Independent Coca-Cola Employees' Union v. Coca-Cola Bottling Co. United, Inc. , 114 F. App'x 137 ( 2004 )


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  •                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    REVISED DECEMBER 7, 2004
    November 11, 2004
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
    Clerk
    No. 04-30142
    INDEPENDENT COCA-COLA EMPLOYEES’ UNION OF
    LAKE CHARLES, NO. 1060,
    Plaintiff-Appellant,
    versus
    COCA-COLA BOTTLING COMPANY UNITED, INC.,
    d/b/a Lake Charles Coca-Cola Bottling
    Company,
    Defendant-Appellee.
    --------------------
    Appeal from the United States District Court
    for the Western District of Louisiana
    (03-CV-1029)
    --------------------
    Before WIENER and PRADO, Circuit Judges, and KINKEADE,* District
    Judge.
    PER CURIAM:**
    Plaintiff-Appellant Independent Coca-Cola Employees’ Union of
    Lake Charles, No. 1060 (“the Union”) appeals the district court’s
    grant of summary judgment in favor of Defendant-Appellee Coca-Cola
    Bottling Company United, Inc. (“Coca-Cola”).      The district court
    *
    District Judge for the Northern District of Texas, sitting
    by designation.
    **
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    ruled that the Union’s cause of action to compel Coca-Cola to
    arbitrate had prescribed (“time-barred”) because Coca-Cola informed
    the Union of its unequivocal refusal to arbitrate on November 27,
    2002, thereby triggering the six-month statute of limitations under
    Section 301(a) of the Labor Management Relations Act (“LMRA”), 
    29 U.S.C. § 185
    (a), yet the Union did not sue Coca-Cola until June 2,
    2003.     We affirm.
    I. FACTS AND PROCEEDINGS
    In    August     1994,   Coca-Cola   suspended   Arthur     Etienne,   its
    employee and a member of the Union, pending an investigation of his
    arrest.      A collective bargaining agreement (“CBA”) between Coca-
    Cola and the Union contains a grievance and arbitration procedure
    which is the exclusive means by which aggrieved employees may
    settle disputes with their employer.          The Union filed a grievance
    contesting     Etienne’s      suspension.     (In     May    1996,   Coca-Cola
    reinstated Etienne after the criminal charges were dismissed.)
    In      August     1998,    Coca-Cola     terminated       Etienne     for
    “inefficiency, incompetency, neglect of work or decective [sic]
    workmanship.”       In September 1998, Etienne and the Union filed
    another grievance with Coca-Cola, this one contesting Etienne’s
    termination.     Coca-Cola denied the grievance in December, and, in
    February 1999, the Union notified Coca-Cola of its and Etienne’s
    intent to arbitrate the dispute under the CBA.              Coca-Cola, through
    its counsel, filed a written request with the Federal Mediation and
    2
    Conciliation Service (“FMCS”) to provide an arbitration panel.                In
    March 1999, the FMCS submitted an arbitration panel.
    Although the arbitration panel remained available, the parties
    postponed selection of an arbitrator while they pursued amicable
    settlement of Etienne’s grievance.          The Union contends that Coca-
    Cola’s   request   for   an   arbitration      panel      and    its   continual
    negotiations to resolve Etienne’s grievance led the Union to
    believe that Coca-Cola had formally requested, acknowledged, and
    accepted arbitration of Etienne’s grievance.                    The Union also
    asserts that it understood that the parties would submit the
    dispute to arbitration in the event that settlement negotiations
    were unsuccessful.
    In March 2002, counsel for Coca-Cola wrote to Ken Schexnayder,
    a Union representative and spokesman, advising the Union that,
    although Coca-Cola had no legal obligation to Etienne, it would
    settle the   grievance    for    $12,000.      In   its    letter,     Coca-Cola
    informed the Union that the offer would remain open for thirty
    days. (There is no evidence in the record that the Union or Etienne
    accepted   the   settlement     offer,   counter-offered,         or   otherwise
    responded within 30 days.)
    On November 19, 2002, the Union responded to Coca-Cola’s offer
    by letter in which it outlined its position.              The Union informed
    Coca-Cola that “[i]t is our position that this grievance is deemed
    granted and that Coca-Cola is foreclosed from contesting this
    3
    grievance because of its failure to adhere to the time limitations
    set forth in the grievance procedure.”3
    On November 27, 2002, Coca-Cola responded to the Union’s
    November 19 letter.   Coca-Cola informed the Union and Etienne that
    any cause of action that they may have had had prescribed in six
    months.   Coca-Cola’s letter stated:
    Please be advised that we totally disagree with the
    factual and legal conclusions set forth in your letter of
    November 19, 2002.
    We have on numerous occasions tried to amicably settle
    any grievance Mr. Etienne may have had.
    As you are aware, under La. Civil Code Art. 3494, a claim
    for wages or compensation is prescribed after three (3)
    years. Additionally, any cause of action the Union or
    Mr. Etienne may have had prescribed in six (6) months.
    (Del Costello v. International Brotherhood of Teamsters,
    
    462 U.S. 151
    ; and Sussman v. News-Journal Corp., 
    742 F.2d 1466
    .
    We are of the opinion that neither the Union nor Mr.
    Etienne have a viable cause of action at this time.
    On December 4, 2002, the Union and Etienne responded to Coca-
    Cola’s November 27 letter.      They informed Coca-Cola that any
    dispute over whether they had a viable cause of action was not ripe
    because the parties had not exhausted the grievance and arbitration
    procedure. They also asked Coca-Cola to provide them with dates on
    which the parties could meet to select an arbitrator.
    On December 11, Coca-Cola responded to the Union, stating:
    3
    We do not speculate why Coca-Cola never contended that this
    communication was a clear and unequivocal refusal of Etienne and
    the Union to arbitrate.
    4
    Please be advised that any cause of action to compel
    arbitration has prescribed. By letter dated March 14,
    2002, the Union was advised that the Company had no legal
    obligation to Mr. Etienne, and the offer to settle the
    grievance would expire in 30 days from the date of that
    letter.
    Consequently, the Company is of the opinion it has no
    legal or contractual obligation to arbitrate Mr.
    Etienne’s grievance at this time.
    On June 2, 2003, the Union sued Coca-Cola in the United States
    District Court for the Western District of Louisiana under Section
    301(a) of the LMRA4 to compel Coca-Cola to arbitrate the Etienne
    grievance.    In October 2003, Coca-Cola filed a motion for summary
    judgment, maintaining that the Union’s cause of action to compel
    arbitration was time-barred.   The district court found that in its
    November 27, 2002 letter, Coca-Cola had clearly and unequivocally
    refused to arbitrate Etienne’s grievance.   As more than six months
    had passed between Coca-Cola’s November 27 letter and the filing of
    the Union’s suit, the district court concluded that the plaintiffs
    were time-barred from seeking to compel arbitration and granted
    Coca-Cola’s motion for summary judgment, dismissing the action with
    prejudice.
    The Union then filed a Motion to Alter or Amend Judgment under
    Federal Rule of Civil Procedure 59.      In its motion, the Union
    argued that the November 27 letter constituted constructive notice
    only of Coca-Cola’s refusal to arbitrate.       The district court
    disagreed, concluding that the Union was merely attempting to re-
    4
    
    29 U.S.C. § 185
    (a).
    5
    litigate Coca-Cola’s motion for summary judgment.     The district
    court denied the motion to alter or amend.   The Union timely filed
    its notice of appeal.
    II. ANALYSIS
    A.   Summary Judgment
    1.    Standard of Review
    We review a district court’s grant of summary judgment de
    novo, using the same standard as that applied by the district
    court.5   Summary judgment is “proper, if, viewing the evidence and
    inferences drawn from that evidence in the light most favorable to
    the non-moving party, there is no genuine issue of material fact
    and the moving part is entitled to judgment as a matter of law.”6
    At this stage, “a court may not weigh the evidence or evaluate the
    credibility of witnesses, and all justifiable inferences will be
    made in the non-moving party’s favor.”7
    2.    Applicable Law
    We have held that “an action on a collective bargaining
    agreement under section 301 of the Labor Management Relations Act
    is governed by the six-month limitation included in section 10(b)
    5
    United States ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l
    Healthcare Sys., 
    384 F.3d 168
    , 173 (5th Cir. 2004).
    6
    
    Id.
     (citing FED. R. CIV. PROC. 56(c); Daniels v. City of
    Arlington, 
    246 F.3d 500
    , 502 (5th Cir. 2001)).
    7
    
    Id.
     (citing Morris v. Covan World Wide Moving, Inc., 
    144 F.3d 377
    , 380 (5th Cir. 1998)).
    6
    of the National Labor Relations Act.”8         The six-month limitation
    period “accrues when one party clearly refuses to arbitrate the
    dispute.”9   To   “make   it   clear”   that   an   employer   refuses   to
    arbitrate, circuit courts have held that one of the parties must
    take the unequivocal position that it will not arbitrate.10 Whether
    the employer has unequivocally refused to arbitrate turns on the
    particular facts of each case.11
    8
    Aluminum, Brick & Glassworkers Int’l Union Local 674 v. A.P.
    Green Refractories, Inc., 
    895 F.2d 1053
    , 1055 (5th Cir. 1990).
    9
    
    Id.
     (citing Communications Workers of Am. v. W. Elec. Co.,
    
    860 F.2d 1137
    , 1144-45 (1st Cir. 1988)).
    10
    Painewebber Inc. v. Faragalli, 
    61 F.3d 1063
    , 1067 (3d Cir.
    1995) (“[W]e have held in the context of a petition to compel
    arbitration under § 301(a) of the Labor Management Relations Act .
    . . that such a cause of action ‘arises when [one of the parties]
    takes an unequivocal position that it will not arbitrate.’”);
    Aluminum, Brick & Glass Workers Int’l Union v. AAA Plumbing Pottery
    Corp., 
    991 F.2d 1545
    , 1548 (11th Cir. 1993) (same); Associated
    Brick Mason Contractors, Inc. v. Harrington, 
    820 F.2d 31
    , 38 (2d
    Cir. 1987) (same).
    11
    In re Diamond D Constr. Corp., 
    15 F. Supp. 2d 274
    , 289
    (W.D.N.Y. 1998). See also In re I.B.E.W. Sys. Council U-7, 
    180 F.3d 368
    , 370 (2d Cir. 1999) (finding that announcing status of
    arbitration proceeding, deeming it abandoned, and returning
    arbitration fees not unequivocal refusal to arbitrate); Schweizer
    Aircraft Corp. v. Local 1752, Int’l Union, United Auto. Workers of
    Am., 
    29 F.3d 83
    , 87 (2d Cir. 1994) (filing petition to stay
    arbitration unequivocal refusal to arbitrate); Local Joint
    Executive Bd. v. Exber, Inc., 994 F.2d at 675-76 (failing to
    respond to union’s letter not an unequivocal refusal to arbitrate);
    AAA Plumbing Pottery Corp., 
    991 F.2d at 1548
     (stating that “I’m
    sure you will agree that the matter is closed” not unequivocal
    refusal to arbitrate; subsequent conduct, including responding to
    subsequent letters, supported finding); A.P. Green Refractories,
    
    895 F.2d at 1055
     (refusing to arbitrate on day arbitration meeting
    scheduled unequivocal refusal to arbitrate); W. Elec. Co., 
    860 F.2d at 1138, 1144-45
     (finding unequivocal refusal to arbitrate when
    employer responded that matter non-arbitrable); 4200 Ave. K LLC v.
    7
    Fishman, 
    164 F. Supp. 2d 339
    , 344 (S.D.N.Y. 2001) (filing motion to
    stay arbitration unequivocal refusal to arbitrate); United
    Steelworkers of Am. v. Murphy Oil, U.S.A., Inc., No. 00-0371, 
    2000 WL 1341471
    , at *1 (E.D. La. Sept. 14, 2000) (finding that
    employer’s statement “there is nothing to arbitrate” unequivocal
    refusal to arbitrate, but that employer’s subsequent conduct,
    including additional negotiations and discussions, negated intent
    in letter); In re Diamond D, 
    15 F. Supp. 2d at 289-97
     (finding that
    “the unequivocal refusal standard does not turn on whether the
    party resisting arbitration has filed a petition to stay
    arbitration or has uttered the magic words ‘we refuse to arbitrate
    this dispute’” but that “[u]nambiguous conduct must also rise to
    the level of an unequivocal refusal to arbitrate.”); Hotel
    Greystone Corp. v. N.Y. Hotel & Motel Trades Council, 
    902 F. Supp. 482
    , 484-85 (S.D.N.Y. 1995) (finding that employer’s letter
    opposing reconsideration of award not unequivocal refusal to
    arbitrate); United Auto. Workers of Am., Local 1748 v. Midwesco
    Filter Res., Inc., 
    884 F. Supp. 196
    , 198-99 (W.D. Va. 1995)
    (failing to respond to letter to arbitrate not unequivocal refusal
    to arbitrate); United Food & Commercial Workers Union, Local No. 88
    v. Middendorf Meat Co., 
    794 F. Supp. 328
    , 330, 332 (E.D. Mo. 1992)
    (finding that employer’s statement that it had no intention to
    arbitrate because union’s initial request too late under collective
    bargaining agreement unequivocal refusal to arbitrate); Int’l
    Union, United Plant Guard Workers of Am. v. St. Joseph’s Univ., No.
    91-8002, 
    1992 WL 96292
    , at *2-3 (E.D. Pa. Apr. 24, 1992) (finding
    that expiration of period in collective bargaining agreement within
    which to institute arbitration proceedings coupled with employer’s
    failure to take action constituted unequivocal refusal to
    arbitrate); United Steel Workers of Am. v. Black Top Paving Co.,
    No. 88-2396, 
    1990 WL 106067
    , at *5 (W.D. Pa. Apr. 12, 1990)
    (finding that employer’s contention that it unequivocally refused
    to arbitrate and employee’s contention that employer’s letter was
    stalling, and not refusal to arbitrate, foreclosed summary
    judgment); Int’l Union, Allied Indus. Workers of Am. v. Mich.
    Plastic Prods. Co., No. G89-10608 CA, 
    1990 WL 482463
    , at *1-2 (W.D.
    Mich. Oct. 22, 1990) (finding that employer’s position that
    grievance not subject to grievance procedures or arbitration
    constituted unequivocal refusal to arbitrate but that employer’s
    position that another grievance not subject to grievance procedure
    only not specific enough to constitute unequivocal refusal to
    arbitrate); Tenn. Valley Trades & Labor Council v. Tenn. Valley
    Auth., 
    751 F. Supp. 135
    , 139-140 (M.D. Tenn. 1990) (finding that
    agreement to negotiate seven grievances but refusal to negotiate
    three other grievances constituted unequivocal refusal to arbitrate
    three); Serv. Employees Int’l Union Local 252 v. 1500 Garage Corp.,
    
    699 F. Supp. 487
    , 490 (E.D. Pa. 1988)(finding that company’s
    8
    The Union argues that Coca-Cola did not unequivocally refuse
    to arbitrate before sending its December 11, 2002 letter to the
    Union.   Coca-Cola   counters   that   it   unequivocally   refused   to
    arbitrate in its November 27, 2002 letter.     We discern no error in
    the district court’s determination that Coca-Cola’s November 27
    letter constituted an unequivocal refusal to arbitrate.
    In that letter, Coca-Cola informed the Union that any cause of
    action that it or Etienne may have had was prescribed.       Coca-Cola
    made clear its position that neither the Union nor Etienne had a
    “viable cause of action” at that time because any cause of action
    had prescribed.   We agree with the district court that when one
    party tells another that it has no viable cause of action because
    any claims that it might have had are now time-barred, that party
    has unequivocally refused to arbitrate.      Although Coca-Cola might
    have chosen its words more carefully, there is no need for a party
    refusing to arbitrate to use that term (or any other talismanic
    explicit statement that it declined the union’s request for
    arbitration because CBA had expired constituted unequivocal refusal
    to arbitrate); Bldg. Material & Constr. Drivers, Helpers and
    Material Handlers, Teamsters, Local Union No. 341 v. Beaver Valley
    Builder’s Supply, Inc., 
    645 F. Supp. 79
    , 81 (W.D. Pa. 1986)
    (finding that employer’s “adamant refusal to even consider
    arbitration” unequivocal refusal to arbitrate); Millmen’s Union
    Local No. 1120 v. Pay Less Drug Stores Northwest, Inc., 
    589 F. Supp. 675
    , 679 (D. Or. 1984) (finding that employer’s subsequent
    action discussing merits of grievance with union’s counsel and
    repeatedly stating that attorney considering whether dispute should
    go to arbitration raised genuine issue of material fact even after
    letter constituting unequivocal refusal to arbitrate).
    9
    words) to express its refusal to arbitrate.12             Further, there is
    no   record       evidence   that   Coca-Cola   engaged   in     any   activity
    subsequent to the November 27 letter that would contradict its
    position     as    expressed   therein.13       We   perceive    no    doubt   or
    equivocation in Coca-Cola’s position that it did not intend to
    arbitrate claims that the Union and Etienne could no longer pursue
    by virtue of the statute of limitations.
    The Union relies heavily on AAA Plumbing Pottery Corp. to
    support its proposition that Coca-Cola’s November letter should not
    constitute an unequivocal refusal to arbitrate.14               AAA Plumbing is
    distinguishable on the facts.           There, the employer stated that
    “‘I’m sure you will agree that the matter is closed and it would be
    inappropriate to reopen it at this time.’”15           The Eleventh Circuit
    found this language equivocal in that it was no more than “an
    attempt to persuade the [union]’s counsel that [its client] had no
    12
    See In re Diamond D, 
    15 F. Supp. 2d at 289
     (“Given the
    repeatedly stated public interest in a prompt resolution of labor
    disputes, this court believes that the unequivocal refusal standard
    does not turn on whether the party resisting arbitration has filed
    a petition to stay arbitration or has uttered the magic words ‘we
    refuse to arbitrate this dispute.’”).
    13
    See, e.g., United Steelworkers of Am. v. Murphy Oil, U.S.A.,
    Inc., No. Civ.A.00-0371, 
    2000 WL 1341471
    , at *1 (E.D. La. Sept. 14,
    2000) (finding that employer’s statement “there is nothing to
    arbitrate” unequivocal refusal to arbitrate, but that employer’s
    subsequent   conduct,   including   additional   negotiations   and
    discussions, negated intent in letter).
    14
    
    991 F.2d 1545
     (11th Cir. 1993).
    15
    
    991 F.2d at 1548
    .
    10
    basis     for   the   suggestion   that    the   parties   should   return   to
    arbitration.”16       Here, in contrast, the declaration in Coca-Cola’s
    letter that the Union’s and Etienne’s claim had prescribed is not
    merely suggestive of Coca-Cola’s rejection of arbitration but an
    unambiguous and unequivocal statement of its position that there
    was no reason to arbitrate a prescribed claim.
    As a further distinction, we note that later conduct of the
    employer in AAA Plumbing contributed to the Eleventh Circuit’s
    determination that the language in the employer’s letter did not
    constitute an unequivocal refusal to arbitrate.            There, the lawyer
    for the employer sent a subsequent letter to opposing counsel in
    which he stated that he “would be interested to see what the
    Union’s position [was] concerning [the employee’s] backpay.”17               In
    contrast, there is no record evidence that Coca-Cola engaged in any
    conduct subsequent to its November 27 letter that could be seen as
    casting doubt on its stated position that the Union’s and Etienne’s
    causes of action had prescribed. That Coca-Cola might have engaged
    in intermittent negotiations during the course of approximately
    three years over Etienne’s grievance before sending the November
    letter is of no moment:        Once Coca-Cola sent that letter to the
    Union, Coca-Cola’s position that it would not arbitrate a time-
    16
    
    Id.
     (emphasis added).
    17
    
    Id.
    11
    barred claim was unmistakable.18          We agree with the district
    court’s     ruling   that   Coca-Cola’s   November   27,   2002   letter
    constituted an unequivocal refusal to arbitrate and, consequently,
    that the Union’s claim prescribed before it filed suit against
    Coca-Cola on June 2, 2003.
    B.   Motion to Alter or Amend
    1.     Standard of Review
    We generally review the denial of a motion to alter or to
    amend judgment under Rule 59(e) for abuse of discretion.19        If the
    district court’s ruling implicates reconsideration of a question of
    law, we review the denial de novo.20
    2.     Analysis
    18
    At oral argument, counsel for the Union appeared to argue
    that the November 27 letter could not constitute an unequivocal
    refusal to arbitrate because Coca-Cola’s legal argument therein —
    that the claim had already prescribed (apparently by virtue of the
    March 2002 letter) — was faulty. Counsel argued that the claim had
    not prescribed in November 2002 because the parties had not
    exhausted the arbitration proceedings and Coca-Cola had not yet
    refused to arbitrate. The Union’s reliance on the possibility that
    Coca-Cola’s legal conclusion was erroneous misses the mark.
    Whether Coca-Cola’s legal conclusion that a previous letter
    constituted an unequivocal refusal to arbitrate was correct is
    irrelevant to our determination that the November 27 letter
    triggered the six-month statute of limitations.
    19
    Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus.,
    Chem., & Energy Workers Int’l Union Local 4-487, 
    328 F.3d 818
    , 820
    (5th Cir. 2003).
    20
    
    Id.
    12
    A Rule 59(e) motion to alter or to amend judgment “‘calls into
    question the correctness of a judgment.’”21 We have previously held
    that a Rule 59(e) motion “is not the proper vehicle for rehashing
    evidence, legal theories, or arguments that could have been offered
    or raised before the entry of judgment.”22    A Rule 59(e) motion
    “‘serve[s] the narrow purpose of allowing a party to correct
    manifest errors of law or fact or to present newly discovered
    evidence.’”23 Rule 59(e) also provides relief to a party when there
    has been an intervening change in the controlling law.24    Relief
    under Rule 59(e) is an extraordinary remedy that should be used
    sparingly.25
    In its motion to alter or amend judgment in the district
    court, the Union insisted that Coca-Cola’s November 27, 2002 letter
    was at best constructive notice of its refusal to arbitrate.    In
    paragraph eight of its Statement of Material Facts as to Which
    There is no Genuine Issue to be Tried, Coca-Cola wrote:
    21
    Templet v. Hydrochem, Inc., 
    367 F.3d 473
    , 478 (5th Cir.
    2004) (quoting In re Transtexas Gas Corp., 
    303 F.3d 571
    , 581 (5th
    Cir. 2002)).
    22
    
    Id.
     (citing Simon v. United States, 
    891 F.2d 1154
    , 1159 (5th
    Cir. 1990)).
    23
    
    Id.
     (quoting Waltman v. Int’l Paper Co., 
    875 F.2d 468
    , 473
    (5th Cir. 1989)).
    24
    Schiller v. Physicians Res. Group, Inc., 
    342 F.3d 563
    , 567-
    68 (5th Cir. 2003) (citing In re Benjamin Moore & Co., 
    318 F.3d 626
    , 629 (5th Cir. 2002)).
    25
    Templet, 
    367 F.3d at
    479 (citing Clancy v. Employers Health
    Ins. Co., 
    101 F. Supp. 2d 463
    , 465 (E.D. La. 2000)).
    13
    The Union and Arthur Etienne received constructive notice
    of the letter sent by G. Michael Pharis to Marshall J.
    Simien, Jr. dated November 27, 2002.
    The Union contends that this constitutes a “judicial admission” by
    Coca-Cola that its November letter constituted constructive notice
    only, and thus does not entitle Coca-Cola to summary judgment here.
    To support this proposition, the Union cites to other circuit
    courts that have held that constructive notice of the refusal to
    arbitrate is insufficient because the refusal must be unequivocal.26
    The Union did not raise this argument in its opposition to
    Coca-Cola’s motion for summary judgment.   Rather, the Union did so
    for the first time in its motion to alter or to amend judgment
    before the district court. “Defenses not raised or argued at trial
    are ordinarily waived by the parties failing to raise them.”27    A
    Rule 59(e) motion “cannot be used to argue a case under a new legal
    theory.”28   The Union could have raised this argument in its
    Memorandum in Opposition to Coca-Cola’s Motion for Summary Judgment
    (or even in a supplemental memorandum).    Accordingly, we conclude
    26
    Local Joint Executive Bd. v. Exber, Inc., 
    994 F.2d 674
    , 676
    (9th Cir. 1993); see also Painewebber Inc. v. Faragalli, 
    61 F.3d 1063
    , 1067 (3d Cir. 1995); AAA Plumbing Pottery Corp., 
    991 F.2d at 1548
    ; Associated Brick Mason Contractors, Inc. v. Harrington, 
    820 F.2d 31
    , 38 (2d Cir. 1987).
    27
    Simon v. United States, 
    891 F.2d 1154
    , 1159 (5th Cir. 1990)
    (citing Cunningham v. Healthco, Inc., 
    824 F.2d 1448
    , 1458 (5th Cir.
    1987)).
    28
    
    Id.
     (quoting Fed. Deposit Ins. Corp. v. Meyer, 
    781 F.2d 1260
    , 1268 (7th Cir. 1986) (citations omitted)).
    14
    that the Union waived this argument.29   The district court did not
    abuse its discretion when it denied the motion to alter or to
    amend.
    III.   CONCLUSION
    For the foregoing reasons, the rulings of the district court
    are, in all respects,
    AFFIRMED.
    29
    We note that while the term “constructive notice” might have
    been an unfortunate choice of an adjective to describe the notice
    that the November 27 letter provided, it is obvious that counsel
    for Coca-Cola was not using that as a term of art to distinguish it
    from actual notice. Notice to counsel of record is always notice
    to the client; indeed, it would be an ethical violation for counsel
    to communicate directly with the party opposite.
    15
    

Document Info

Docket Number: 04-30142

Citation Numbers: 114 F. App'x 137

Judges: Wiener, Prado, Kinkeade

Filed Date: 12/7/2004

Precedential Status: Non-Precedential

Modified Date: 10/19/2024

Authorities (23)

United States v. E TX Med Regn Sys , 384 F.3d 168 ( 2004 )

4200 Avenue K LLC v. Fishman , 164 F. Supp. 2d 339 ( 2001 )

Local Joint Executive Board of Las Vegas, Bartenders Union ... , 994 F.2d 674 ( 1993 )

in-the-matter-of-the-arbitration-of-certain-controversies-between-ibew , 180 F.3d 368 ( 1999 )

Clancy v. Employers Health Insurance , 101 F. Supp. 2d 463 ( 2000 )

in-the-matter-of-transtexas-gas-corporation-transamerican-energy , 303 F.3d 571 ( 2002 )

Aluminum Brick and Glass Workers International Union v. Aaa ... , 991 F.2d 1545 ( 1993 )

Diamond D Construction Corp. v. International Union of ... , 15 F. Supp. 2d 274 ( 1998 )

Communications Workers of America, Afl-Cio v. Western ... , 860 F.2d 1137 ( 1988 )

Fed. Carr. Cas. P 84,067 Tex Morris Cindy Sagrera Morris v. ... , 144 F.3d 377 ( 1998 )

Federal Deposit Insurance Corporation, in Its Corporate ... , 781 F.2d 1260 ( 1986 )

Templet v. Hydrochem Inc. , 367 F.3d 473 ( 2004 )

Painewebber Incorporated Sheldon Chaiken Lee H. Lovejoy ... , 61 F.3d 1063 ( 1995 )

Daniels v. City of Arlington , 246 F.3d 500 ( 2001 )

United Food & Com. Workers v. Middendorf Meat , 794 F. Supp. 328 ( 1992 )

Schweizer Aircraft Corporation v. Local 1752, International ... , 29 F.3d 83 ( 1994 )

Millmen's Union Local No. 1120 v. Pay Less Drug Stores ... , 589 F. Supp. 675 ( 1984 )

Dr. Larry Cunningham, and Dental Leasing, Inc. v. Healthco, ... , 824 F.2d 1448 ( 1987 )

Hotel Greystone Corp. v. New York Hotel & Motel Trades ... , 902 F. Supp. 482 ( 1995 )

Sherman Simon, Jr., Individually and as Next Friend of His ... , 891 F.2d 1154 ( 1990 )

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