Opinion
05 CV 2746 (JG).
February 10, 2006
DANIEL E. CLIFTON, ESQ., Lewis, Clifton Nikolaidis, P.C., New York, New York, Attorney for Plaintiff.
LYLE S. ZUCKERMAN, ESQ., Kauff McClain McGuire LLP, New York, New York, Attorney for Bovis Lend Lease Interiors, Inc., and Turner Construction Co.
MARK A. ROSEN, ESQ., McElroy, Deutsch, Mulvaney Carpenter, LLP, New York, New York, Attorney for Component Assembly Systems, Inc.,
JEFFREY S. DUBIN, ESQ., Huntington, New York, Attorney for Nastasi Associates.
STEVEN G. RUBIN, ESQ., Steven G. Rubin Associates, P.C., Melville, New York, Attorney for RJ Construction Corp.
GREGORY R. BEGG, ESQ., Peckar Abramson, P.C., River Edge, New Jersey, Attorney for Structure Tone, Inc. and Kajima.
ROBERT MARK WASKO, ESQ., GARY WIRTH, ESQ., Torre, Lentz, Gamell, Gary Rittmaster, LLP, Jericho, New York, Attorneys for Woodworks Construction, Inc.
JOHN HOWARD BYINGTON, III, Meyer Suozzi English Klein, P.C., Mineola, NY, Attorney for Proposed Intervenor Carpenter's Local 52.
MEMORANDUM ORDER
The plaintiff, Carpenter's Local 52, United Brotherhood of Carpenters and Joiners of America ("Local 52"), represents workers who perform drywall finishing work within the City of New York. On November 4, 2005, it moved to intervene in the above-captioned litigation pursuant to Fed.R.Civ.P. Rule 24(a). Local 52's purpose in seeking to intervene was to move for a stay of those proceedings pending resolution of certain unfair labor practice claims brought before the National Labor Relations Board ("NLRB").
On January 13, 2006, after the case had been settled via the entry of a consent injunction, Local 52 and defendant Nastasi Associates, Inc. ("Nastasi"), filed notices of appeal. Because I find that I do not have continuing jurisdiction, the motion is denied.
BACKGROUND
The above-captioned action is the latest in a decades-long dispute before this court. While it is unreasonable to assume familiarity with the entire history of the case, such familiarity is not necessary for the disposition of the instant motion. Suffice it to say that for decades, jurisdiction over the drywall finishing work that rightfully belonged to Drywall Tapers and Pointers of Greater New York, Local 1974 ("Local 1974") was wrongfully asserted by another union local — Local 530 of the Operative Plasterers' and Cement Masons' International Association ("Local 530").
Two of the dozens of prior decisions relating to this dispute provide a useful window into its details and complexities: my 2002 contempt adjudication, Drywall Tapers and Painters, Local 1974 v. Local 530 of the Operative Plasterers' and Cement Masons' Int'l Ass'n, 2002 WL 316411597 (E.D.N.Y. Nov. 19, 2002), and my March 17, 2005 decision modifying an injunction in Drywall Tapers and Painters, Local 1974 v. Local 530 of the Operative Plasterers' and Cement Masons' Int'l Ass'n, 2005 WL 638006 (E.D.N.Y. Mar. 17, 2005).
On March 17, 2005, I modified a preexisting area-wide injunction for the express purpose of putting Local 530 out of the drywall finishing business and requiring, inter alia and in essence, that drywall finishing work in the City of New York be the work of Local 1974. Shortly thereafter, a new drywall finishing local — Local 52 — came into existence, and work that was required by the March 17, 2005 injunction to be assigned to Local 1974 was assigned to Local 52 instead. Thus, on June 8, 2005, Local 1974 brought this case against four construction managers and four drywall finishing contractors because the terms of the March 17, 2005 injunction were not being followed. Five months after that action was commenced, on November 4, 2005, Local 52 moved to intervene.
A more detailed recitation of these events is set forth in my September 9, 2005 memorandum and order, see Drywall Tapers and Painters, Local 1974 v. Bovis Lend Lease Interiors, Inc., et al., 2005 WL 2205836 (E.D.N.Y. September 9, 2005), familiarity with which is assumed.
On December 16, 2005, after considerable effort by counsel for all parties, I entered a consent injunction that precluded the named defendants from "assigning drywall finishing work for projects located within the City of New York, or contracting or subcontracting for the performance of such work, in contravention of the New York Plan and its arbitration decisions known as `Green Book Decisions,' including without limitation Decision #191-6B." See Dec. 19, 2006 Amended Consent Injunction. The entry of that injunction ended the case as against all parties; as the injunction states "the case has been resolved." Id. at 4. I therefore ordered that additional submissions be made regarding the significance, if any, of the settlement on Local 52's motion to intervene. On January 13, 2006, both Local 52 and Nastasi filed notices of appeal from the Amended Consent Injunction.
The original consent injunction was amended on December 19, 2006, to eliminate some language not relevant here.
Oral argument on Local 52's motion to intervene was heard on January 20, 2006. At that time, I inquired into whether the filing of these notices of appeal had any adverse effect upon continuing jurisdiction in this court, and I invited written submissions on that issue.
DISCUSSION
The filing of a notice of appeal is a jurisdictional event — it "confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); see also Leonhard v. United States, 633 F.2d 599, 609-610 (2d Cir. 1980) ("Once a proper appeal is taken, the district court may generally take action only in aid of the appeal or to correct clerical errors as allowed by the Federal Rules of Civil (or Criminal) Procedure."); 16A Wright Miller § 3949.1. However, "[t]he divestiture of jurisdiction rule is . . . not a per se rule. It is a judicially crafted rule rooted in the interest of judicial economy, designed `to avoid confusion or waste of time resulting from having the same issues before two courts at the same time.'" United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (citing United States v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989); see Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004) ("notwithstanding a pending appeal, a district court retains residual jurisdiction over collateral matters, including claims for attorneys' fees."); Leonhard, 633 F.2d at 610 ("we see no efficiency to be gained by allowing a party arbitrarily to halt the district court proceedings by filing a plainly unauthorized notice which confers on this Court the power to do nothing but dismiss the appeal").Local 52 argues that I retain jurisdiction because the interlocutory appeal of a preliminary injunction does not divest jurisdiction over questions not to be raised or decided by the interlocutory appeal. Local 52 is correct that while the filing of a notice of appeal ordinarily divests the district court of jurisdiction over issues encompassed by the order being appealed, an exception is carved out when appeal is taken from an order granting or denying a preliminary injunction. Webb v. GAF Corp., 78 F.3d 53, 55 (2d Cir. 1996). The consent injunction in this case does not, however, fall within this exception. It is not an order granting or denying a preliminary injunction; rather, it is an order implementing a permanent injunction on consent of all parties. See id. at 55-56 ("quite different considerations are presented by a preliminary injunction that is entered prior to a final judgment on the merits, and a permanent injunction that constitutes a central component of such a final judgment.") Moreover, the exception to this rule for appeals from preliminary injunctions pursuant to 28 U.S.C. § 1292 is inapplicable because Local 52 has not been enjoined.
Thus, whether I have jurisdiction to decide Local 52's motion to intervene essentially depends on whether the issues raised by that motion overlap with the issues "involved in" Local 52's (or Nastasi's) appeal of the December 19, 2005 Amended Consent Injunction. See Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53 (2d Cir. 2004). I find that the motion to intervene is inextricably involved with the appeal. By filing an appeal from a consent injunction entered in a case to which it is not a party, Local 52 has placed the question of its rightful role in this case plainly at the door of the court of appeals. Thus, I do not have jurisdiction to decide this motion to intervene. See, e.g., Katz v. Berisford Int'l PLC, 96 Civ. 8695, 2000 U.S. Dist. LEXIS 17314, at *4 (S.D.N.Y. Nov. 17, 2000). Local 52 not only has its own pending appeal, but it can also seek relief by seeking intervention in the court of appeals in Nastasi's pending appeal. See Thwaites Place Associates v. Secretary of United States Dep't of Housing Urban Dev., 112 F.R.D. 189, 190 (S.D.N.Y. 1986) (denying motion to intervene for lack of jurisdiction, and noting that "a proposed intervenor can move during pendency of an appeal to intervene in the Court of Appeals"); see also Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.3d 298 (5th Cir. 1984).
CONCLUSION
Because this court no longer retains jurisdiction to decide it, Local 52's motion to intervene is denied.
So Ordered.