Bricklayers IL 21 v. Banner Restoration ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3512
BRICKLAYERS LOCAL 21 OF ILLINOIS APPRENTICESHIP
AND TRAINING PROGRAM and MASONRY INSTITUTE,
BRICKLAYERS LOCAL 21 PENSION FUND,
Plaintiffs-Appellees,
v.
BANNER RESTORATION, INCORPORATED,
Defendant-Appellant.
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Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 99 C 6633—Martin C. Ashman, Magistrate Judge.
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ON MOTION TO RECALL THE MANDATE
*
OCTOBER 5, 2004
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RIPPLE, Circuit Judge (in chambers). Appellant Banner
Restoration, Inc. (“Banner”) moves to stay the mandate
pending the filing of a petition for a writ of certiorari.
Familiarity with this court’s opinion in the underlying liti-
gation is presumed. See Bricklayers Local 21 Pension Fund v.
Banner Restoration, Inc., No. 02-3512 (7th Cir. Sept. 22, 2004).
*
This opinion was initially released in typescript form.
2 No. 02-3512
To stay the mandate, Banner must show that its petition
“would present a substantial question and that there is good
cause for a stay.” Fed. R. App. P. 41(d)(2)(A); Nanda v. Bd. of
Trs. of Univ. of Ill., 312 F.3d 852, 853 (7th Cir. 2002)
(Ripple, J., in chambers). This standard requires Banner to
demonstrate both “a reasonable probability of succeeding
on the merits” and “irreparable injury absent a stay.” Galdikas
1
v. Fagan, 347 F.3d 625 (7th Cir. 2003) (Ripple, J., in chambers).
A reasonable probability of success means “a reasonable
probability that four Justices will vote to grant certiorari and
a reasonable possibility that five Justices will vote to reverse
this court’s judgment.” Id.; Nanda, 312 F.3d at 853-54.
Banner advances three main arguments. First, it contends
that the court erred by interpreting Section 302(c)(5)(B) of
the Labor Management Relations Act so as not to require a
signed agreement to show the existence of a written agree-
ment between the parties. See Bricklayers Local 21 Pension
Fund, No. 02-3512, slip. op. at 12-19. Although Banner
contends that this is a matter of first impression, it does not
develop this argument in any way, much less cite authority
to suggest that the court’s conclusion was in error and that
four Justices would vote to grant certiorari.
Similarly, Banner also argues that the court’s decision
creates a conflict with Moglia v. Geoghegan, 403 F.2d 110 (2d
Cir. 1968). This argument, however, ignores the court’s dis-
cussion of the fact that the Second Circuit later clarified
Moglia in Brown v. C. Volante Corp., 194 F.3d 351, 355 n.1 (2d
Cir. 1999), stating that Moglia did not “graft a signature
1
Banner’s motion also could be denied simply because it does
not discuss the irreparable harm Banner would suffer if the stay
were denied. See Galdikas, 347 F.3d at 625; United States v. BBO
Seidman, 345 F.3d 465, 466 (7th Cir. 2003) (Ripple, J., in chambers)
(denying motion for stay that was “inadequate on its face”).
No. 02-3512 3
requirement onto Section 302(c)(5)(B).” See Bricklayers Local
21 Pension Fund, slip op. at 16-17 n.8. Therefore, even if this
court ultimately erred on this point, Banner cannot show a
split between the circuits that would favorably indicate
success for a petition for a writ of certiorari. See United States
v. Holland, 1 F.3d 454, 456 (7th Cir. 1993) (“A conflict among
the circuits is an accepted basis for the granting of the writ
of certiorari.”).
Finally, Banner makes much of its belief that its payments
to the trust funds were coerced by the appellees’ threats to
picket and strike. The district court, however, found the
testimony of Banner’s president to be unbelievable on this
issue, and, given the deference accorded such determina-
tions, Vollmer v. Publishers Clearing House, 248 F.3d 698, 706
(7th Cir. 2001), it is unlikely to succeed as the basis for a
petition for certiorari.
Conclusion
For the foregoing reasons, I deny the appellant’s motion
for a stay of the mandate.
STAY OF MANDATE DENIED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-15-04