October 5, 2004.
Appeal from the United States District Court for the Northern District of Illinois, Martin C. Ashman, United States Magistrate Judge.
Robert B. Greenberg, Librado Arreola, Asher, Gittler, Greenfield, D'Alba, Chicago, IL, for Plaintiffs-Appellees.
Gerard C. Smetana, Smetana Avakian, Chicago, IL, for Defendant-Appellant.
ON MOTION TO RECALL THE MANDATE
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 litigation is presumed. See Bricklayers Local 21 Pension Fund v. Banner Restoration, Inc., 2004 WL 2102937 (7th Cir. Sept. 22, 2004).
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 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'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. BDO Seidman, 345 F.3d 465, 466 (7th Cir. 2003) (Ripple, J., in chambers) (denying motion for stay that was "inadequate on its face").
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 agreement between the parties. See Bricklayers Local 21 Pension Fund, 2004 WL 2102937, 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 discussion 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 requirement onto Section 302(c)(5)(B)." See Bricklayers Local 21 Pension Fund, 2004 WL 2102937, 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 determinations, 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.
For the foregoing reasons, I deny the appellant's motion for a stay of the mandate.
STAY OF MANDATE DENIED