NOT PRECEDENTIAL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

We exercise plenary review

over Rule 12(b)(5) dismissals, see Umbenhauer v. Woog,

(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,

(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.,

, 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.,

(11th Cir. 2007). We review the denial of Babayoff’s motions for abuse of

discretion. See Lazaridis v. Wehmer,

(3d Cir. 2010) (per curiam)

(motion for reconsideration); Azubuko v. Royal,

(3d Cir. 2006) (per

curiam) (motion for recusal); Drippe v. Tobelinski,

(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.,

, 514 n.5 (3d Cir. 1971); Blair v. City of Worcester,

(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.,

, 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,

, at *3 (D.N.J. Aug. 23, 2017); Hillside Golf, Inc. v. Gino Inn, Inc.,

, 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,

, 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,

, 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,

(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.

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

(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.,

(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.,

(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.,

(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,

, 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,

(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