                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                  NOT PRECEDENTIAL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.




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