February 7, 2005 dismissal order. Because no timely Rule 59
or Rule 60 motion was filed, the appeal period was not tolled. See Fed. R. App. P.
4(a)(4); De la Fuente v. Central Elec. Co-Op, Inc., 703 F.2d 63, 65 (3d Cir. 1983). Also,
El Ali and Smith did not file a motion for extension of time to file an appeal pursuant to
Fed. R. App. P. 4(a)(5) or to reopen the time for filing an appeal pursuant to Rule 4(a)(6)
in the District Court, their only avenues for extending or reopeneing the appeal period.
See Poole v. Family Court of New Castle County, 368 F.3d 263, 269 (3d Cir. 2004)
4
(holding that relief under Rules 4(a)(5) and (6) requires the filing of the appropriate
motion, not just a notice of appeal).
El Ali and Smith make no argument with respect to the timeliness of their notice of
appeal. This is not a case of mere inadvertence by inexperienced pro se litigants. El Ali
and Smith have filed about ten lawsuits in the Eastern District of Pennsylvania and have
appealed District Court orders to this Court. They are not exempt from the rules of
procedure.
Accordingly, because El Ali and Smith did not timely appeal the District Court’s
order, we will dismiss this appeal.
5