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Polonski v. Trump Taj Mahal Associates

February 18, 1998

JACQUELINE POLONSKI; OSCAR BERRIOS; MICHELE BOYLE; NEIL BROWEN, SR.; JUDY LOWE-BROWN; MARIA BUCHEL; DORI BYRNES; DONNA CAMPO-POLKALSKI; JOANN CARMAN; STEPHANIE POSTLEWAIT-CASTALDI; MICHELE COCOZZA; DORIS SPIEGEL-CONTI; JEANNANNE DELUCA; NOELLE DISOMMA; ELIZABETH J. ELLIS; SHARON FATATO; JAMIE FELDMAN; TYLER FITZGERALD; CINDI FRANCO; TRACEY GIERY; KATURAH GODARO; GUILLERMO RIVERA; MICHAEL HAINSWORTH; SCOTT C. JOHNSON; SANDRA LANCIERI; CATHERINE LIOSI; DEBRA LUPU; RICHARD MARIN; IRENE MARTINEZ; KIM MEERSAND; BEVERLY L. MIRANDA; LINA MONTECALVO; DIANE MOOSHER; MURIEL NALE; VIVIAN NUTLIE; PATRICE PINCHOCK; VINCE POMPILI; KATHLEEN QUINN; DARLENE ROBINSON; THERESA SCHWEIGHARDT; DENISE STAUFFENBERG; JULIE A. STRZMIECHNA; SHARON TABASCO; SHARON TOCCO; KIM VINCI; SALLY WEISDOCK; SHARON WOLF; ROBIN YOUSHAW (HEREINAFTER COCKTAIL SERVERS); MICHAEL RACO; VERONICA WILSON; JOSEPH ANTONELLI; RICHARD FANTE; DANIEL MORANIS; LOUIS NASTASI; RICHARD ROSEN; MAURICE SHERROD; WILLIAM TRACY; JOHN WITHERS, (HEREINAFTER BARTENDERS)
v.
TRUMP TAJ MAHAL ASSOCIATES; LOCAL 54, OF THE HOTEL EMPLOYEES RESTAURANT EMPLOYEES INTERNATIONAL UNION (H.E.R.E.I.U.); ABC, INC., (A FICTITIOUS NAME); JOHN DOE, (A FICTITIOUS NAME) (D.C. CIVIL 9L-CV-03014) DOROTHEA A. ARCURI; PATRICIA BROOKS, VICTORIA BRYANT; KAREN CARLINI; ROBERT DONOVAN; PHILIP K. FERGUSON; NANCY GUERRERA; ROBERT HINGOS; LEE A. KINSELL; CHARLES MCBRIDE; JUNE MCBRIDE; ROSALIE MCCARTHY; MICHELE MCCARTNEY; JANET M. MEDIO; LINDA MERANUS; GREGORY NATALE; MARIANNE K. ORTZMAN; RONALD PAGANO; ANNA MARIE PLATANIA; GERI SHANNON; DONALD SILANO; JEANETTE SOPUCH; KENNETH W. STRAIN; TRASENA TAUSO; ELIZABETH WALKER; VICTORIA WEGER; RICHARD ZAK; JOANNE CAPETOLA; JOHN LASCOWSKI; ADRIENNE M. PALERMO; MARY ANN PETERSON; SUSAN PETRONE; BARRY L. WRIGHT
v.
TRUMP TAJ MAHAL ASSOCIATES; LOCAL 54, OF THE HOTEL EMPLOYEES RESTAURANT EMPLOYEES INTERNATIONAL UNION, (H.E.R.E.I.U.) (D.C. CIVIL NO. 91-CV-03529) LOCAL 54, HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 9l-cv-03014 and No. 91-cv-03529) Argued December 11, 1997

Before: Greenberg, Roth and Seitz, Circuit Judges.

The opinion of the court was delivered by: Seitz, Circuit Judge.

OPINION OF THE COURT

Local 54 Hotel Employees and Restaurant Employees International Union ("the Union") appeals the district court's award of attorney's fees against it under the common benefit exception to the American rule limiting recovery.*fn1 We will review, under a plenary standard, the legal interpretation of the common benefit doctrine and whether the district court possessed the authority to apply it in a given factual setting. Marshall v. United Steelworkers, 666 F.2d 845, 849-50 (3d Cir. 1981).

I. Facts and Procedural History

The facts of this case are undisputed. Between 1989 and 1990, the Union represented the food and beverage employees of the Trump Castle, the Trump Plaza, and the Trump Regency. In April of 1990, management of the newly constructed Trump Taj Mahal failed to recognize the seniority status of certain Union employees transferred from the Trump Regency who were to be granted the highest seniority status pursuant to a collective bargaining agreement between the Union and Trump representatives. As a result, the Union filed a grievance on behalf of the former Trump Regency employees against the Taj Mahal. This matter was submitted to binding arbitration and resulted in an award sustaining the grievance and directing the Trump Taj Mahal to establish seniority status for the former Trump Regency employees. A group of Trump Taj Mahal employees who were adversely affected by the arbitration award ("the Polonski group") requested Trump Taj Mahal to appeal, but no such action was taken.

By December of 1990, the U.S. Department of Justice filed a civil RICO action against the Union and other individuals in an unrelated matter. See United States v. Hanley, Civil No. 90-5017 (D.N.J.). The court approved a consent decree which provided for the resignation of the Union's leadership and the appointment of a special Monitor to oversee Union affairs. Shortly afterwards, the Polonski group confronted the Monitor and alleged that the previous arbitration award had been procured unfairly. The Polonski group also filed suit against the Union in the Superior Court of New Jersey, alleging a breach of the duty of fair representation. This action was later removed to the district court.

In view of these events, the Monitor sought to reopen the arbitration award and submit the entire matter to the arbitrator for reDisposition. By August of 1991, the group of employees who benefitted from the arbitration award ("the Arcuri group") filed suit in the district court against the Union and the Trump Taj Mahal.*fn2 These plaintiffs sought damages for the Union's breach of the duty of fair representation, and moved to temporarily enjoin the Monitor from attempting to have the arbitration award reopened. After the Union represented that it would not seek to reopen the award, the Arcuri group withdrew their motion for a preliminary injunction, and continued their litigation against the Union for a breach of the duty of fair representation.*fn3

Upon cross-motions for summary judgment, the district court held that the Monitor had in fact breached his duty of fair representation by attempting to reopen the arbitration in an arbitrary manner. The court, on September 30, 1994, ordered the Union to pay attorney's fees as damages caused by the Union's violation of the labor laws. The matter was subsequently referred to a magistrate Judge to determine the appropriate amount of attorney's fees and costs.

However, by order dated August 1, 1995, the district court reversed its position and held that the plaintiffs were not entitled to attorney's fees as damages under the labor laws. Instead, the court allowed the plaintiffs to recover under the common benefit doctrine all attorney's fees for aspects of the litigation in which they prevailed. *fn4 The case was once again referred to the magistrate Judge, who recommended a total award of $103,566.30 in attorney's fees and costs. On September 27, 1996, the district court adopted the magistrate Judge's recommendation. The Union now appeals the district court orders allowing attorney's fees under the common benefit doctrine and adopting the magistrate Judge's ultimate recommendation as the appropriate amount of fees and costs.

II. Jurisdiction of This Court

At the outset, the plaintiffs question the jurisdiction of this court to consider the August 1, 1995 order allowing attorney's fees under the common benefit doctrine. They assert that the Union had previously appealed that order, in addition to the September 30, 1994 order, and this court had dismissed those appeals as untimely under Fed. R. App. P. 4(a)(1). From this, we understand the plaintiffs to make a two-fold argument. They first contend that our prior dismissal renders all matters relating to that appeal final and conclusive. Second, they seem to make the argument that the Union's notice of appeal had only mentioned the district court's final September 27, 1996, order adopting the magistrate Judge's recommendation as to attorney's fees under the common benefit doctrine. Because the Union did not include in its notice of appeal the August 1, 1995 order, plaintiffs contend that we have no jurisdiction to consider that order.

The plaintiff's first argument -- that the appeal of the common benefit issue is precluded by our dismissal of the Union's prior appeal -- is meritless. It is well established in our court that an appeal from an order granting attorney's fees is not final unless reduced to an identifiable amount. Pennsylvania v. Flaherty, 983 F.2d 1267, 1276-77 (3d Cir. 1993). It goes without saying that a dismissal of a premature attorney's fees appeal carries no res judicata effect, as this court could not have exercised jurisdiction to consider the appeal. With some exceptions not applicable here, this court will only consider an appeal from an attorney's fee determination when it becomes final. See id. Thus, the dismissal of the Union's premature appeal of the August 1, 1995 order does not bar our consideration of the issue at this time.

Plaintiffs' second contention -- that the Union's failure to explicitly include in its notice of appeal the August 1 order granting attorney's fees -- is also without force. While Fed. R. App. P. 3(c) does provide that the notice of appeal must "designate the judgment, order, or part thereof appealed from," an appeal from a final judgment that is identified in the notice will draw into question all non-final orders and rulings which produced the judgment. Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1253 (3d Cir. 1977) (per curiam). It is almost axiomatic that decisions on the merits are not to be avoided on grounds of technical violations of procedural rules, see Foman v. Davis, 371 U.S. 178, 181-82 (1962), and we have read notices of appeal liberally. See CTC Imports and Exports v. Nigerian Petroleum ...


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