DiGenova v. Baker , 212 F. App'x 118 ( 2007 )

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Precedential or Non-Precedential: Non-Precedential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.
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DLD-77 NOT PRECEDENTIAL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.