                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2004

Kabacinski v. Bostrom Seating Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1986




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-1986


                              MICHAEL J. KABACINSKI,
                                             Appellant

                                             v.

                              BOSTROM SEATING, INC.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                             D.C. Civil No. 02-cv-08910
              District Judge: The Honorable Franklin S. VanAntwerpen


                       Submitted Under Third Circuit LAR 34.1(a)
                                  February 24, 2004


               Before: RENDELL, BARRY, and ROSENN, Circuit Judges


                             (Opinion Filed March 30, 2004)


                                        OPINION




BARRY, Circuit Judge

       We are asked to review the March 7, 2003 order of the United States District Court

for the Eastern District of Pennsylvania denying plaintiff’s motion to reconsider that
Court’s February 13, 2003 order granting the defendant’s motion to have its motion to

dismiss deemed unopposed. We will affirm.

                                              I.

       The parties are familiar with the facts of this case, and, thus, we will provide but a

brief summary of those facts at the outset.

       Appellant Michael J. Kabacinski was employed by Bostrom Seating’s, Inc.

(“Bostrom”), a Delaware corporation with its principal place of business in Alabama, in

Bostrom’s facility in Allentown, PA. Bostrom closed its Allentown facility in early 2000,

leaving only one salesperson employed in Pennsylvania. Shortly before the closing,

Bostrom offered Kabacinski a temporary position in its North Carolina facility, which

Kabacinski accepted. In September 2000, however, Bostrom laid Kabacinski off as part

of a company-wide elimination of positions.

       Kabacinski commenced an employment discrimination action by filing a Charge of

Discrimination with the EEOC in October 2000. The EEOC issued a “no cause” letter on

October 31, 2001. Kabacinski filed an Writ of Summons on January 24, 2002 (later

amended on November 4, 2002) in Pennsylvania state court against Bostrom, alleging

violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the

Pennsylvania Human Relations Act (“PHRA”), 43 PA. C ONS. S TAT. §§ 955 and 962.

Bostrom removed the case to the U.S. District Court for the Eastern District of



                                              2
Pennsylvania on December 18, 2002, and on January 6, 2003 moved to dismiss under

F ED. R. C IV. P. 12(b)(6) and 12(b)(3) based on improper venue and because it was not an

“employer,” as that term is defined in the PHRA. Bostrom shortly thereafter amended its

motion, noting that it did still employ one salesperson in Pennsylvania. Before his

response was due, Kabacinski requested an extension of time until February 10, 2003 to

file opposition to the motion. The District Court granted the stipulated-to extension, but

stated in its order that no further extensions would be permitted.

       Kabacinski did not file his opposition on February 10, but claims that his counsel’s

assistant mailed it on that day. On February 12, Bostrom moved to have its motion to

dismiss deemed unopposed. On February 13, Kabacinski’s opposition to the motion to

dismiss was filed. That same day, the Court granted Bostrom’s motion to have its motion

to dismiss deemed unopposed, and granted the motion to dismiss, dismissing

Kabacinski’s PHRA claim with prejudice, and his ADEA and ADA claims without

prejudice to his right to refile them in the appropriate United States District Court in

Alabama. Both decisions were memorialized in one order filed on February 14.

       On February 24, 2003, Kabacinski moved for reconsideration of that part of the

February 14th order which granted Bostrom’s motion to have its motion to dismiss

deemed unopposed,1 arguing that by virtue of F ED. R. C IV. P. 6(e) (“Rule 6(e)”) and



  1
   While Kabacinski’s motion is entitled only as a motion to reconsider the Court’s
granting of this motion, given his request that the Court “reinstat[e] Plaintiff’s
Complaint,” we will assume that he intended that the Court reconsider its dismissal of his

                                              3
Local Rule of Civil Procedure 7.1(c) (“Local Rule 7.1(c)”), the filing of his opposition

papers was timely. On March 7, 2003, the District Court denied the motion to reconsider.

Kabacinski appeals that order.

                                             II.

       Bostrom argues that we do not have appellate jurisdiction under 28 U.S.C. § 1291

because the District Court’s order, which dismissed Kabacinski’s ADEA and ADA claims

without prejudice to his right to refile them in Alabama, is not final. “Ordinarily, an order

which terminates fewer than all claims, or claims against fewer than all parties, does not

constitute a ‘final’ order for purposes of appeal under 28 U.S.C. § 1291.” Carter v. City

of Philadelphia, 181 F.3d 339, 343 (3d Cir. 1999); see also Fed. Home Loan Mortgage

Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 438-40 (3d Cir. 2003) (general rule that “we

lack appellate jurisdiction over partial adjudications when certain of the claims before the

district court have been dismissed without prejudice”) (citing Erie County Retirees Ass’n

v. County of Erie, 220 F.3d 193, 201 (3d Cir. 2000)). The District Court’s order,

however, although it dismissed the federal claims without prejudice, ended the

proceedings once and for all in the U.S. District Court for the Eastern District of

Pennsylvania. The order, therefore, was final, and we have jurisdiction over Kabacinski’s

appeal.

       Turning to the merits, “[t]he decision to deny a Motion for Reconsideration is



complaint as well.

                                             4
within the discretion of the District Court, but ‘if the court's denial was based upon the

interpretation and application of a legal precept, review is plenary.’” Le v. Univ. of Pa.,

321 F.3d 403, 405-06 (3d Cir. 2003) (quoting Koshatka v. Phila. Newspapers, Inc., 762

F.2d 329, 333 (3d Cir. 1985)). That having been said, the standard a party must meet to

succeed on a motion for reconsideration is quite high:

         The purpose of a motion for reconsideration,” we have held, “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). Accordingly,
         a judgment may be altered or amended if the party seeking reconsideration
         shows at least one of the following grounds: (1) an intervening change in
         the controlling law; (2) the availability of new evidence that was not
         available when the court granted the motion for summary judgment; or (3)
         the need to correct a clear error of law or fact or to prevent manifest
         injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d
         1194, 1218 (3d Cir. 1995).

Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.

1999).

         There is no allegation by Kabacinski that the controlling law has changed.

Furthermore, Kabacinski’s argument that his affidavit in support of his motion for

reconsideration constitutes new evidence, even if correct, does not warrant

reconsideration of the Court’s February 13 order. 2 Thus, Kabacinski must show that the




  2
   Kabacinski’s affidavit is accompanied by a certificate of service, signed by his
counsel, indicating that his brief in opposition to Bostrom’s motion to dismiss was filed
on February 10, 2003 by first class mail. This evidence is only relevant if Kabacinski is
entitled to a three day extension under Rule 6(e). As we explain below, Rule 6(e) does
not apply.

                                              5
District Court’s decision to grant Bostrom’s motion was a clear error of law and/or

resulted in manifest injustice. The District Court concluded that Kabacinski did not do

so. We agree.

       Kabacinski’s arguments with respect to both Rule 6(e) and Local Rule 7.1(c) are

unpersuasive. Under Local Rule 7.1(c), he had fourteen days after service of Bostrom’s

motion to dismiss to serve his brief in opposition, “unless the Court directs otherwise.”

E.D. P A. R. C IV. P. 7.1(c). That is exactly what happened here: Kabacinski had until

fourteen days after Bostrom’s amended motion to dismiss was served on January 17,

2003, but then the Court extended that deadline, pursuant to the parties’ stipulation, to

February 10, 2003. If Kabacinski missed this new deadline, Local Rule 7.1(c) gave the

District Court the power to grant Bostrom’s motion as uncontested. See E.D. P A. R. C IV.

P. 7.1(c) (“[i]n the absence of timely response, the motion may be granted as

uncontested”).3

       Kabacinski argues that he did not miss the deadline because under Rule 6(e) he

enjoyed a three day extension beyond the Court-ordered deadline given that Bostrom’s

motion to dismiss was served on him by mail. Rule 6(e) states that “[w]henever a party




  3
    We recently noted the District Court’s power to impose even harsh penalties for
violation of local rules. See United States v. Eleven Vehicles, Their Equipment &
Accessories, 200 F.3d 203, 214 (3d Cir. 2000) (“Local court rules play a significant role
in the district courts’ efforts to manage themselves and their dockets .... it is not an abuse
of discretion for a district court to impose a harsh result, such as dismissing a motion or
an appeal, when a litigant fails to strictly comply with the terms of a local rule”).

                                              6
has the right or is required to do some act or take some proceedings within a prescribed

period after the service of a notice or other paper upon the party and the notice or paper is

served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days shall be added to the

prescribed period.”

       We have recognized that Rule 6(e) “adds a rebuttable presumption of three days’

mailing time to be added to a prescribed period whenever a statutory period begins on

receipt or service of notice.” Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 108, n.5 (3d

Cir. 2003). The District Court was correct, however, that Rule 6(e) does not apply to

deadlines imposed by, or following, a court order. See Albright v. Virtue, 273 F.3d 564,

571 (3d Cir. 2001) (“‘Rule 6(e) does not apply to time periods that begin with the filing in

court of a judgment or order.’”) (quoting with approval 1 JAMES M OORE ET AL., M OORE’S

F EDERAL P RACTICE § 6.053[3], at 6-35 (3d ed. 1998)). 4

       Finally, even if Kabacinski’s opposition to Bostrom’s motion to dismiss was filed




  4
    Kabacinski also argues that, under Local Rule 7.1(c), he should have been given
fourteen days to respond to Bostrom’s motion to have its motion to dismiss deemed
unopposed (his response was served by mail on February 16, 2003, after the District
Court had granted the motion). Because Local Rule 7.1(c) does not require a motion to
grant another motion as uncontested, we see no basis for the argument that he was entitled
to fourteen days to respond. In any event, any error by the District Court in acting too
soon was harmless because Kabacinski clearly missed the Court-ordered deadline to
respond to Bostrom’s motion to dismiss. Kabacinski argues, as well, that the District
Court could have extended the deadline by three days under F ED. R. C IV. P. 6(b). Even if
the Court “could have” extended the deadline, it had already done so on January 24 upon
the agreement of the parties, and specifically stated that no other extensions would be
granted.

                                              7
in a timely manner, Bostrom’s motion would surely have been granted. As the District

Court noted, venue for the ADA claim was improper in the Eastern District of

Pennsylvania because Bostrom closed its Pennsylvania facility before plaintiff filed this

action, its employment records were in Alabama, and Kabacinski had accepted

Bolstrom’s offer of a temporary position at its facility in North Carolina. See 42 U.S.C. §

2000-e-5(f)(3) (“Such an action may be brought in any judicial district in the State in

which the unlawful employment practice is alleged to have been committed, in the

judicial district in which the employment records relevant to such practice are maintained

and administered, or in the judicial district in which the aggrieved person would have

worked but for the alleged unlawful employment practice”). Moreover, because Bostrom

no longer operated a facility in Pennsylvania, and it employed, at most, one salesperson in

the state, it was not an “employer” within the meaning of the PHRA. See 43 P A. C ONS.

S TAT. § 954(b) (“the term ‘employer’ includes ... any person employing four or more

persons within the Commonwealth”).

       The order of the District Court dated February 13, 2003 will be affirmed.
