Opinion
No. 02-CV-8910
March 7, 2003
MEMORANDUM AND ORDER
Plaintiff Michael J. Kabacinski ("Kabacinski") now moves for reconsideration of the order of this court, dated February 13, 2003, granting Defendant Bostrom Seating's ("Bostrom's") motion to dismiss this case, in which Mr. Kabacinski seeks relief pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.Cons.Stat. §§ 955 and 962. For the reasons outlined below, we deny Plaintiff's motion for reconsideration.
BACKGROUND
Defendant Bostrom removed this action to federal court in December 2002 and thereafter filed a Motion to Dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(3), on January 6, 2003. Bostrom amended its motion to dismiss on January 17, 2003. Before Kabacinski's response to that motion came due, he requested an extension until February 10, 2003 to file his memorandum in opposition. To this end, Kabacinski's counsel prepared a stipulation, forwarded it to Bostrom's counsel for signature, and filed it with this court. We approved the stipulation by order dated January 24, 2003. Not insignificantly, that order clearly announced that no further extensions would be permitted. On February 10, knowing that Kabacinski's memorandum in opposition to Defendant's motion to dismiss had not been filed, Kabacinski's counsel decided to "serve" the required court filing by United States mail. (Pl.'s Mot. to Reconsider, Ex. A, Aff. of Pl.'s Counsel, Donald Russo, ¶¶ 5-6).
The Affidavit filed by Kabacinski in support of his Motion for Reconsideration does not properly allege that his counsel mailed the required filing, and we have no other evidence that the document was in fact mailed. The Affidavit states that "Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss in the case at bar was mailed on Monday, February 10, 2003 . . ." (Pl.'s Mot. to Reconsider, Ex. A, Aff. of Pl.'s Counsel, Donald Russo, ¶ 6). In the same Affidavit however, Plaintiff's counsel states he was in court when the memorandum was due; he then telephoned his assistant and instructed the assistant to mail the document. Id. at ¶¶ 3 and 4. Taken together, the paragraphs show that Plaintiff's counsel has no personal knowledge regarding whether Kabacinski's memorandum was mailed by his assistant on that date. Affidavits not based on personal knowledge are insufficient to establish material facts. Maldonado v. Ramirez, 757 F.2d 48, 50-51 (3d Cir. 1985);Hotel and Rest. Employees' Alliance v. Allegheny Hotel Co., 374 F. Supp. 1259, 1262 (W.D.Pa. 1974). we could deny Kabacinski's motion for this deficiency alone. For the sake of thoroughness, we proceed with our analysis.
Because Kabacinski did not file a timely memorandum in opposition, we granted Defendant's Motion to Have Defendant's Motion to Dismiss Deemed as Unopposed by order dated February 13, 2003. Accordingly, that Order also granted Defendant's Motion to Dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(3). We then dismissed Count III of Plaintiff's Complaint, the PHRA claim, with prejudice. The remaining federal claims were dismissed without prejudice to Kabacinski's right to refile in the appropriate United States District Court in the state of Alabama.
Plaintiff's Brief in Opposition to Defendant's Amended Motion to Dismiss Plaintiff's Complaint was not filed until February 13, 2003. Local Rule of Civil Procedure 7.1(c) provides that a court may treat a motion as uncontested in the absence of a timely response, except in cases of summary judgment.
DISCUSSION
The purpose of a motion for reconsideration is "to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Generally, a motion for reconsideration will only be granted on one of the following three grounds: "(1) there has been an intervening change in controlling law; (2) new evidence, which was not previously available, has become available; or (3) it is necessary to correct a clear error of law or to prevent manifest injustice." Smith v. City of Chester, 155 F.R.D. 95, 96-97 (E.D.Pa. 1994); Jubilee v. Horn, 959 F. Supp. 276, 278 (E.D. Pa. 1997).
Plaintiffs motion for reconsideration specifically alleges none of the recited grounds. Instead, counsel for Plaintiff argues that "as a result of the interconnection between F.R.C.P. 6(e) and Local Rule of Civil Procedure 7.1(c)," Plaintiff has filed a timely response to Defendant's motion to dismiss. Counsel for Plaintiff makes this argument, incredibly, despite the extension already granted by this court and the stipulation- that he himself proposed and signed-setting a deadline of February 10, 2003 for the filing of Kabacinski's response. We consider Plaintiff's procedural argument before addressing the merits of Defendant's motion to dismiss.
A. Rule 6(e) Does Not Provide an Additional Three Days for Plaintiff to File a Response with this Court Where Plaintiff Has Himself Proposed a Deadline
Kabacinski's memorandum forwards an unclear argument that is susceptible to two interpretations. Bostrom contends that Kabacinski's position is that Federal Rule of Civil Procedure 6(e) provided an additional three days to file the memorandum in opposition because counsel allegedly mailed it to Clerk of Court. If Kabacinski relies on this argument, he is clearly wrong. Rule 6(e) provides as follows:
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days shall be added to the prescribed period.
Fed.R.Civ.P. 6(e). The plain language of the rule states that the three-day extension is triggered by the receipt of a notice or other paper upon a party. Simply because a party chooses to send a document by mail for filing does not create a three-day grace period. See Priest v. Rhodes, 56 F.R.D. 478, 479 (N.D.Miss. 1972) (finding that defendant was not entitled to same three-day extension for requesting a jury trial as plaintiff because defendant was the party who had served the triggering document).
The second and more likely interpretation of Kabacinski's argument is equally without merit. We understand Kabacinski to argue that he had an additional three days to respond to Bostrom's Motion to Dismiss Plaintiff's Complaint because Bostrom allegedly mailed that document to him. Kabacinski urges us to accept that the three-day extension remained available despite the intervening stipulation that he himself proposed and signed, enlarging his response period to February 10, 2003, beyond the fourteen-day period set forth by Local Rule 7.1(c). Kabacinski also contends that the order of this court approving the stipulation did not alter the applicability of Rule 6(e) to the final deadline we imposed. This is not correct.
Aside from the opacity of the brief submitted by Kabacinski, we can understand why Bostrom's did not focus on this argument. The Certificate of Service attached to Kabacinski's Motion for Reconsideration as Exhibit C states that Plaintiff's Brief in Opposition to Defendant's Amended Motion to Dismiss was served by mail upon counsel for Bostrom. But counsel for Kabacinski does not properly establish that Bostrom's Motion to Dismiss was served upon him by mail, the action necessary to invoke the extension of Rule 6(e).
Although Kabacinski cites a number of cases for support, they actually counsel against his position. In particular, we address Albright v. Virtue, 273 F.3d 564 (3d Cir. 2001) (Becker, C.J.). In Albright, the plaintiff contended that Rule 6 provided an extended period to file a motion for reconsideration. 273 F.3d at 570. Upholding the decision of the district court to deny the motion as untimely, the Third Circuit reiterated its holding in an earlier case that Rule 6(e) does not apply to Rule 59(e) motions for reconsideration. Id. (citing Adams v. Trustees of the New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863 (3d Cir. 1994)). The Albright case also recognized the more generalized proposition that Rule 6(e) does not apply to time periods beginning with the filing in court of a judgment or order. Id. (citing 1 James Moore, et al., Moore's Federal Practice § 6.053[3], at 6-35 (3d ed. 1998)).Albright therefore provides an argument against Kabacinski's position, because the time period for filing in this case was established by order of this court consistent with the stipulation of the parties. We recognize that originally, Local Rule 7.1(c) provided the appropriate schedule for a response. If Bostrom served its motion to dismiss upon Kabacinski by mail-which has not been shown-it is correct that Rule 6(e) would apply. But it is wholly unreasonable for Kabacinski to argue that the intervening stipulation and order had no effect upon the availability of Rule 6(e)'s three-day extension.
Kabacinski also ignores the relevant discussion of Mosel v. Hills Dep't Store, Inc., 789 F.2d 251 (3d Cir. 1986). That case held that Rule 6(e) did not apply to extend the ninety day period following the receipt of a right-to-sue letter from the EEOC within which an employee was required to file a discrimination action. 789 F.2d at 252-53. The court explained that the rule "applies only where a time period is measured from the date of service by mail, and allows a party so served additional time to respond, in order to account for the time required for delivery of the mail." Id. at 253. In the present case, we explicitly altered the date that Kabacinski's memorandum in opposition fell due, thereby obviating any delay caused by the time required for delivery of the mail. And once again we repeat that Kabacinski's counsel requested this deadline. We allowed him to depart from the usual schedule of filing, complete with Rule 6(e) considerations, to take advantage of an even more lenient deadline.
Accordingly, we find neither version of Kabacinski's argument for reconsideration persuasive.
B. Defendant's Motion Would Have Succeeded on Its Own Merits
Regarding Kabacinski's federal claims, Bostrom argued that they should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(3) based on improper venue. Venue for the ADA is governed by 42 U.S.C. § 2000-e-5 (f)(3). Venue for ADEA claims is governed by 28 U.S.C. § 1391. When ADA and ADEA claims are present simultaneously, a lawsuit must be filed in the judicial district where venue is proper for both claims. See Kravitz v. Institute for Int'l Research. Inc., Civ. No. 92-5045, 1993 U.S. Dist. LEXIS 15669 at *3 (E.D.Pa. Nov. 5, 1993).
42 U.S.C. § 2000-e-5 (f)(3) states that an ADA case may be brought (1) in any judicial district in the state in which the unlawful employment practice is alleged to have been committed, (2) in the judicial district in which the employment records relevant to such practice are maintained and administered, or (3) in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. The parties agree that Bostrom closed its Pennsylvania facility before Kabacinski was dismissed from his employment in North Carolina. Accordingly, under the above categories, venue would not be proper in Pennsylvania for Kabacinski's case.
We dismissed Kabacinski's claim under the PHRA, 43 Pa.Cons.Stat. §§ 955 and 962, with prejudice because Bostrom was not an employer under the terms of the act. Section 954 provides that "the term 'employer' includes . . . any person employing four or more persons within the Commonwealth . . . ." The law provides that a cause of action under the PHRA cannot be brought against an entity that does not employ the requisite four people. See Jones v. School District of Philadelphia, 19 F. Supp.2d 414 (E.D.Pa. 1998). The prohibited discriminatory practice in this case concerned Kabacinski's dismissal, an action that occurred after Bostrom closed its Allentown, Pennsylvania facility. When the facility closed, Bostrom ceased to employ at least four persons in Pennsylvania.
Finally, we note that Kabacinski argues that we should reconsider our order to avoid depriving him of a remedy. See Swierkiewicz v. Sorema. N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). But as we emphasized in our order dismissing his case, he may refile in the appropriate judicial district and is not being deprived of a remedy.
CONCLUSION
The order of this court, dated February 13, 2003, properly dismissed Kabacinski's claims. Accordingly, we deny his motion for reconsideration.