Howard Rubinsky v. Ahmed Zayat

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, KRAUSE and ROTH, Circuit Judges. Total Pages: 4.

Case: 15-3901

Document: 003112503048

Page: 1

Date Filed: 01/04/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3901
___________
HOWARD RUBINSKY,
Appellant
v.
AHMED ZAYAT,
also known as EPHRAIM ZAYAT
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2:14-cv-01540)
District Judge: Honorable William J. Martini
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 18, 2016
Before: CHAGARES, KRAUSE and ROTH, Circuit Judges
(Opinion filed: January 4, 2017)
___________
OPINION*
___________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Date Filed: 01/04/2017

PER CURIAM
Howard Rubinsky appeals pro se from the District Court’s orders entering
summary judgment against him and denying reconsideration of that ruling. For the
reasons that follow, we will affirm those orders.
I.
In March 2014, Rubinsky commenced this action by filing a counseled complaint
in the District Court against Ahmed Zayat. The complaint, brought pursuant to the
District Court’s diversity jurisdiction, see 28 U.S.C. § 1332(a), alleged claims for breach
of contract and unjust enrichment. Zayat ultimately moved for summary judgment on
several grounds, one of which was that Rubinsky’s claims were time-barred under New
Jersey’s governing six-year statute of limitations, see N.J. Stat. Ann. § 2A:14-1, because
they accrued no later than 2005 and expired no later than 2011. In opposing that motion,
Rubinsky argued that the claims were timely because they did not actually accrue until
April 2008 (just under six years before he filed his complaint). On June 4, 2015, the
District Court granted Zayat’s motion for summary judgment, rejecting Rubinsky’s
argument and agreeing with Zayat that the claims were time-barred because they accrued
no later than 2005. Rubinsky then timely moved the District Court to reconsider that
ruling. On November 2, 2015, the District Court denied reconsideration. Rubinsky, now
proceeding pro se, appeals from those two District Court orders.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
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plenary review over the District Court’s grant of summary judgment. See Lomando v.
United States, 667 F.3d 363, 371 (3d Cir. 2011). Summary judgment is appropriate when
“the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although the nonmovant’s evidence “is to be believed, and all justifiable inferences are to be drawn in his
favor in determining whether a genuine factual question exists,” summary judgment
should be granted “unless there is sufficient evidence for a jury to reasonably find for the
nonmovant.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011)
(internal quotation marks omitted). We review the District Court’s denial of
reconsideration for abuse of discretion, exercising de novo review over the District
Court’s legal conclusions and reviewing its factual findings for clear error. Howard Hess
Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir. 2010).
Rubinsky raises two arguments in support of his challenge to the two District
Court orders at issue here. First, he contends that the claims in his complaint were timely
filed because the statute of limitations was tolled pursuant to N.J. Stat. Ann. § 2A:14-22
and the doctrine of equitable tolling. Second, he reiterates his argument that his claims
are timely because they did not accrue until April 2008. Neither of these arguments
entitles him to relief here. Rubinsky’s tolling argument has been waived because he did
not present it to the District Court in the first instance. See Tri-M Group, LLC v. Sharp,

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638 F.3d 406, 416 (3d Cir. 2011).1 As for Rubinsky’s accrual argument, for substantially
the reasons provided by the District Court in its opinions accompanying its two orders,
we agree with the District Court that his claims accrued no later than 2005. Because the
six-year limitations period expired well before Rubinsky filed his complaint in 2014, the
District Court correctly concluded that his claims were time-barred and that Zayat was
entitled to summary judgment.
In light of the above, we will affirm the District Court’s June 4, 2015 and
November 2, 2015 orders.

1

Even if Rubinsky had preserved his tolling argument, we would reject it on its merits.
Section 2A:14-22 provides for tolling of the limitations period if (1) the defendant is not
a resident of New Jersey when the claim accrues or he is not residing in New Jersey
during the statutory period, and (2) “it appears . . . that, after diligent inquiry and effort,
long-arm service cannot be effectuated.” N.J. Stat. Ann. § 2A:14-22a. In those
circumstances, the limitations period is tolled during the periods of non-residence. See
id. Rubinsky avers that Zayat was periodically out of the United States between 2002
and 2005, and that Zayat spent the summer of 2007 in California. Assuming for the sake
of argument that these averments warranted tolling the limitations period (1) through the
end of 2005, and (2) during the summer of 2007, Rubinsky’s 2014 complaint would still
be untimely by roughly two years. As for Rubinsky’s equitable tolling argument, he has
not demonstrated that any of the grounds for that relief are present in this case. See
F.H.U. v. A.C.U., 48 A.3d 1130, 1145 (N.J. Super. Ct. App. Div. 2012) (explaining that
“[e]quitable tolling is traditionally reserved for limited occasions,” including when
(1) “the defendant has actively misled the plaintiff,” (2) “the plaintiff has in some
extraordinary way been prevented from asserting his rights,” or (3) “the plaintiff has
timely asserted his rights mistakenly in the wrong forum”) (certain quotation marks
omitted) (quoting Kocian v. Getty Ref. & Mktg. Co., 707 F.2d 748, 753 (3d Cir. 1983)).
4