Opinion
90 Civ. 5722 (CSH).
May 16, 2006
MEMORANDUM OPINION AND ORDER
The government has filed a motion "for reconsideration of the Court's Memorandum Opinion and Order dated January 12, 2006" (hereinafter "the Opinion"). The Opinion, familiarity with which is assumed, is reported at 409 F. Supp. 2d 439 (S.D.N.Y. 2006). The Opinion denied the government's motion to hold the District Council and its president in contempt of the Consent Decree previously entered in this case.
Government's Main Brief at 1.
The government's papers do not identify the procedural vehicle for its "motion for reconsideration." Presumably, however, the motion is made pursuant to Local Civil Rule 6.3, which requires the moving party to serve a memorandum "setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Given that demanding requirement, it is generally held that a motion for reconsideration will be denied "unless the moving party can point to controlling decisions or data that the court overlooked: matters, in other words, that might reasonably be expected to alter the conclusion reached by the Court." Valentine v. Metropolitan Life Ins. Co., No. 85 Civ. 3006, 2005 WL 1278524, at *2 (S.D.N.Y. May 31, 2005) (citation omitted). Moreover, the successful movant for reconsideration "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Koehler v. Bank of Bermuda Ltd., No. M18-302, 2005 WL 1924746, at *1 (S.D.N.Y. Aug. 10, 2005) (citation omitted).
After careful consideration, I conclude that the government's attack upon the Opinion must take the form of a direct appeal. The government does not, and in the circumstances of the case cannot, meet the requirements of a Rule 6.3 motion for reconsideration.
The same restrictive considerations would apply if the government's motion were to be regarded as an application for relief under Fed.R.Civ.P. 59(e). See Ruiz v. Commissioner of Dept. of Transp. of City of New York, 687 F. Supp. 888, 890 n. 3 (S.D.N.Y. 1988) (citing cases).
Principally that is because the government cannot point to controlling decisions or factual matters which the Court overlooked. It was not that kind of an Opinion. The Opinion did not depend upon the resolution of contested factual issues or the application of disputed or conflicting rules of case law. Rather, the Opinion identified the Consent Decree as the document which "controls the conduct, rights and obligations of the District Council, its officers, and the government," and also "explicitly creates and implicitly limits the powers of this Court." 409 F. Supp. 2d at 442. The Opinion turned principally upon the answer to this question: "does the Consent Decree have anything to do with collective bargaining agreements?" Id. at 451.
For the reasons stated in detail in the Opinion and not here repeated, I held that the District Council and its president could not be held in contempt of the Consent Decree for entering into collective bargaining agreements in 2001 which altered the operation of the Job Referral Rules without first giving the government notice of its intent to do so. The government disagrees with that holding because it reads the Consent Decree and its incorporated Job Referral Rules differently. The government's reading may be correct; or, to state the matter more precisely, the government may be able to persuade the Court of Appeals that its reading is correct. But the District Council is right when it argues, in opposition to this motion for reconsideration, that the only proper procedural path for the government to trod is a direct appeal. Accordingly the Court denies the government's motion for reconsideration.
It may be appropriate for me to add three comments.
First, the government has previously filed a timely notice of appeal from the Opinion and its accompanying Order. Does that filing oust this Court's jurisdiction to the extent that I should not have written this memorandum? I think not. There is Second Circuit authority supporting the proposition that a District Court can consider a motion for reconsideration even after the filing of a notice of appeal, although of course it could not grant such a motion unless the Court of Appeals vacates the notice and remands the case to the District Court to allow that action. See Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992) (Rule 60(b) motion); Ryan v. United States Lines Co., 303 F.2d 430, 433-34 (2d Cir. 1962) (same). But that consideration does not arise in the case at bar.
Second, if the Second Circuit allows the government's appeal, holds the District Council and its president in contempt of the Consent Decree, and remands the case to this Court for the fashioning of an appropriate remedy, my present inclination would be to modify the Job Referral Rules so that requests by employers for particular carpenters would count against the employer's share of the 50/50 Rule distribution of workers.
Third, should the Second Circuit affirm the Opinion, I perceive nothing in that Opinion or anything else presently in the case which would bar the government from moving to amend the Consent Decree to accomplish the government's desired interpretation of it. As to that possible issue, I intimate no present view.
The government's motion for reconsideration is denied.
It is SO ORDERED.