Filed: Jan. 29, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 1-29-2003 Hsu v. Palisades Park Precedential or Non-Precedential: Non-Precedential Docket 02-1318 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Hsu v. Palisades Park" (2003). 2003 Decisions. Paper 850. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/850 This decision is brought to you for free and open access by the Opinions of the U
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 1-29-2003 Hsu v. Palisades Park Precedential or Non-Precedential: Non-Precedential Docket 02-1318 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Hsu v. Palisades Park" (2003). 2003 Decisions. Paper 850. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/850 This decision is brought to you for free and open access by the Opinions of the Un..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
1-29-2003
Hsu v. Palisades Park
Precedential or Non-Precedential: Non-Precedential
Docket 02-1318
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Hsu v. Palisades Park" (2003). 2003 Decisions. Paper 850.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/850
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos: 02-1318/1474
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;
GENE SCHWERDTFEGER
Intervenor Plaintiff in D.C.
v.
HESCO PARTS CORPORATION;
HESCO, INCORPORATED
HESCO, INC., Appellant in 02-1318
GENE SCHWERDTFEGER, Appellant in 02-1474
On Appeal from the United States District Court
for the District of New Jersey
District Court Judge: The Honorable Dennis M. Cavanaugh
(D.C. Civ. No. 98-cv-00278)
Argued on December 10, 2002
Before: FUENTES, GARTH and WALLACH*, Circuit Judges
(Opinion Filed: January 29, 2003 )
__________________
*Honorable Evan J. Wallach, United States Court of International Trade, sitting by
designation.
David G. Uffelman [Argued]
Uffelman, Rodgers, Kleinle & Mets
165 Washington Street
Morristown, NJ 07960
Attorney for Appellant/Cross Appellee, Hesco,
Inc.
Benjamin N. Gutman [Argued]
U.S. Equal Employment Opportunity Comm.
1801 L Street, N.W., Room 7022
Washington, DC 20507
Attorney for Appellee, EEOC
Maureen S. Binetti [Argued]
Wilentz, Goldman & Spitzer
90 Woodbridge Center Drive, Suite 900
Woodbridge, NJ 07095
Attorney for Appellee/Cross-Appellant, Gene
Schwerdtfeger
________________________
OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Hesco, Inc. ("Hesco") appeals from an order entered by the United States
District Court for the District of New Jersey denying attorneys' fees and costs to Hesco
following a jury verdict of "no cause" in an action brought against Hesco under the
Americans with Disabilities Act ("ADA"). Gene Schwerdtfeger ("Schwerdtfeger") cross-
appeals the District Court's denial of his motion appealing the taxation of costs, the denial
of his motion for a new trial, and the denial of his motion for sanctions. We affirm.
I. Facts and Procedural History
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A. Factual
Gene Schwerdtfeger has retinitis pigmentosa, a degenerative eye disease that
renders him legally blind. The parties stipulated that he was "disabled' under the ADA. In
1956, Schwerdtfeger began working at Rite-Way, a "re-manufacturer" of rebuilt auto parts
for Ford. Schwerdtfeger primarily worked in the breakdown area, disassembling used car
parts, or cores, for subsequent re-manufacturing. He worked at Rite-Way for over thirty-
seven years, until Hesco bought out the company.
Hesco was formed in January 1994 for the purpose of acquiring the assets of Rite-
Way after Rite-Way lost its authorization from Ford. Hesco intended to operate the Rite-
Way facility solely as warehouse, purchasing its inventory from other Ford re-
manufacturers. On April 29, 1994, immediately prior to the closing on the sale of its
assets, Rite-Way terminated its employees, including Schwerdtfeger. Prior to that date,
Hesco interviewed certain Rite-Way employees for its initial warehouse positions. Hesco
hired a staff of 22 employees to begin work on May 2, 1994. Hesco interviewed
Schwerdtfeger but decided not to hire him.
B. Procedural
On or about May 19, 1994, Schwerdtfeger filed a charge with the EEOC against
Hesco, alleging disability discrimination in violation of the ADA. On May 7, 1998, the
EEOC filed an Amended Complaint against Hesco in the United States District Court for
the District of New Jersey, alleging that the company had violated the ADA by
discriminating against Schwerdtfeger on the basis of his disability. On May 21, 1999,
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Hesco moved for summary judgment, arguing that Schwerdtfeger could not perform the
essential functions of the warehouse position. In its motion, Hesco neither contested the
District Court's subject matter jurisdiction nor argued that it was not a covered entity under
the ADA. On June 29, 1999, District Judge Walls denied Hesco's motion.
On November 19, 1999, the EEOC asked to be dismissed from the case and to
withdraw as counsel. On December 14, 1999, the District Court granted the EEOC's
application for voluntary dismissal with prejudice and stayed the action to allow
Schwerdtfeger to intervene. The EEOC and Hesco stipulated that each side would bear its
own litigation costs but left the issue of attorneys' fees to the District Court.
The EEOC played no further role in the litigation of the merits. On January 12,
2000, Schwerdtfeger's counsel entered an appearance on his behalf. The Magistrate Judge
entered an order on April 25, 2000, which deferred any fee application by Hesco against
the EEOC until the conclusion of all proceedings in the case.
On January 16, 2001, Hesco again moved for summary judgement on many of the
grounds asserted in the prior motion, but also on the additional ground that it was not a
covered entity under the ADA because it employed fewer than 25 employees on the
relevant date. On April 11, 2001, the District Court denied Hesco's motion, finding that the
issue was jurisdictional and that Hesco had waived jurisdictional defenses in the Consent
Order dated April 21, 1998.
On June 10, 2001, Hesco moved to dismiss the action on the ground that
jurisdiction could never be waived. Schwerdtfeger cross-moved for sanctions against
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Hesco's counsel for raising the issue on the first day scheduled for trial. On June 12, 2001,
the District Court denied Hesco's motion and withdrew the portion of the prior opinion
finding waiver. The District Court reiterated its position that the numerosity issue was
jurisdictional, but found that Hesco had employed 25 employees for more than 20 weeks in
1994.
Trial commenced on July 17, 2001. After eight days of trial, the jury deliberated for
over five hours and returned a verdict for Hesco. The jury concluded that Schwerdtfeger
was not a "qualified individual with a disability." Following the verdict, the District Court
granted two extensions on Hesco's applications for attorneys' fees and costs. On August
28, 2001, the District Court denied Schwerdtfeger's motion for sanctions against Hesco's
counsel. On September 5, 2001, Hesco finally moved for "prevailing party" attorneys' fees
against EEOC and Schwerdtfeger. Schwerdtfeger cross-moved, on October 22, 2001, for
sanctions against Hesco with respect to the attorneys' fees application.
By Order dated November 29, 2001 (entered November 30, 2001), the District
Court denied Hesco's motion for attorneys' fees and Schwerdtfeger's cross-motion for
sanctions against Hesco. The Court noted that the repeated denial of summary judgment
indicated that there were material issues in dispute, and that the EEOC neither acted in bad
faith nor unreasonably in pursuing the litigation. Hesco filed a notice of appeal from this
decision and Schwerdtfeger filed a cross-appeal. Hesco filed its notice of appeal on
January 28, 2002.
On November 7, 2001, the Clerk of the District Court taxed costs against
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Schwerdtfeger and in favor of Hesco in the amount of $3,884.59. On November 19, 2001,
Schwerdtfeger appealed the Clerk's assessment to the District Court. On January 4, 2002,
the District Court denied this motion. Schwerdtfeger has cross-appealed this order as well.
II. Jurisdiction and Standard of Review
We exercise jurisdiction under 28 U.S.C. § 1291 over a final decision of a district
court. See Sinclair v. Soniform, Inc., 935 F.2d 599, 601 (3d Cir. 1991). We review a
district court's grant or denial of attorneys' fees under an abuse of discretion standard. See
Loughner v. University of Pittsburgh,
260 F.3d 173, 177 (3d Cir. 2001).
We review a district court's denial of a motion for a new trial for an abuse of
discretion. See Johnson v. Elk Lake School District, 283 F.3d 138, 147 (3d Cir. 2002). A
district court's taxation of costs against a plaintiff is also reviewed for an abuse of
discretion. See In re Paoli Railroad Yard PCB Litigation,
221 F.3d 449, 458 (3d Cir.
2000). A district court's decision on whether to award sanctions is subject to plenary
review, but if the district court applies the proper legal standard, then the award of
sanctions, including the extent is within the discretion of the district court. See In re Tutu
Wells Contamination Litigation,
120 F.3d 368, 387 (3d Cir. 1997).
III. Discussion
A. Timeliness and Numerosity
The issues of timeliness involve Schwerdtfeger's cross-appeals. Schwerdtfeger
appealed the following three decisions: (1) the District Court's Order of November 21,
2001, denying his motion for a new trial; (2) the District Court's Order of November 29,
6
2001, denying his motion for sanctions against defense counsel; and (3) the District
Court's Order of January 4, 2002, denying his motion appealing the taxation of costs.
Hesco argues that some of these appeals are untimely because the collateral issue of
attorneys' fees does not extend the time to file an appeal as to the merits. The EEOC points
to the Tenth Circuit's decision in Bridgestone/Firestone, Inc. v. Local Union No. 998, 4
F.3d 918, 924 (10th Cir. 1993), which held that a cross-appeal from a collateral order
denying sanctions is timely if filed within 14 days of the appeal of the merits, as arguably
supporting Schwerdtfeger's position that all of his appellate issues are timely.
The Bridgestone/Firestone opinion dealt with a primary appeal of the merits that had
been timely, allowing Firestone to rely on the 14-day extension under Rule 4(a)(3) to file
an appeal of a collateral order. By contrast, this case involves an appeal of a collateral
order that was timely, with the opposing party attempting to rely on the 14-day extension to
appeal the merits and other collateral orders. However, Rule 4(a)(3) plainly states that "[i]f
one party timely files a notice of appeal, any other party may file a notice of appeal within
14 days after the date when the first notice was filed." The rule does not differentiate
between types of appeals. As a result, we find all of Schwerdtfeger's appeal issues to be
timely as his notice of appeal was filed within 14 days of the date when Hesco's notice of
appeal was filed.
Hesco asserts that the issue of whether a defendant qualifies as an "employer" under
the ADA is a question of federal subject matter jurisdiction. Hesco further claims that the
District Court lacked subject matter jurisdiction over this case because Hesco was not an
7
"employer" under the ADA. On April 29, 1994, the date Hesco refused to hire
Schwerdtfeger, the ADA applied to an employer "who has 25 or more employees for each
working day in each of 20 or more calendar weeks in the current or proceeding year." 42
U.S.C. § 12111(5)(A). We decline to determine whether the 25 employee requirement is
jurisdictional, because regardless of whether the "25 or more employees" requirement is
jurisdictional or goes to the merits of an ADA claim, Hesco is a covered entity.
Hesco was covered by the ADA on April 29, 1994, if it had 25 employees for each
working day in each of 20 weeks in either 1993, the preceding year, or 1994, the current
year. Other Circuit Courts have interpreted similar language in other federal statutes in this
fashion. See Rogers v. Sugar Tree Prods., 7 F.3d 577, 580 (7th Cir. 1993) (concluding that
under the ADEA "[t]he current year is the year in which the alleged violation occurred, and
the applicable period does not cease on the date of the violation, but rather continues until
the end of the calendar year."); Slack v. Havens
522 F.2d 1091, 1093 (9th Cir. 1975)
(rejecting the argument that "current or preceding calendar year" means "the prior calendar
year and only those months of the current year preceding the incident at issue" as
incompatible with the plain language of Title VII). While it had no employees during 1993
and the early part of 1994, Hesco stipulated that it had 25 or more employees for at least
20 weeks during the second half of 1994. As a result, under the plain language of §
12111(5)(A), Hesco was a covered entity under the ADA on April 29, 1994.
Nevertheless, Hesco contends that the District Court erred in applying the ADA
retroactively. Hesco contends that it did not become subject to the ADA until twenty
8
weeks after April 29, 1994. This argument is without merit. Retroactivity becomes an
issue only when a new statute "attaches new legal consequences to events completed before
its enactment." Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994); Mathews v. Kidder,
Peabody & Co.,
161 F.3d 156, 160 n.5 (3d Cir. 1998) (a statute has "retroactive effect" if it
would "reach back in time and alter the rights or obligations on which the parties relied
prior to the statute's passage"). Given that Hesco's actions took place four years after the
enactment of the ADA, the issue of retroactivity is not pertinent. Prior to April 29, 1994,
the plain language of the ADA indicated that any company employing 25 or more
employees for 20 weeks during 1994 would be a covered entity under the statute.
B. Attorneys' Fees
Hesco claims that it is entitled to attorneys' fees from the EEOC and Schwerdtfeger.
The ADA permits the award of a "reasonable attorney's fee, including litigation expenses
and costs" in the discretion of the court, to a "prevailing party." 42 U.S.C. § 12205. A
prevailing defendant is not awarded fees unless the plaintiff's action was "frivolous,
unreasonable or without foundation, even though not brought in subjective bad faith."
Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). The terms "frivolous,
unreasonable, or without foundation" all imply "groundless ... rather than simply that the
plaintiff has ultimately lost his case." EEOC v. L.B. Foster Co.,
123 F.3d 746, 751 (3d Cir.
1997) (quoting Christianburg
Garment, 434 U.S. at 421), cert. denied,
522 U.S. 1147
(1998).
The Third Circuit looks to several factors in considering fees for a prevailing
9
defendant, including: (1) whether the plaintiff made a prima facie case; (2) whether the
defendant offered to settle; and (3) whether the trial court dismissed the case before trial
or held a full-blown trial on the merits. Id. In this case, Schwerdtfeger made a prima facie
case of discrimination in employment under the ADA, his allegations survived multiple
motions for summary judgment, and his claim resulted in a trial on the merits after which
the jury deliberated for nearly six hours. Based on these facts, the District Court did not
err in finding that Schwerdtfeger's claim was not frivolous and in denying attorneys' fees to
Hesco.
Hesco's claim for prevailing party attorneys' fees against the EEOC is meritless. As
we have stated earlier, prior to trial, the EEOC was no longer a party to the action as it was
dismissed with prejudice. See Kentucky v. Graham, 473 U.S. 159, 168 (1985) ("That a
plaintiff has prevailed against one party does not entitle him to fees from another party, let
alone from a nonparty."); see also Buckhannon Bd. and Care Home, Inc. v. West Virginia
Dep't of Health and Human Res., 532 U.S. 598, 604-05 (2001) (a party has not "prevailed"
unless it has received a judicially sanctioned judgment or consent decree in its favor, and
thus, the court has changed the legal relationship between the parties).
C. Schwerdtfeger's Appeal
Schwerdtfeger raises a number of issues on appeal. Most of these issues involve
alleged errors made by the trial court. Schwerdtfeger also appeals the taxation of costs
against him and the denial of his request for sanctions against Hesco. After having
carefully considered each of these issues in the context of the record from the proceedings
10
in the District Court, we find no reason to reverse any of the Court's rulings.
IV. Conclusion
Accordingly, for the reasons stated above, we affirm the judgment of the District
Court.
_____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge
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