                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2007

DiGenova v. Baker
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3255




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Recommended Citation
"DiGenova v. Baker" (2007). 2007 Decisions. Paper 1796.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1796


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DLD-77                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 06-3255


                            JOSEPH C. DIGENOVA,
                                and other Banquet
                             Server Extras Local 274

                                          v.

         PRESIDENT BOB BAKER; VICE PRESIDENT PAT COUGLIN;
           ARA/SFS; CHIPS UNION; TEMP AGENCIES VARIOUS;
                        BEST PERSONNEL, INC.

                                   Joseph DiGenova,
                                            Appellant


                  On Appeal From the United States District Court
                     For the Eastern District of Pennsylvania
                               (Civ. No. 02-cv-00098)
                    District Judge: Honorable Berle M. Schiller


Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                               December 15, 2006


          BEFORE: BARRY, AMBRO and FISHER, CIRCUIT JUDGES

                             (Filed: January 9, 2007)


                                    OPINION



PER CURIAM
       In January 2002, Joseph DiGenova filed a civil action in the United States District

Court for the Eastern District of Pennsylvania alleging ineffective representation, fraud,

misrepresentation, defamation and mistreatment by his union with the cooperation of the

other named defendants. In an Order entered on April 12, 2002, the District Court

granted defendants’ motions and dismissed DiGenova’s complaint after concluding that

DiGenova failed to either establish a basis for the court’s jurisdiction or state a cause of

action for which relief could be granted against any defendant. DiGenova did not appeal

the District Court’s order of dismissal and took no further action for more than four years

when, on May 25, 2006, he filed a motion seeking to reopen his civil action. The grounds

upon which DiGenova bases his reopen request are less than clear. He includes

allegations that CHIPS’ officers have embezzled from union members, have

misappropriated salaries and “pay outs,” and have engaged in other “trusteeship

violations.” DiGenova asserts at one point that the “cause” set forth in his reopen motion

pertains to the “same case files” as his original complaint, but elsewhere asserts that some

of the allegations raised in his post-judgment motion did not exist until July 2004.

       In an order entered on June 1, 2006, the District Court denied DiGenova’s reopen

motion without discussion. DiGenova, proceeding pro se, appeals from this order.

DiGenova was notified that his appeal would be considered for summary action, and he

has filed a response to that listing as well as a motion requesting that he be permitted to

expand the record to include certain tape recordings.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. After independently reviewing

                                              2
the record and DiGenova’s summary action response, we conclude that the District Court

acted within its discretion in denying DiGenova’s post-judgment motion. Initially, we

note that DiGenova could have appealed the District Court’s adverse decision issued back

in 2002 if he thought the court erred in its decision to dismiss the action. See, e.g., Morris

v. Horn, 187 F.3d 333, 343 (3d Cir. 1999) (Rule 60(b) cannot be used as a substitute for

an appeal). Moreover, even aside from the issue of timeliness, DiGenova’s motion

simply presents no showing of exceptional circumstances warranting extraordinary relief

under Fed. R. Civ. P. 60(b)(6) or any other provision for that matter. See Coltec Indus.,

Inc. v. Hobgood, 280 F.3d 262, 269 (3d Cir. 2000). Accordingly, finding that the appeal

presents no substantial question, we will summarily affirm the District Court’s judgment.

See Third Circuit LAR 27.4; I.O.P. 10.6. DiGenova’s motion to expand the record is

denied.
