Kraus v. Consolidated Rail Corp.

• Decision Date: 12 March 1990
• Docket Number: Nos. 89-1901,s. 89-1901
• Citation: 899 F.2d 1360
• Parties: William KRAUS, Appellant, v. CONSOLIDATED RAIL CORPORATION. Ronald SHOEMAKER, Appellant, v. CONSOLIDATED RAIL CORPORATION. Wayne OWENS, Appellant, v. CONSOLIDATED RAIL CORPORATION. Charles BARBER, Appellant, v. CONSOLIDATED RAIL CORPORATION. through 89-1904. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 1360

899 F.2d 1360

16 Fed.R.Serv.3d 1037

William KRAUS, Appellant, v. CONSOLIDATED RAIL CORPORATION.

Ronald SHOEMAKER, Appellant, v. CONSOLIDATED RAIL CORPORATION.

Wayne OWENS, Appellant, v. CONSOLIDATED RAIL CORPORATION.

Charles BARBER, Appellant, v. CONSOLIDATED RAIL CORPORATION.

Nos. 89-1901 through 89-1904.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

March 12, 1990.

Decided April 6, 1990.

J. Michael Farrell, Philadelphia, Pa., for appellants William Kraus, Ronald Shoemaker, Wayne Owens, and Charles Barber.

Jonathan F. Altman, Philadelphia, Pa., for appellee.

Before SLOVITER, BECKER, and STAPLETON, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Four Conrail employees brought actions under the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60 (1982), against the Consolidated Rail Corporation (Conrail), their railroad employer, alleging that Conrail's policies and practices in eliminating manpower and increasing their responsibilities required them to work in an environment that was unreasonably stressful and that, as a result, each suffered various illnesses, injuries and disabilities. The district court granted Conrail's motion for summary judgment, holding that plaintiffs did not make a case for intentional infliction of emotional distress because the conduct alleged did not meet the outrageousness test for such torts as enunciated in section 46(1) of the Restatement (Second) of Torts and Comment d thereof, and that plaintiffs' claim for negligent infliction of emotional distress failed to meet the requirements of such a claim. The employees appeal, arguing that the evidence was sufficient to create a jury issue for recovery for the tort of negligent infliction of emotional distress under the FELA.

Conrail filed a motion to dismiss the plaintiffs' consolidated appeals on the ground that the Notice of Appeal was untimely. We turn to that threshold question.

II.

The district court granted Conrail's motion for summary judgment on August 28, 1989 and the judgment was entered on that date. The docket sheets also reflect that the Memorandum of Decision and Order was mailed to the parties on that date. Counsel for the appellants, J. Michael Farrell, filed an affidavit in response to the motion to dismiss the appeal. Farrell's affidavit states that on September 21, 1987 and on March 24, 1988, when he filed the complaints on behalf of William Kraus and Ronald Shoemaker respectively, his address was 230 S. Broad Street, Philadelphia, PA., and that on June 28, 1988 and July 29, 1988, when he filed the complaints on behalf of Wayne Owens and Charles Barber respectively, his address was 1420-22 Chestnut Street, Philadelphia, PA. On August 28, 1989, when the district court's Memorandum and Order were filed, Farrell's office was in neither of these prior locations but instead was located at 718 Arch Street, Philadelphia, PA., a place to which he had moved in the interim. Farrell attached the envelope showing that the Memorandum Opinion granting summary judgment was sent by the court to 230 S. Broad St., that it was then forwarded by the post office to 1420-22 Chestnut St., and then finally was forwarded to the Arch Street address. Farrell states that he did not receive a copy of it in the mail at his present address until September 7, 1989 at approximately 1:00 p.m.

Farrell contacted the law clerk of district court Judge McGlynn "within moments" thereafter, expressed his interest in filing a motion to reconsider, amend or modify the Order, and "indicated to her [his] concern that it be done timely so as to toll the 30-day period to file notice of appeal." His affidavit continues: "I indicated that I would immediately begin preparing my Motion to Reconsider but that I would be unable to file it today and asked her to bring these facts to the attention of Judge McGlynn and to ask that he instruct me how to proceed in order to insure the timeliness of my motion and the tolling of the appellate period." The law clerk called back and stated that the Judge wanted a motion requesting a 10-day extension of time to be filed "before the end of the day so that [the judge] could execute same to insure the timely filing of my Motion to Reconsider," and she instructed Farrell to confirm that defense counsel had no opposition to this extension.

Farrell then prepared a letter stating the facts of his change of residence and on the same day, September 7, 1989, the district court signed an order extending plaintiffs' time within which to file a motion for reconsideration for ten days until September 18, 1989 upon consideration of plaintiff's Motion for Extension of Time "and for good cause shown." On September 18, Farrell filed a motion on behalf of plaintiffs to reconsider and/or amend the judgment, which the district court denied on October 3, 1989. Plaintiffs filed their notices of appeal on October 19, 1989, more than thirty days after the entry of summary judgment but within thirty days of the district court's order denying the motion to reconsider.

III.

In its motion to dismiss, Conrail claims that the ten day time period established by Fed.R.Civ.P. 59(e) for filing a motion to alter or amend the judgment is jurisdictional, and that the district court has no power to enlarge it. That is undoubtedly correct. Rule 6(b), which provides that the district court may enlarge the time for acts required under the Rules, explicitly provides that the district court "may not extend the time for taking any action under Rule[ ] ... 59(e)." Fed.R.Civ.P. 6(b). Thus the district court did not have the power to enlarge the time in which the appellants could file their Rule 59(e) motion. See Browder v. Director, Dep't. of Corrections of Illinois, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978) (District Court "lost jurisdiction ten days after entry of judgment to grant relief under Rule ... 59.") Plaintiffs' Rule 59(e) motion was untimely, ¹ and, unless there is some basis for an exception, did not toll the 30-day time period for filing notices of appeal. See De la Fuente v. Central Electric Coop., Inc., 703 F.2d 63, 65 (3d Cir.1983).

Plaintiffs argue that the Supreme Court has created such an exception in the "unique circumstances" exception under which a litigant who relies on an order issued by the district court may, where no objection has been raised by another party, still perfect his or her appellate rights by filing a Rule 59 motion within the period extended by the court's order. They rely on two Supreme Court cases for this proposition--Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam), and Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964) (per curiam).

In Thompson, the petitioner served notice of his Rules 52 and 59 motion in 12, not 10, days. The district court stated that the motion for a new trial was made "in ample time." 375 U.S. at 385, 84 S.Ct. at 397. The petitioner, after denial of these motions, then filed a notice of appeal that was timely if measured from the denial of the Rule 52 and 59 motions, but not timely if measured from the date of the original judgment. The government argued, as Conrail does here, that the untimely motions should have no effect and that the notice of appeal was filed late. The Court of Appeals dismissed the appeal. The Supreme Court reversed, noting that if properly done, the filing of the motions would have stayed the time period for filing an appeal. It referred to the fact that the petitioner relied on the statement of the district court, and concluded that these "unique circumstances" required treating the notice of appeal as timely. Id. at 387, 84 S.Ct. at 398.

In Wolfsohn, decided the same year, the Court, on the authority of Thompson and Harris Truck Lines v. Cherry Meat Packers, 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) (per curiam) (party could rely on district court's finding of "excusable neglect" to extend time for filing notice of appeal), summarily reversed without opinion the judgment of the Court of Appeals dismissing a late appeal when the district court had extended the 10-day period of Rule 59(b). The dissent in Wolfsohn objected that "this Court has given trial judges the de facto power to grant extensions of time, directly contra to the definite requirements of Rules 52(b) and 59 and the command of Rule 6(b)." 376 U.S. at 204, 84 S.Ct. at 699. In the twenty-five years since these cases, no Supreme Court case has followed their precedent.

In contrast to these cases, the Court has taken a restrictive view of the district court's power to extend a litigant's time to perform a jurisdictional act. In Browder v. Director, Dep't. of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), the state failed to file a notice of appeal within 30 days after the district court entered its order granting a petition for habeas corpus. In holding that the state's appeal was untimely, the Court held that the state's motion to stay the execution and to conduct an evidentiary hearing, which it had filed 28 days after the order, did not constitute a timely Rule 59 motion even though the district court had granted the motion to stay and held a hearing before it denied the state's motion on the merits. The Court noted that the state's motion was untimely under the Rules and therefore could not toll the running of time to appeal under Fed.R.App.P. 4. Id. at 267, 98 S.Ct. at 562. The Court explained that the 1946 amendments to the Rules of Civil Procedure abolishing terms of court changed the common law rule under which a court had the power to alter or amend its own judgments during the term of court in which the original judgment was entered. The amended Rules "confined the power of a district court to alter or amend a final order to the time period stated in Rules 52(b) and 59." Id. at 271, 98 S.Ct. at...