Opinion
Civil Action No. 01-CV-01557.
July 18, 2003.
Thomas C. Sadler, Esq., On behalf of William R. Mawhinney, Jr.
Michael L. Banks, Esq., and Kevin A. Ormerod, Esq., On behalf of Defendants, GMAC Commercial Holding Corporation, GMAC Mortgage Group, Inc., General Motors Acceptance Corporation, and General Motors Corporation.
MEMORANDUM
This matter is before the court on Plaintiff's Motion for Reconsideration, Re-Argument and Relief Pursuant to Fed.R.C.P. 60, from the Orders of May 28, 2003 and the Order of July 1, 2003, which motion was filed July 18, 2003. Plaintiff seeks reconsideration of three Orders of the undersigned.
Defendant GMAC Commercial Mortgage Corporation's Opposition to Plaintiff's Motion for Reconsideration, Re-Argument and Relief was filed July 18, 2003.
On May 23, 2003 we entered an Order dismissing Plaintiff's Motion for a New Trial. On the same day we entered an Order dismissing Plaintiff's Motion for Trial Transcripts. On July 1, 2003 we entered an Order denying plaintiff's Petition for Extension of Time in Which to Obtain Trial Transcripts.
Both May 23, 2003 Orders were filed May 28, 2003.
The July 1, 2003 Order was filed July 11, 2003.
We deny plaintiff's motion to reconsider these three Orders because we lack jurisdiction to consider the motion, the motion is untimely, and the motion is without merit.
Procedural History
On March 1, 2001 plaintiff William R. Mahwinney, Jr., a former Vice President of GMAC Commercial Mortgage Corporation filed a Complaint against four corporations related to his former employer. Mr. Mawhinney, a 64-year-old male, alleged that he was improperly terminated from his position as a Vice President for Special Projects and Development, and replaced by a 38-year-old female.
Plaintiff filed his Complaint in the Court of Common Pleas of Lehigh County, Pennsylvania. On March 30, 2001 defendants removed this matter to the United States District Court for the Eastern District of Pennsylvania. Plaintiff's federal claims were properly before this court on federal question jurisdiction. See 28 U.S.C. § 1331, 1343. This court had supplemental jurisdiction over plaintiff's state law claim. See 28 U.S.C. § 1367. Venue was appropriate because the facts and circumstances giving rise to plaintiff's cause of action occurred in Lehigh County, Pennsylvania, one of the nine counties comprising the United States District Court for the Eastern District of Pennsylvania. See 28 U.S.C. § 118, 1391.
Plaintiff brought causes of action for age discrimination, gender discrimination, and violations of the Pennsylvania Human Relations Act.
42 U.S.C. § 2000e to 2000e-17.
Act of October 27, 1955, P.L. 744, No. 222, §§ 1-13, as amended, 43 P.S. §§ 951-963.
A jury trial was held before the undersigned on February 3, 4, 5, 6, 7, 10 and 11, 2003. At the conclusion of the trial on February 11, 2003, the jury rendered a verdict for defendants. Judgment was entered on the verdict on February 20, 2003.
Trial counsel for plaintiff was Donald P. Russo, Esquire. On March 3, 2003 Albert V.F. Nelthropp, Esquire, entered his appearance on behalf of plaintiff. That same day Plaintiff's Motion for a New Trial was filed. Pursuant to Rule 7.1(e) of the Rules of Civil Procedure for the United States District Court for the Eastern District of Pennsylvania ("Local Rules"), plaintiff had fourteen days from filing his motion for new trial, or until March 17, 2003, to "either (a) order a transcript of the trial by a writing delivered to the Court Reporter Supervisor, or (b) file a verified motion showing good cause to be excused from this requirement." Local Rule 7(e).
In his motion, plaintiff argued that the verdict was against the weight of the evidence. Plaintiff also "reserve[d] the right to file additional grounds supporting the motion after receipt, review and analysis of relevant portions of the trial transcript." Plaintiff's Motion for a New Trial, paragraph 11.
By letter dated May 6, 2003, we requested Attorney Nelthropp to inform the court if plaintiff had ordered a transcript. We indicated that if plaintiff had failed to order a transcript, we would sua sponte grant an extension of the deadline to order a transcript until May 22, 2003. In the letter, we referred to Local Rule 7.1, which required plaintiff to order a transcript. At the time of our May 6, 2003 letter, the Court Reporter Supervisor had received no request for a transcript from plaintiff.
On May 20, 2003, in apparent response to the court's letter, Plaintiff's Petition for Trial Transcripts was filed. Plaintiff's petition did not conform to Local Rule 7.1(e)(a) because the petition was directed to the court and not to the Court Reporter Supervisor. Plaintiff's petition also did not conformed to Local Rule 7.1(e)(b) because it is logically inconsistent to ask to be excused from the transcript requirement, in the act of petitioning for the transcripts.
Nevertheless, we considered Plaintiff's Petition for Trial Transcripts on the merits because it was our intention to order a transcript for plaintiff if plaintiff were financially unable to obtain a transcript, and if the interests of justice so required. See M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001). Plaintiff's petition, however, failed to include any claim that plaintiff was financially unable to pay for a transcript or that the interests of justice required the court to provide plaintiff a transcript.
Because plaintiff failed to conform to Local Rule 7.1(e) and, thus, failed to prosecute the post-trial motion, we dismissed both Plaintiff's Motion for a New Trial and Plaintiff's Motion for Trial Transcripts on May 23, 2003.
On June 3, 2003 Attorney Nelthropp appeared in chambers, unannounced, to discuss the dismissal of plaintiff's petitions. At that time, we instructed Attorney Nelthropp that if he disagreed with our May 23, 2003 Orders, he could file a motion for reconsideration. We also reiterated the requirements of Local Rule 7.1(e), with particular emphasis on the fact that plaintiff's counsel could order a transcript if he merely contacted the Court Reporter Supervisor in the Clerk's Office.
We further indicated to Attorney Nelthropp that because his motion for new trial had been dismissed, a transcript would likely be of little value unless plaintiff filed a motion to reconsider the dismissal Order and obtained reinstatement of his motion for new trial. We also advised counsel that plaintiff would have ten days from the filing of our May 28, 2003 Order, or until June 11, 2003, to file such a motion for reconsideration.
See Fed.R.Civ.P. 6(a) and Local Rule 7.1(g).
Nevertheless, on June 3, 2003, after leaving chambers, plaintiff's counsel filed a Petition for Extension of Time in Which to Obtain Trial Transcripts, instead of a motion for reconsideration. On June 30, 2003 we entered an Order denying this petition because plaintiff did not have a pending post-trial motion for which a transcript might be required.
On July 11, 2003 Thomas C. Sadler, Esquire, entered his appearance on behalf of plaintiff. That same day plaintiff filed his motion for reconsideration, which is presently before the court. On the same day, plaintiff also filed a Notice of Appeal from our May 23, 2003 Orders.
Plaintiff's appeal is untimely. Pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure, an appeal "must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Fed.R.App.P. 4(a). Plaintiff's Notice of Appeal was filed July 11, 2003, which is 44 days after the May 28, 2003 filing date of our May 23, 2003 Orders.
Discussion
Initially, our ability to pass on plaintiff's motion for reconsideration is foreclosed by plaintiff's appeal. "As a general rule, the timely filing of a notice of appeal is an event of jurisdictional significance, immediately conferring jurisdiction on a Court of Appeals and divesting a district court of its control over those aspects of the case involved in the appeal." Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985). Because plaintiff's motion for reconsideration and the appeal involve identical issues (dismissal of plaintiff's motions for new trial and trial transcripts), it appears that we are divested of jurisdiction to rule on the motion for reconsideration unless the motion is preserved for our consideration by Rule 4(a)(4) of the Federal Rules of Appellate Procedure. See Venen, 758 F.2d at 122.Rule 4(a)(4) provides in pertinent part:
(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54 if the Court extends the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 10 days (computed using Federal Rule of Civil Procedure 6(a)) after the judgment is entered.
(B)(i) If a party files a notice of appeal after the court announces or enters a judgment — but before it disposes of any motion listed in Rule 4(a)(4)(A) — the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining order is entered.
Fed.R.App.P. 4(a)(4). Because plaintiff's motion for reconsideration does not fall into the category of any of the motions enumerated in Rule 4(a)(4)(A), the appeal from our May 23, 2003 Orders is not postponed pursuant to Rule 4(a)(4)(B) pending our disposition of the motion to reconsider. Fed.R.App.P. 4(a)(4).
As a result, plaintiff's appeal from our May 23, 2003 Orders divests us of jurisdiction to rule on plaintiff's motion for reconsideration.
Moreover, the motion for reconsideration fails because it is untimely. "Motions for reconsideration or reargument shall be served and filed within ten (10) days after the entry of the judgment, order, or decree concerned." Local Rule 7(g).
Our May 23, 2003 Order denying Plaintiff's Motion for New Trial was filed on May 28, 2003. Plaintiff's motion for reconsideration of that Order was filed on July 11, 2003. Therefore, plaintiff's motion was filed 44 days after our Order was filed, which was 30 days after the deadline to file a motion for reconsideration. Plaintiff's motion fails to identify any reason why the court should accept this late submission.
We filed our Order denying Plaintiff's Motion for New Trial on May 28, 2003. Plaintiff had ten days from the filing of our Order in which to file a motion for reconsideration. See Local Rule 7(g). In accordance with Rule 6(a) of the Federal Rules of Civil Procedure, intermediate Saturdays and Sundays are excluded from the commutation of deadlines less than eleven days. Thus, plaintiff had until Wednesday, June 11, 2003 to file a motion for reconsideration. Plaintiff's motion for reconsideration was filed on July 11, 2003, which is 30 days after June 11, 2003.
Even if we ignore the foregoing procedural irregularities, plaintiff's motion for reconsideration, nevertheless, fails on the merits. "The purpose for 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). "Such motions will only be granted where: (1) an intervening change in the law has occurred; (2) new evidence not previously available has emerged; or (3) the need to correct a clear error of law or prevent a manifest injustice arises." Sinanan v. Mechling, Civ. No. 01-6210, 2002 U.S. Dist. LEXIS 15148, *1; 2002 WL 1832821, *1 (E.D. Pa. August 5, 2002) (citations omitted).
Plaintiff argues that the failure of former counsel for plaintiff to conform to the Local Rules constitutes mistake, inadvertence or excusable neglect. This argument appears to fall within the third category whereby the court may grant reconsideration to prevent manifest injustice. While we are not unsympathetic to Mr. Mawhinney, the failure of former appellate counsel to familiarize himself with this court's rules of procedure or to follow the guidance offered by this court does not constitute manifest injustice under the circumstances.
There is no indication that plaintiff attempted to prosecute his post-trial motion for new trial in good faith after he filed it. Unsolicited, we gave plaintiff an extension in which to perfect and prosecute his post-trial motion by ordering a transcript. In our letter to plaintiff's former counsel we referred to the Local Rule which specifies what plaintiff had to do to obtain a transcript. In total, we afforded plaintiff 66 days in which to order a transcript.
At some point there must be finality. The within civil action was initiated on March 30, 2001. The matter was transferred to our docket from the docket of another judge on December 9, 2002. The jury rendered its verdict on February 11, 2003. Plaintiff has repeatedly ignored the Local Rules in pursuing his post-trial motions. Under the circumstances, it is unfair to defendant to further delay final resolution of this matter.
Conclusion
For all the foregoing reasons, we deny Plaintiff's Motion for Reconsideration, Re-Argument and Relief Pursuant to Fed.R.C.P. 60, from the Orders of May 28, 2003 and the Order of July 1, 2003.