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Electronically Filed
Jun 25 2021 10:28 a.m.
Elizabeth A. Brown Clerk of Supreme Court
Mark Forsberg, Esq., NSB 4265
Rick Oshinski, Esq., NSB 4127
OSHINSKI & FORSBERG, LTD.
504 B. Musser Street, Suite 202
Carson City, NV 89701
T 775-301-4250 1 F 775-301-4251
rick@oshinskiforsberg.com
mark@oshinskiforsberg.com
Attorneys for Appellant
IN THE SUPREME COURT OF THE STATE OF NEVADA
Supreme Court Case No. 82559
District Court Case No. 0900005791B
REZA ZANDIAN, A/K/A GOLAMREZA ZANDIANJAZI, A/K/A GHOLAM REZA ZANDIAN, A/K/A REZA JAZI, A/K/A J. REZA JAZI, A/K/A G. REZA JAZI, A/K/A GHONOREZA ZANDIAN JAZI, an individual,
Appellant,
v.
JED MARGOLIN, an individual,
Respondent.
OPPOSITION TO MOTION TO DISMISS APPELLANT'S UNTIMELY APPEAL FOR LACK OF JURISDICTION
COMES NOW Appellant, Reza Zandian, A/K/A Golarnreza Zandianjazi, A/K/A Gholam Reza Zandian, A/KJA Reza Jazi, A/K/A J. Reza Jazi, A/K/A G. Reza Jazi, A/K/A Ghonoreza Zandian Jazi ("Appellant" and/or "Zandian"), by and through his attorneys, Mark Forsberg, Esq. and Oshinski & Forsberg, Ltd., and
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hereby opposes the Respondent's motion to dismiss this appeal as untimely for lack of jurisdiction.
FACTUAL BACKGROUND
Appellant does not dispute that the First Judicial District Court entered an order on January 19, 2121, granting Plaintiff/Respondent's Motion to Void Deeds, Assign Property, For Writ of Execution and To Convey, which is the order appealed from here (ROA 3524) and attached as Exhibit 1 to the Declaration of Matthew D. Francis made in support of the Motion to Dismiss Appeal. Appellant also does not dispute that, for the purposes of this Opposition, Respondent served Appellant with the notice of entry of that order. The certificate of service attached to the order, which accompanies Respondent's motion as Exhibit 2, reflects that the Notice of Entry of order was mailed to Appellant on February 22 to two physical addresses and that a courtesy copy also was emailed to him. ROA 3531.
Appellant also does not dispute that the district court clerk stamped Appellant's courier-delivered hard copy of the Notice of Appeal as filed on February 25, 2021.
Absent from Respondent's recitation of the facts are steps Appellant took to achieve timely filing of the Notice of Appeal. On February 23, 2021, at 23:46 hours, Appellant emailed to the email address of the district court clerk a message which included as attachments the Notice of Appeal and two checks, one for the $250 Supreme Court filing fee and the other a $24 check for the filing fee of the notice in the district court. The February 23, 2021 email and attachments are attached as Exhibit 1 to the Declaration of Mark Forsberg, Esq., attached hereto in support of this Opposition. Appellant's email to the court clerk stated as follows:
Re our conversation of this morning please find herewith the notice of appeal from honorable judge Russell order and two checks of $250 and $24.
I will send you the UPS receipt by another email.
My regards
Reza Zandian
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A copy of the court clerk's Automatic Reply proving receipt of the email on February 24, 2021 is attached hereto as Exhibit 2.
At 23:58 on February 23, 2021, Appellant emailed the district court clerk a UPS receipt showing that he had deposited a package for overnight delivery with UPS. The UPS receipt contained the tracking number 1ZEA41990177694748. The UPS receipt is attached to the Declaration of Mark Forsberg as Exhibit 3.
Appellant did not rely on email alone to file his notice of appeal. Tracking information downloaded from the upsstore.com by Mark Forsberg and attached to his declaration as Exhibit 4, shows that UPS received a package from Appellant and that it left a UPS facility on February 23, 2021 at 8:45 p.m. Two entries made at 4:00 a.m. on February 24, 2021 reflect that a mechanical failure caused UPS to be unable to load Appellant's package on the plane as scheduled. The tracking information shows that ultimately the package was delivered to the First Judicial District Court at 1:03 p.m. on February 25, 2021. The time stamp of the district court clerk on the Notice of Appeal indicates that the document, Appellant's Notice of Appeal, was stamped at 1:10 p.m. on that day. Respondent mistakenly relies on this time stamp to argue that Appellant's Notice of Appeal was not timely filed.
ARGUMENT
NRAP 3(a)(1) provides that an appeal may be taken only by filing a notice of appeal with the district court clerk "within the time allowed by Rule 4." NRAP 4(a)(1) provides that "Except as provided in Rule 4(a)(4), a notice of appeal must be filed after entry of a written judgment or order, and no later than 30 days after the date that written notice of entry of the judgment or order appealed from is served." NRAP 26 prescribes the method for calculating time periods specified in the rules. Rule 26(a)(1)(A) provides that the day of the event that triggers the period is to be excluded. In this case, this means that the time should be counted beginning
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'Rule 4(a)(4) addresses tolling motions pending in the district court that extend the time for filing a notice of appeal. No such motions affected the time in this case.
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with January 23, 2021, the day after service was complete on Appellant. Rule 26(c) provides that "when a party is required or permitted to act within a prescribed period after a paper is served on that party, three days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service." In this case, per the Certificate of Service attached to the Notice of Entry of Order, Appellant was served by U.S. Mail and was not served delivered on the date listed on the proof of service, January 22, 2021. Therefore, three days is added to the time permitted for filing a notice of appeal. In accordance with the rule, and commencing the counting with January 23, the Notice of Appeal was required to be filed on February 24, 2021.
It is clear from the facts that Appellant correctly calculated the date upon which the notice of appeal was required to be filed in the district court. Appellant shipped the Notice of Appeal by depositing it with UPS on February 23 for overnight delivery to the clerk of the district court and justifiably relied upon the overnight courier to deliver the notice to the district court clerk on February 24, the date the notice was due. When UPS encountered a mechanical problem that delayed delivery of the Notice of Appeal to the district court clerk until February 25, the clerk stamped the notice that date, creating the incorrect impression that the notice was one day late.
What Appellant and counsel for Respondent fail to recognize in calculating the due date is that this court and the district court issued orders concerning the administration of district court proceedings during the COVID-1 9 pandemic that altered the method by which the district court could and would receive time-sensitive documents such as the Notice of Appeal. On April 10, 2020 this court issued its Order Concerning Ongoing Administration of District Court Proceedings During Covid-19 Emergency, denominated AO-0013. A copy of the order is attached to the Declaration of Mark Forsberg as Exhibit 5. The order contained an attachment for use by the district court as the template of an order addressing the manner in which
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the district courts would operate during the Covid- 19 state of emergency. Section 4 of the template stated as follows:
For courts without e-filing, pleadings and papers to be filed should be mailed to the court clerk with a self-addressed stamped envelope for the return of file-stamped copies. If there is a time issue - - deadline imposed by statute, rule, or order - - the document may be:
a. Dropped off at the filing deposit box (which is monitored by security) just inside the courthouse front entrance with a self-addressed stamped envelope for the return of file-stamped copies; or
b. Emailed to the court clerk at [court clerk's email address] or faxed to the court clerk at [court clerk's facsimile number], with the original mailed to the court clerk the same day, with a self-addressed envelope for the return of file-stamped copies.
The First Judicial District Court, in accordance with Supreme Court Administrative Order AO-0013, issued its own administrative order on March 20, 2020, which provides in part:
The First Judicial District Court will allow documents to be submitted by email in the form of PDF documents to districtcourtclerk@carson.org or by Facsimile (775) 887-2177 pursuant to Nevada Rules of Civil Procedure Rule 6 Computing and Extending Time. The Clerk's Office will print, review, and file or receive stamp documents. All documents will be reviewed by the court and any format requirements or changes will be communicated to the parties. Original documents are required to follow unless otherwise approved by the court. Documents hand-delivered or received by mail will be processed.
A copy of the order is attached to the Declaration of Mark Forsberg as Exhibit 6.
In this case, Appellant precisely followed the recommended order of this court and the administrative order issued by the First Judicial District Court. He emailed his Notice of Appeal to districtcourtclerkcarson.org. See Declaration, Exhibit 1. This email with the Notice of Appeal attached was sent on February 23, 2021, after
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a telephone conversation earlier in the day with the court clerk. Id. Under the terms of the Administrative Order, therefore, Appellant's Notice of Appeal was filed with the district court on February 23, 2021, one day before it was due. As required, Appellant timely took the additional step of sending the court clerk a copy of his UPS overnight delivery receipt showing it was to be delivered on February 24, the actual due date. Although this step has no legal meaning since the notice was filed when it was emailed, it further demonstrates Appellant's diligence and confirms his compliance with the administrative order for filing documents with the district court.
Respondent may now argue (but did not in his
Motion) that Appellant's Notice of Appeal was insufficient for a reason other
than failing to meet the jurisdictional deadline, such as failing to
concurrently pay the filing fee, but such arguments would be unavailing. This
is so because Rule 3(a)(2) provides that "an appellant's failure to take
any step other than the timely filing of a notice of appeal does not affect the
validity of the appeal but is ground only for the court to act as it deems
appropriate, including dismissal of the appeal." In this regard the
district court's administrative order is deficient. It clearly allows the filing
of a document on the date it is due via email, but there is no provision
addressing concurrent payment, creating, as here, the possibility that a filer
can meet the requirements for timely filing via email, yet face a deficiency
because the payment could not be received by the same method on the due date.
This is the kind of insufficiency that Rule 3(a)(2) addresses. Here, Appellant
attempted to make payment on the due date and, but for problems with the
overnight courier service, the payment would have been received on the due
date.
It was received the following day, which is not an
insufficiency justifying dismissal of this appeal. Moreover, the statement in
the clerk's automatic response (Exhibit 2, supra) states "Also, we
are unable to accept e-mailed documents that require a filing fee."
(Emphasis in original.) This policy contravenes NRAP 3(a)(3) which provides in
part that "The district court clerk must file appellant's notice of appeal
despite perceived deficiencies in the notice, including the failure to pay the
district court or
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Supreme Court filing fee." Therefore, if, arguendo, Appellant failed to pay to filing fees, the clerk had a duty to file the notice of appeal when it was received on February 23, 2021, or at the latest on February 24, even if the fees were not received until February 25.
CONCLUSION
Respondent's motion to dismiss the appeal is misplaced because it fails to recognize the orders of this court and the district court permitting the filing by email of PDF documents that are time sensitive. Appellant has established that he followed the terms of the administrative order by emailing his Notice of Appeal as a PDF document to the clerk of the First Judicial District Court a day before it was due and attempted to make payment and deliver a physical copy of the notice by overnight service to be delivered on the due date. It is unclear why the district court did not recognize or make a notation on the file that the Notice of Appeal was timely received by email, but the facts demonstrate that emailed notice was timely received and acknowledged by the clerk. Therefore, the Motion to Dismiss this appeal for failing to file a timely notice should be, and must be, denied.
Dated this 25th day of June, 2021.
OSHINSKI & FORSBERG, LTD.
By Mark Forsberg, Esq.
Mark Forsberg, Esq., NSB 4265
Attorneys for Appellant
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Mark Forsberg, Esq., NSB 4265
Rick Oshinski, Esq., NSB 4127
OSHINSKI & FORSBERG, LTD.
504 E. Musser Street, Suite 202
Carson City, NV 89701
T 775-301-4250 1 F 775-301-4251
ricic@oshinskiforsberg.com
mark@oshinskiforsberg.com
Attorneys for Appellant
IN THE SUPREME COURT OF THE STATE OF NEVADA
Supreme Court Case No. 82559
District Court Case No. 0900005791B
REZA ZANDIAN, A/K/A GOLAMREZA ZANDIANJAZI, A/K/A GHOLAM REZA ZANDIAN, A/K/A REZA JAZI, A/K/A J. REZA JAZI, A/K/A G. REZA JAZI, A/K/A GHONOREZA ZANDIAN JAZI, an individual,
Appellant,
vs.
JED MARGOL1N, an individual,
Respondent.
DECLARATION OF MARK FORSBERG
I, Mark Forsberg, do hereby declare and state as follows:
1. I have personal knowledge of the following facts and, if called as a witness, could and would testify competently to them. This declaration is based upon my personal knowledge and is made in support of Appellant's Opposition to
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Respondent's Motion to Dismiss Appellant's Untimely Appeal for Lack of Jurisdiction.
2. Attached hereto as Exhibit 1 is a true and correct copy of Appellant's February 23, 2021 email to the First Judicial District Court and its attachments consisting of Appellant's Notice of Appeal and copies of two checks for payment of fees.
3. Attached hereto as Exhibit 2 is a true and correct copy of the District Court Clerk's automatic reply showing receipt on February 24, 2021 of the email described in Exhibit 1.
3. Attached hereto as Exhibit 3 is a true and correct copy of Appellant's second February 23, 2021 email to the First Judicial District Court clerk and. UPS Shipment Receipt.
4. Attached hereto as Exhibit 4 is a true and correct, copy of tracking information downloaded by me from theupsstore.com using the tracking number 1ZEA41990177694748 obtained from Appellant's UPS Shipment Receipt included as part of Exhibit 3.
5. Attached hereto as Exhibit 5 is a true and correct copy of Supreme Court Administrative Order AO-0013, Order Concerning Ongoing Administration of District Court Proceedings During Covid-19 Emergency.
7. Attached hereto as Exhibit 6 is a true and correct copy of First Judicial District Court Administrative Order dated March 20, 2021.
I declare under penalty of perjury pursuant to the laws of the State of Nevada that the foregoing is true and correct.
Dated this day of June, 2021
OSHINSKI & FORSBERG, LTD.
Mark Forsberg, Esq.,
Attorneys for Appellant
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