Michael P. Lenaghan and Margaret Lenaghan v. Pepsico, Inc., Pepsi-Cola of Michigan, Inc., and Frito-Lay, Inc., Jointly and Severally
961 F.2d 1250
6th Cir.
1992
Check Treatment

*1 singlе representative is that the union instability which create an that tion issues system- or of workers craft class for each remedy for to avoid. seeks the Act GTW, has resolved and thus wide through applica- instability is achieved this dispute. procedures. merger of the Board’s tion con- has the Board procedures those Under is representation that such sistently held with is remanded and the case reversed Further, basis. system-wide aon must prejudice. it to dismiss directions system- for the single representative this “[a] costs on its own party will bear Each to facilitate class is meant or craft wide appeal. provide labоr- bargaining and collective stability.” management dis- background the Board

With its earlier decision: and clarified

cussed case, the Board found present on system existed transportation single result, representation GTW, and Margaret P. LENAGHAN Michael extin- lines were former on rights Plaintiffs-Appellees, Lenaghan, Board envisioned guished. The organizations lаbor

Carrier lines of bargain along the continue Michigan, INC., PEPSICO, Pepsi-Cola of the for- certifications extinguished Inc., jointly Frito-Lay, lines. mer Defendants-Appellants. severally, in this decisions previous In its No. representa- redefined Board has bargaining collective structure Appeals, tion Court of States United Board What the property. the GTW on Circuit. Sixth decision is through this clarifies 23, 1992. Argued March organiza- a labor found the Board when April Decided a craft representative to be tion GTW, the employees on the class of or 11, 1992. June Rehearing Denied organization labor meant Board entire for the representative single GTW class on the craft or system-wide proceed bargaining to enable

order class or newly-defined craft

along the

lines. omitted). 23{¡5-33(footnote

Id.

CONCLUSION disagree toas opinion, we clarifying the Board’s

impact of correctly deter- the Board

conclude to it presented matter

mined dispute, ex- representation awas this case Thus, the jurisdiction. its clusively ‍‌​‌‌​​‌​‌‌​‌​​​‌‌‌‌‌‌​​‌‌​​​‌​‌​​‌​‌​‌​‌‌​‌​​​‌‌‍within jurisdic- matter subject lacked Fortu- decision. the Board’s to review

tion attempt to its abandоned nately, GTW has spokesper- identify specific NMB craft for each representatives as sons Board’s accepted

class of workers certified The Board to do so.

refusal *2 Mich, Novi, Cleary, (argued

Dennis W. briefed), plaintiffs-appellees. Lieberman, Woyar, Richard E. Mark N. . (argued briefed), James M. Gecker Hardies, Ill., Chicago, Gregory Ross & V. Butzel, Gust, Murray, Long, Klein & Van Zile, Detroit, Mich., defendants-appel- lants. JONES, GUY,

Before: BATCHELDER, Judges. PER CURIAM. appeal from the

court’s decision to enter for the upon a mediation decision. finding entered after reject the defendants failed to specified by panel’s decision within the time Finding a local court rule. that the defen- failure to on time was excusa- dants’ ble, we rеverse and ‍‌​‌‌​​‌​‌‌​‌​​​‌‌‌‌‌‌​​‌‌​​​‌​‌​​‌​‌​‌​‌‌​‌​​​‌‌‍remand. rejected the The district mistake. I. judg- entreaties entered defendants’ Margaret Michael plaintiffs, panel’s evaluation. on the mediation ment the de- against action filed Lenaghan, employ- later, former filed a Lenaghan’s fendants, Mr. Two *3 September reconsider, court for first еrs, Michigan arguing state the ain motion Inc., Pep- defendants, Pepsico, mailing time- February The 1989. 5 time Inc., Frito-Lay, Michigan, of court lacked and, alternatively, si-Cola the that ly federal district case removed the a sanction judgment as authority to enter later. months court two court The district procedural default. for a opinion. The motion without the denied 1990, stipulated parties the In October aside to set filed a motion defendants then non-binding referring the case an order to Fed.R.Civ.P. pursuant judgment, 32, the E.D.Mich. Local Rule mediation. See the ar- again advanced 59(e). motion This on arguments panel heard The mediаtion to reconsider in the motion the raised guments of 8, At the conclusion 1991. January de- that the decision claim an evaluation added a announced hearing, panel the to a $45,000 right their of the defendants plaintiffs prived the of in favor denied to counsel court evaluation copies of the trial. The handed attorney This motion, opinion. again The defendants’ without sides. for both second the attor- immediately informed appeal followed. the defendants

ney that evaluation. II. that: requires rule local The mediation Before rejection of the or acceptance Written refusing to by abused its discretion giv- shall be evaluation Panel’s Mediation the conse from the relieve days 28 Clerk within Tribunal en the misstep, we procedural of their quences At mailing of the evaluation.... of the claim defendants’ the must consider first period, the of the above expiration the timely. rejection notice the that notice indicat- send a shall Clerk Tribunal disagree. rejection or counsel’s ing each argue satisfied that The defendants evaluation. of the given” “be rejection that a requirement the pro- further 32(e)(5). The rule Local Rule days by 28 clerk within the tribunal Panel’s eval- Mediation the vides “[i]f day. the 28th rejection on mаiling the any of the by rejected is not uation given” that “be Thus, argue the defendants be entered judgment shall days, a 28 within find sent.” We with “be synonymous the of award.” amount the by Court the phrase reading of the a more natural 32(j)(l). Local the must receive clerk the tribunal is that re- days 28 after February On language days. The 28 within rejection dеcision, the defendants’ panel’s the ceiving requires disputed phrase following the notice to rejection mailed of the notice to send the tribunal clerk clerk received tribunal The clerk. tribunal 28-day expiration” “at the results The days clerk later. rejection three tribu- The our conclusion. periоd bolsters par- district court then notified end notice at the such send nal clerk cannot accepted the had plaintiffs ties that yet she not day if he or 28th that the defendants evaluation day. rejections mailed received by filing late accepted the had rejection. interpretation cоntrary seemingly v. J.L. appearing 32 filed a motion immediately Apr. Cir. Co., 86-1538 No. Hudson evalua- entry (table)], does 1987) F.2d hearings [816 on held two tion. Lofton, a change our conclusion. hearings, At both motion. evalu- rejecting a a notice mailed rejection they had filed conceded deadline, but days before the two аtion to excuse late, urged the court but rejection to the court of to We therefore find that the sent instead district court clerk. The correctly the tribunal court received determined defendants’ day rejection on of the deadline and given notice was to the tribunal it to counsel. The tribunal clеrk returned days clerk three late.

finally received six after deadline. We affirmed the district III. filing. court’s refusal allow a late argue The defendants next that Lo passing, stated that the local rule re- we 32, by allowing mandating cal Rule “to mailed to the quires rejections tribu- procedural of a based on a days.” slip op. at nal within 28 error, violates the Federal Rules of Civil and, holding, That statement was not a *4 Procedure and' the Seventh Amendment. Lofton, unlike this case, did not turn on the disagree. We mailing receipt. distinction between The federal rules allow district courts to mailing in in The reference to Lofton adopt “not local rules inconsistent with mailed, the context of to whom it should these rules.” Fed.R.Civ.P. 83. The defen- not when it mailed. there- should be dants contend that Local Rule 32 is incon- any significance decline to attach to fore 55(a), sistent with Fed.R.Civ.P. which al- statement, particularly ap- since it judgment lows a court to enter а default pears unpublished opinion.1 in an against party plead a that “has failed to argue that the defendants also otherwise defend.” 28-day period began the tri never because The defendants not suffered a de- bunal clerk did not mail the evalua Leal v. judgment in See fault this case. parties. tion tо the Local Rule Corp., Interstate Brands (6th 765 F.2d 145 begins run 32 does state that the clock to Cir.1985) (finding “inapt” at- defendant’s evaluation, no when the clerk mails the tempt analogize judgment to a default to a mailing necessary in this case because reject entered after its failure panel physically handed the mediation evaluation). Instead, panel copies of the evaluation counsel court entered based on the defen- mailing only day hearing. A “acceptance” dants’ of the mediation necessary does not decide when Although the defendants maintain award. See immediately. case award, accept did not we fail to 32(e)(4) “notify” (requiring panel to , defining silence as see how a local ‍‌​‌‌​​‌​‌‌​‌​​​‌‌‌‌‌‌​​‌‌​​​‌​‌​​‌​‌​‌​‌‌​‌​​​‌‌‍rule hearing); 14 of its evaluation within Fed.R.Civ.P. 55.2 violates Div. Indian see also MGM Brakes Head, Uni-Bond, Inc., next contend that Inc. v. 111 Mich. The defendants 170, (1981) (hold 39 467, Rule 32 violates Fed.Rule Civ.P. App. N.W.2d 172 Local 315 by infringing Amendment “mailing” lan and the Seventh ing under identical by jury. We rule, began right to a trial Wayne County upon clock guage in Rhea argument in a similar running panel physically rejected served eval when Inc., (6th 266 Massey-Ferguson, other counsel), 767 F.2d remanded on uation to Rhea, Cir.1985). the defendant chal 905, In grounds, 417 330 N.W.2d 853 Mich. authority man- court’s (1983). lenged the district v. North defendаnts' citation to Tiedel Eastern District of 2. The 1. We also observe that the Michigan College, Cir. language F.2d 88 Michigan adopted here western 865 at issue Tiedel, 1988), helpful. County we held that Wayne is not from the former Court Michigan’s County version of Local Wayne District of rule was inter Western Rule 403.7. The the Fed.R.Civ.P. preted require receive Rule 32 was inconsistent that the tribunal clerk recovery of attor days. it authorized See Mills v. 68 because a written within 28 376, rejected against party a media ney’s Mich.App. fees a Equip., 161 409 Franco Food holding is 829, That ("we timely rejection lost trial. tion evaluation and hold that N.W.2d 830 long turned on the completе upon here because it not relevant award is not of the mediation federal standing presumption, embodied in the mailing”), grounds, Mich. rev’d on other 429 Id., attorney’s denied, rules,.against awarding fees. 865 (1987), cert. 486 U.S. 414 N.W.2d 888 (1988). 93-94. S.Ct. 100 L.Ed.2d 604 108 F.2d.at in However, conduct the defendants’ Local non-binding mediation under date presents stronger a case jury litigation right instant held Rule 32. We though present in either even for relief than was infringed, was not Lofton reading cursory could be of the local A rejecting the mediation or Leal. ultimately jury if the the counsel pay costs have informed ordered to rule would panel. Id. at given mediation agreed with the had to be pre- rule Similarly, We stressed counsel in clerk. the tribunal any right to a because served that silence not have concluded Leal could and de- the evaluation party could rejection if he had would be treated at 269. mand a trial. Id. case, by con- read local rule. unambiguous- trast, the rule does not stаte initial- instant In the clerk must receive ly that the tribunal dispute to the agreed to submit ly days. interpreta- That rejection within failing By panel. carefully one clear when tion becomes time, they deemed were panel’s decision context with the provision the time reads find the evaluation. We accepted to have Therefore, coun- surrounding provisions. 32 does not violate Local type 39 be- does reflect or Fed.R.Civ.P. sel’s mistake Amendment Seventh *5 disagrees the in and Leal. present who carelessness any party cause opportunity to ample evaluation then, decide, other whethеr We must a the demand evaluation refusal support the district court's factors trial. grant defendants relief. to the attempt to characterize the the defendants’ IV. is default argument final The defendants’ used in inapt, factors the late if notice was even parties of defaults are relevant to relieve rule, the district a valid local under cases, In such we consider analysis. our by refusing grant abused its discretion defendant, defaulting culpability mis effects of the relief from the harsh plaintiff, and whether prejudice to respond that the dis step. plaintiffs The Ber meritorious defense. has a defendant in the matter discrеtion trict court had no Kane, 907 F.2d v. thelsen provides that 32(j) since Local Rule Cir.1990). culpability of the de As to the judgment on the eval enter a court “shall” fendants, the defendants’ we conclude that days. rejects it within 28 party if no uation misread on an excusable error based was mandatory lan Notwithstanding the ambiguous local rule. ing of a somewhat 32, the district court guage of Local Rule three-day concede that authority relieve a retains preju- filing rejection did not delay in from a mistake judgment that results fact, immediately after the In dice them. 60(b). neglect. See Fed.R.Civ.P. excusable decision, the defen- their panеl announced must, Therefore, review the district we informed dants’ counsel grant relief for abuse of court’s refusal to re- intention to the defendants’ counsel of discretion. therefore, continued plaintiffs, ject. The opinions, unpublished In we two for trial. preparations their late grant relief from refusals аffirmed and confusion Although inconvenience In decisions. rejections of Berthelsen, it is in listed are factors not its sent Lofton, the defendant re- no confusion noting there worth of to the tribunal court instead the district clerk tribunal delay. sulting from to file Leal, defendant failed clerk. In responses to parties’ out the did not send rejection notice because timely receiving the de- until after respond failure to believed notice to The clerk’s cases, rejection. we fendants’ rejection. both treated as a parties indicated and the not the court court did concluded that evalúa- attemptеd to defendants denying relief. its discretion abuse Ordinarily, Therefore, plain- it lacked discretion. this situa the court and tion. remand, any misappre- might require a labored under tion but here the tiffs never discretion, intent. proper as to defendants’ exercise of once found to hension exist, is clear. contrast to the defendant deny the defen- plaintiffs do not Pepsico dilatory. not id.Cf. defenses to may have substantial dants (“Hudson rejec not failed to mail [the Thus, appear it does not claims. their but, the correct location after learn tion] judg- seek to set aside the defendants error, ing of its waited over two weeks dilatory or frivolous reasons.3 ment for late.”). moving for leave to file before agree Finally, we with the Furthermore, Pepsico’s interpretation of of the local rule rigid enforcement objectively the local rule was not unreason to dis- such as this would tend in a case Accordingly, I concur in the result. able. submitting courage litigants future from disputes to mediation. Mediation will their if alternative to trial

not be an attractive perceive process to be full unwary.

traps for the there is a substantial

We believe responses requiring prompt

interest However, we do

panel evaluations. justifies the result that ‍‌​‌‌​​‌​‌‌​‌​​​‌‌‌‌‌‌​​‌‌​​​‌​‌​​‌​‌​‌​‌‌​‌​​​‌‌‍this interest believe COMPANY, The PROCTER & GAMBLE rejection was late here when the obtained Petitioner-Appеllee, mistaken, understandable, to an albeit due reading Rule 32. of Local *6 that the district therefore conclude INTERNAL COMMISSIONER OF granting its discretion court abused REVENUE, Respondent- motion for Appellant. request for denying the defendants’ 91-1515, Nos. Accordingly, judgment. from that relief RE-

we REVERSE Appeals, United States Court proceedings cоnsistent MAND for further Sixth Circuit. opinion. with Argued March 1992. JONES, Judge, NATHANIEL R. April 1992. Decided concurring in the result. unpub majority agree I Co., Hudson

lished case of v. J.L. 1987) Apr. Cir. No. 86-1538 [816 database) (table) (Westlaw, CtA6

F.2d 680 ] precedential value

lacks in Eastern District “given” 32(e)(5) means

Michigan find, I would or “delivered.”

“mailed”

however, precedential val it does have of whether the

ue on the issue applying the local discretion

court has (“[A] mediation at *4

rule. See and a ‘carved stone’ ‍‌​‌‌​​‌​‌‌​‌​​​‌‌‌‌‌‌​​‌‌​​​‌​‌​​‌​‌​‌​‌‌​‌​​​‌‌‍based on power to set it aside

judge has the circumstances.”). In the instant mistakenly believed that defense, rejecting evaluation. pay costs for lack a substantial If 32(j)(3). having losing See Local trial and the risk of run