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Electronically Filed
Jun 30 2021 02:16 p.m.
Elizabeth A. Brown
Clerk of Supreme Court
IN
THE SUPREME COURT OF THE STATE OF
Supreme Court No. 82559
District Court Case No. 09OC005791B
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 MARGOLIN, AN INDIVIDUAL,
Respondent.
RESPONDENT’S REPLY IN SUPPORT OF MOTION TO DISMISS APPELLANT’S UNTIMELY APPEAL FOR LACK OF JURISDICTION
Respondent Jed Margolin hereby submits this Reply in support of his Motion to Dismiss.
The Record on Appeal shows that Appellant filed his Notice of Appeal on February 25, 2021, outside the time limit contained in NRAP 4(a)(1). 15 ROA 3529-39. The best evidence of when a document was filed is the date it is entered by the clerk. State v. Hess, 622 N.W.2d 891, 901 (Neb. 2001), citing H. R. Lee Inv. Corp. v. Groover, 225 S.E.2d 742, 744 (Ga. 1976), also citing In re Estate of Crabtree, 4 Cal. App. 4th 1119, 1125, 6 Cal. Rptr. 2d 224, 226-227 (1992) Thus, it
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is presumed that February 25, 2021 is the date
Appellant’s untimely Notice of Appeal was filed.
In his Opposition, Appellant
attempts to rebut this presumption by offering an unsupported story about how
he allegedly served the Notice of Appeal from both
Even if this Court considers the facts and documents that Appellant’s counsel has no personal knowledge of, such facts and supporting documents are about as credible as Appellant Zandian, who: (1) has a warrant issued for his arrest for contempt of the First Judicial District Court (13 ROA 3115–16; 15 ROA 350809); (2) has attempted to bribe Respondent’s counsel by offering to pay counsel directly to end this action outside of Mr. Margolin’s interests (14 ROA 3424–28)[1]; (3) has fraudulently transferred Mr. Margolin’s U.S. Patents and real property (1 ROA 1-10; 13-14 ROA at 3162-3463); (4) has filed three prior unsuccessful appeals in this Court to avoid Mr. Margolin’s Default Judgment entered over eight
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[1] Appellant Zandian wrote an email to Respondent’s attorney on April 13, 2016 stating in part: “I do not wish to pay a dime to Margolin but I am prepared to pay you up to $30,000 cash or $50,000 within 18 months ….” 14 ROA 3426-3427.
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years ago
(Supreme Court
I. REPLY ARGUMENTS
A. APPELLANT’S OPPOSITION IS UNSUPPORTED BY EVIDENCE AND APPELLANT’S COUNSEL’S DECLARATION MADE WITHOUT PERSONAL KNOWLEDGE IS ENTITLED TO NO WEIGHT
It is undisputed that the facts
and documents that support Appellant’s Opposition are not supported by a
declaration from Appellant Zandian, who was unrepresented by counsel at the
time he filed his Notice of Appeal. 15 ROA 3546. The
only declaration in support of Appellant’s Opposition regarding what efforts
Appellant allegedly undertook to serve his Notice of Appeal on time, and what
documents support such arguments, is that of Appellant’s counsel who has no
personal knowledge of such facts or documents. See Opp. Motion Dismiss, pp. 27;
Forsberg Decl. ¶¶ 1-4, Exhibits 1-4. Simply put, Appellant’s counsel cannot
attest to what actions Appellant did nor did not take on February 23, 2021, and
cannot authenticate documents that were allegedly created during that time when
Appellant was unrepresented. Id. Appellant’s counsel was not present
during alleged conversations with the court, did not write to or receive emails
from the First Judicial District Court, did not mail any documents, and does
not have personal knowledge of Zandian’s alleged actions listed on pages 2-7 of
Appellant’s Opposition to espondent’s Motion to
Dismiss.
The law is clear that a declaration made by counsel without personal
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knowledge is afforded no weight. See Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1412-13 (9th Cir. 1995) (holding that an attorney declaration made without personal knowledge is entitled to no weight) (citations omitted) (emphasis added); NRS 50.025 (witness may not testify if they lack personal knowledge); see NRS 52.015; NRS 52.025 (“The testimony of a witness is sufficient for authentication or identification if the witness has personal knowledge that a matter is what it is claimed to be”). Since the statements and documents made in support of the arguments contained in Appellant’s Opposition to Respondent’s Motion to Dismiss are made by Appellant’s counsel who lacks personal knowledge, such statements, documents, and arguments are afforded no weight and cannot rebut the fact and presumption that February 25, 2021 is the date Appellant’s untimely Notice of Appeal was filed. Hess, 622 N.W.2d at 901; H. R. Lee Inv. Corp., 225 S.E.2d at 744; In re Estate of Crabtree, 4 Cal. App. 4th at 1125, 6 Cal. Rptr. 2d at 226-227.
B. EVEN IF UNSUPPORTED FACTS AND UNAUTHENTICATED DOCUMENTS THAT SUPPORT APPELLANT’S OPPOSITION ARE CONSIDERED, THEY ARE NOT CREDIBLE AND SHOULD BE REJECTED
Even if Appellant’s unsupported facts and unauthenticated documents are considered, they are not credible. As just one example, in Appellant’s Opposition to Respondent Margolin’s Motion to Dismiss, Appellant represents that he served his Notice of Appeal via email from France and via UPS from Santa Ana, California on February 23, 2021. Opp. Motion Dismiss, pp. 2-3, Exhibits 1 and 3. Specifically, the certificate of service attached to his Notice of Appeal shows that Appellant Zandian allegedly served undersigned counsel via mail from Paris, France: “6 Rue Edouard Fourier, 75116, Paris, France” on February 23, 2021. Opp.
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Motion Dismiss, Exhibit 1 at p.
5. To the contrary, the UPS label Appellant presented to this Court originated
at a UPS Store in California and shows Appellant Zandian’s address as “15 McCarthur Place, Apt 507 Santa Ana, CA 92707.” Opp. Motion
Dismiss, Exhibit 3. In Zandian’s “Informal Brief,” he states that he is a
resident of
II. CONCLUSION
For all of the foregoing reasons, Respondent’s Motion to Dismiss Appellant’s Untimely Appeal for Lack of Jurisdiction should be granted, and Appellant’s appeal should be dismissed.
DATED this 30th day of June, 2021.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
By: /s/Matthew D. Francis
Matthew D. Francis
Nevada Bar No. 6978
Arthur A. Zorio
Nevada Bar No. 6547
Telephone: 775.324.4100
Facsimile: 775.333.8171
Email: mfrancis@bhfs.com
azorio@bhfs.com
Attorneys for Respondent JED MARGOLIN
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CERTIFICATE OF SERVICE
Pursuant to NRAP 25(b), I certify that I am an employee of Brownstein Hyatt Farber Schreck, LLP, and on this 30th day of June, 2021, I served the document entitled RESPONDENT’S REPLY IN SUPPORT OF MOTION TO DISMISS APPELLANT’S UNTIMELY APPEAL FOR LACK OF JURISDICTION on the parties listed below in the manner described below:
Mark Forsberg, Esq.
Rick Oshinski, Esq.
Oshinski & Forsberg, Ltd.
rick@oshinskiforsberg.com
mark@oshinskiforsberg.com
[ ] VIA U.S. MAIL: by placing a true copy thereof enclosed in a sealed envelope with first class postage thereon fully prepaid, in the United States mail at Reno, Nevada as addressed to the foregoing party.
[
] VIA COURIER: by delivering a copy of the document to Federal Express for
first priority delivery to the foregoing party in
[X] VIA ELECTRONIC SERVICE: by electronically filing the document with the Clerk of the Court using the ECF system which served the foregoing parties electronically:
/s/ Jeff Tillison
Employee of Brownstein Hyatt
Farber Schreck, LLP
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