                                                                                                                           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Precedential or Non-Precedential: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.
