JOAN HAMILTON; THOMAS HAMILTON, her husband v. J.C. PENNEY COMPANY, INC. On Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3676
JOAN HAMILTON;
THOMAS HAMILTON, her husband,
Appellants
v.
J.C. PENNEY COMPANY, INC.
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Civil Action No. 02-cv-00167J
(Honorable Gary L. Lancaster)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 10, 2005
Before: SCIRICA, Chief Judge, ROTH and ALDISERT, Circuit Judges
(Filed : March 30, 2005)
OPINION OF THE COURT
SCIRICA, Chief Judge.
The District Court denied Joan and Thomas Hamilton’s demand for a trial de novo,
entering the arbitration award as the judgment in the case. We will affirm.

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J.C. Penney argues that we should not exercise jurisdiction over this appeal because a1
district court’s entry of judgment on an arbitration award is not subject to appellate
review under 28 U.S.C. § 657(a). We disagree. Section 657(a) does not “bar appellate
review of issues that were adjudicated by the court and not by the arbitrator.” Daniels v.
Thomas & Betts Corp., 263 F.3d 66, 72 n.2 (3d Cir. 2001). In this case, we review the
District Court’s order denying appellant’s demand for a trial de novo, not the merits of the
arbitrator’s decision.
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I.
Appellants Joan and Thomas Hamilton brought a personal injury action against
J.C. Penney in state court. J.C. Penney removed and the case was referred to court-
annexed arbitration under Western District of Pennsylvania Local Rule 16.2 and 28
U.S.C. § 651. The arbitrator ruled in favor of the J.C. Penney. The award was filed and
docketed by the Clerk of Court on May 15, 2003. Appellant mailed a letter to the court
on June 17, 2003, which the Clerk of Court docketed on June 19, 2003, as a “demand for
trial de novo.” On June 26, 2003, J.C. Penney filed a motion to strike the demand for trial
de novo. The District Court granted J.C. Penney’s motion to strike and entered the
arbitration award as the judgment in the case on the basis that the Hamiltons failed to file
their request for a jury trial de novo within the required thirty-day time period.
II.
The District Court had removal jurisdiction based on diversity of citizenship. See
128 U.S.C. § 1332(a)(1), 1441(b). We have appellate jurisdiction under 28 U.S.C. §
1291. We review the District Court’s striking of appellants’ demand for a trial de novo1
and its entry of the arbitration award as the judgment of the court for abuse of discretion.

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See Fed. R. Civ. P. 6(b) (“When by these rules or by a notice given thereunder or by2
order of court an act is required or allowed to be done at or within a specified time, the
(continued...)
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III.
Under Western District of Pennsylvania Local Rules 16.2.7 and 16.2.8 and 28
U.S.C. § 657(c)(1), a party may file a written demand for a trial de novo within thirty days
after the filing of an arbitration award. When a party makes a timely demand for a trial de
novo, the action is restored to the docket of the court and treated as if it had not been
referred to arbitration. See 28 U.S.C. § 657(c)(2). If no party makes a demand for a trial
de novo within the thirty-day period, the arbitration award is entered as the judgment of
the court. In this case, the parties do not dispute that appellants failed to make a timely
demand for a trial de novo. Appellants’ demand was received by the Clerk of Court one
day after the deadline, June 17, 2003, and not docketed until three days after the deadline
on June 19, 2003. The District Court held that appellants waived their right to a jury trial
when they failed to file the demand within the thirty-day time period.
Appellants argue that the District Court erred when it failed to find appellants’
actions constituted excusable neglect. J.C. Penney argues that the Hamiltons waived this
argument because they failed to raise it before the District Court. We agree with J.C.
Penney. After the thirty-day period had expired, appellants could have made a motion to
the District Court under Fed. R. Civ. P. 6(b) for an enlargement of time to file its demand
for a trial de novo. See Esteves v. Bondy, 189 F.R.D. 148, 149 (E.D. Pa. 1999) (noting2

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(...continued)2
court for cause shown may at any time in its discretion . . .upon motion made after the
expiration of the specified period permit the act to be done where the failure to act was
the result of excusable neglect[.]”)
See Fed. R. Civ. P. 60(b) (“On motion and upon such terms as are just, the court may3
relieve a party or a party’s legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect[.]).
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that the thirty day period to demand a trial de novo is subject to enlargement under
Federal Rule of Civil Procedure 6(b)). Alternatively, appellants could have made a
motion under Fed. R. Civ. P. 60(b) to relieve the party, on the basis of excusable neglect,
from the District Court’s order granting defendant’s motion to strike the demand for trial
de novo. Appellants pursued neither course of action. Instead, appellants filed only an3
“Answer to Defendant’s Motion to Strike Appeal De Novo,” in which appellants claimed
both they “complied with the rules” and that the date of filing did not prejudice appellee.
Because appellants did not raise the issue of excusable neglect before the district court,
we believe they have waived this argument for purposes of appeal. See Gass v. Virgin
Islands Tel. Corp., 311 F.3d 237, 246 (3d Cir. 2002) (“It is well established that failure to
raise an issue in the district court constitutes a waiver of the argument.”) (citations
omitted); see also Chi. Downs Ass'n, Inc. v. Chase, 944 F.2d 366, 370-71 (7th Cir. 1991)
(finding Rule 60(b) arguments waived because “[n]o [Rule 60(b)] motion was ever filed,
thus depriving the district court of the opportunity to develop a record, review it and then

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rule on whether [appellant] deserves relief from the effects of [appellee’s] obvious
negligence.”).
Moreover, appellants’ excusable neglect argument lacks any factual basis in the
record. Appellants claim the late filing constituted excusable neglect because their
attorney was engaged in settlement discussions with appellee on the last day of the appeal
period, June 16 , 2003. But, we call appellants’ attention to the record, where the
appellants represented to the District Court in their “Answer to Defendant’s Motion to
Strike Appeal De Novo” that those settlement discussions took place on June 17, 2003 –
one day after the deadline. Events that occurred after the deadline do not support a
finding of excusable neglect.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.

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