Marcangelo v. Boardwalk Regenc ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
2-9-1995
Marcangelo vs. Boardwalk Regenc
Precedential or Non-Precedential:
Docket 94-5445
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Recommended Citation
"Marcangelo vs. Boardwalk Regenc" (1995). 1995 Decisions. Paper 37.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/37
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 94-5445
____________
MICHAEL MARCANGELO,
Appellant
v.
BOARDWALK REGENCY d/b/a CAESARS ATLANTIC CITY a/k/a/
CAESARS BOARDWALK REGENCY HOTEL CASINO,
Appellee
v.
IGT, a Nevada Corporation,
Appellee
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. No. 93-cv-04647)
____________
Submitted Pursuant to Third Circuit Rule
January 25, 1995
BEFORE: MANSMANN, HUTCHINSON, and WEIS, Circuit Judges
Filed February 9, 1995
____________
Morris M. Goldings, Esquire
Alice E. Moore, Esquire
Sally A. Morris, Esquire
MAHONEY, HAWKES & GOLDINGS
The Heritage on the Garden
75 Park Plaza
Boston, MA 02116
Kenneth F. Hense, Esquire
McGlynn, Reed, Hense & Pecora
Route 88 & Herbertsville Road
Point Pleasant, NJ 08742
Attorneys for Appellant
John M. Donnelly, Esquire
Mary Beth Clark, Esquire
JOHN M. DONNELLY, P.C.
26 S. Pennsylvania Avenue
Atlantic City, NJ 08401
Attorneys for Boardwalk Regency Corporation, Appellee
Guy S. Michael, Esquire
Brown & Michael
1125 Atlantic Avenue
Suite 518
Atlantic City, NJ 08401
Attorney for IGT, Appellee
____________
OPINION OF THE COURT
____________
WEIS, Circuit Judge.
In this case, the clerk of the district court sent
timely notice that a judgment had been entered to the plaintiff's
local counsel but not to the out-of-state lawyer who had
primarily handled the litigation. Because the time for appeal
had expired, the out-of-state lawyer requested an extension. In
denying the motion, the district court read the applicable
procedural rules as precluding relief when one of a party's
lawyer had received notice. We agree and affirm.
Plaintiff was a patron at the defendant's gambling
casino in Atlantic City, New Jersey, where he played a slot
machine called "Pokermania." The machine provided for jackpots
when the screen displayed images of cards that would be winning
hands in a poker game, among them a royal flush.
While plaintiff was playing, the machine displayed an
image of these five cards, in order: Ace, King, Queen, Jack, and
Ten of Hearts. He then asked for payment of the primary
progressive jackpot, at that time worth $187,736.60, but the
defendant paid only the secondary jackpot of $1,046.42.
Defendant took the position that a sign on the machine stated
that the large award was for a "sequential heart royal flush (10,
J., Q, K, A)" and that, because the plaintiff's winning hand was
in the reverse order (Ace, King, Queen, Jack, Ten), he did not
qualify.
Plaintiff filed a diversity suit in the district court
of New Jersey, alleging breach of contract, fraud, and violations
of the state consumer fraud act. The district court granted
summary judgment to defendant, concluding that plaintiff did not
have a private right of action under the state's Casino Control
Act, that the common law claim was preempted by the Act, and that
plaintiff was not entitled to recover in any event.
The judgment was docketed on March 30, 1994, and the
court clerk sent timely notice to the plaintiff's local counsel,
Kenneth F. Hense, of the law firm of McGlynn Reed Hense & Pecora,
whose office was located in Point Pleasant, New Jersey. However,
the clerk did not send a notice to the plaintiff's principal
counsel, Morris M. Goldings, of the law firm of Mahoney, Hawkes &
Goldings, whose office was located in Boston, Massachusetts.
Mr. Goldings first learned of the entry of the summary
judgment on June 10, 1994 in a telephone conversation with the
defendant's lawyer. After verifying the fact that his local
counsel, Mr. Hense, had indeed received the notice but had not
communicated that information, Mr. Goldings filed a motion on
June 17, 1994, to reopen the time for appeal pursuant to Fed. R.
App. P. 4(a)(6).
In an affidavit attached to his motion, Mr. Goldings
explained that he had been admitted as counsel pro hac vice, had
provided his name and address on all papers filed in the case,
had received copies of prior notices directly from the clerk, and
had appeared before the court. Relying on the past practice of
the clerk, he had expected to be directly notified of court
orders.
The district court denied the motion, observing that
Local Rule 4(C) provides that the clerk's office will send copies
of court orders only to local counsel, even when out-of-state
counsel has appeared pro hac vice. The Rule thus imposes on
local counsel the responsibility for transmitting information to
out-of-state counsel. The court also relied on the text of Fed.
R. App. P. 4(a)(6) that the notice provision refers to "a party,"
not counsel.
Plaintiff has appealed both the order denying the
extension of time and the entry of summary judgment. He contends
that, in the absence of prejudice to the defendant, the district
court abused its discretion in refusing to enlarge the time for
filing an appeal.
Federal Rule of Appellant Procedure 4(a)(6) provides as
follows:
"The district court, if it finds (a) that a
party entitled to notice of the entry of a
judgment or order did not receive such notice
from the clerk or any party within 21 days of
its entry and (b) that no party would be
prejudiced, may, upon motion filed within 180
days of entry of the judgment or order or
within 7 days of receipt of such notice,
whichever is earlier, reopen the time for
appeal for a period of 14 days from the date
of entry of the order reopening the time for
appeal."
The Committee notes explain that this amendment, which was
adopted in 1991, provides "a limited opportunity for relief"
where a party has not received notice from the clerk.
Before the Rule was amended, parties had lost the right
to appeal in a number of instances because of clerks' failures to
send timely notice. To mitigate this harsh result, some district
courts resorted to the use of the "excusable neglect" language in
Fed. R. App. P. 4(a)(5) or Fed. R. Civ. P. 60(b)(6). These
efforts, however, were not favorably received by appellate
courts, influenced to some extent by the compelling need for
finality in litigation. See, e.g., Alaska Limestone Corp. v.
Hodel, 799 F.2d 1409 (9th Cir. 1986); Pedereaux v. Doe, 767 F.2d
50 (3d Cir. 1985); Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d
226 (4th Cir. 1981); Gooch v. Skelly Oil Co., 493 F.2d 366 (10th
Cir. 1974).
Fed. R. App. P. 4(a)(6) provides a mechanism for
granting an extension of time when a party would be unfairly
deprived of an appeal because of the failure of a court clerk.
The procedure is not freely available because it was designed not
to unduly affect the time when judgments become final. As the
Committee Note stresses, the "provision establishes an outer time
limit of 180 days" within which a party who has not received
notice of the entry of a judgment may request a limited
extension. As a way to reduce the 180-day period, however, the
Rule provides that notice may be sent to adverse parties by a
party who has learned of the judgment. The Committee Note
encouraged winning parties to follow this practice in order to
prevent claims of injustice by adverse parties that received no
notice from the clerk's office.
The careful balancing of interests revealed by the text
and the Committee Note is a compelling reason for adherence to
the language of the rule. It is pertinent also that Congress
amended 28 U.S.C. § 2107(c), in accordance with the Committee's
suggestion, to reiterate the text of Rule 4(a)(6). Thus, the
procedure has both specific statutory and Rule authority.
The language of the Rule leaves no doubt as to the
result to be reached here. It is a "party" not given notice who
is eligible for relief. Here, the plaintiff was represented by
two law firms, either of whom were authorized to receive notices
on behalf of the client. A "party is deemed bound by the acts of
his lawyer-agent and is considered to have notice of all facts,
notice of which can be charged upon the attorney." Pioneer
Investment Services Co. v. Brunswick Assoc., 113 S. Ct. 1489,
1499 (1993) (internal quotations omitted).
Regrettably, the lack of communication that occurred
here is not a unique circumstance. In Alaska Limestone, 799 F.2d
at 1412, the Court held that "receipt of notice by one of two
counsel of record, as here, sufficiently informs the party of the
entry of judgment." The argument that relief should be granted
when the party's "principal" counsel did not receive notice was
rejected in Gooch, 493 F.2d at 370; see also Borowski v. DePuy,
Inc., 876 F.2d 1339, 1341 (7th Cir. 1989) (local counsel's
failure to forward a report was a "run of the mill oversight,"
rather than "excusable neglect"). Although these rulings were in
cases citing Fed. R. App. P. 4(a)(5) and Fed. R. Civ. P. 60(b),
the holdings are equally applicable to Fed. R. App. P. 4(a)(6).
Plaintiff's counsel laments that defendant's opposition
to the motion to extend the time is inconsistent "with the spirit
of professional collegiality" which was the norm in the practice
of law twenty years ago. We do not approve of the "hardball"
tactics unfortunately used by some law firms today. The
extension of normal courtesies and exercise of civility expedite
litigation and are of substantial benefit to the administration
of justice.
The Code of Trial Conduct adopted by the American
College of Trial Lawyers in 1987 expresses a desirable standard:
"To opposing counsel, a lawyer owes the duty of
courtesy, candor in the pursuit of the truth,
cooperation in all respects not inconsistent with [the]
client's interests and scrupulous observance of all
mutual understandings.
. . .
The lawyer, and not the client, has the sole
discretion to determine the accommodations to be
granted opposing counsel in all matters not directly
affecting the merits of the cause or prejudicing the
client's rights, such as extensions of time,
continuances, adjournments and admission of facts."
Code of Trial Conduct pmbl, § 12.
The case before us is, however, one in which counsel's
failure to agree to an extension had no relevance. The time
limits provided by Fed. R. App. P. 4(a)(6) and 28 U.S.C. § 2107
are "mandatory and jurisdictional," and the courts are required
to dismiss untimely appeals sua sponte. Browder v. Director,
Ill. Dep't of Corrections, 434 U.S. 257, 264 (1978). The parties
may not confer jurisdiction on the Court by consent.
Consequently, even in the absence of opposition, the motion could
not have been granted.1
1
. In any event, as the Court of Appeals observed in Zimmer St.
Louis, Inc. v. Zimmer Co., 32 F.3d 357, 361 (8th Cir. 1994), in
similar circumstances, because the appellant's arguments on the
merits of the claim against the appellee are not persuasive, an
affirmance could be the only result if we were to reach the
merits.
Accordingly, the order of the district court will be
affirmed.