Bricklayers IL 21 v. Banner Restoration , 384 F.3d 911 ( 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.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 6633 – Martin C. Ashman, Magistrate Judge.
ON MOTION TO RECALL THE MANDATE
OCTOBER 5, 2004*
*
This opinion is being released in typescript form.
No. 02-3512 Page 2
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 litigation is presumed. See
Bricklayers Local 21 Pension Fund v. Banner Restoration, Inc., No.
02-3512 (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).1 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 agreement 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
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 Page 3
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, 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.
Conclusion
For the foregoing reasons, I deny the appellant’s motion for
a stay of the mandate.
STAY OF MANDATE DENIED