On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Nos. 87-5905, 88-2509, 88-5101, 88-5878.
Sloviter, Becker, and Stapleton, Circuit Judges.
Four Conrail employees brought actions under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 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.
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.
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, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978) (District Court "lost jurisdiction ten days after entry of judgment to grant relief under Rule . . . 59.") Plaintiffs' Rule 59(e) motion was untimely,*fn1 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. ...