The opinion of the court was delivered by: WILLIAM C. CONNER
This action is brought by seven plaintiffs who have previously asserted claims under the Patterson Consent Decree. In the present action, plaintiffs seek the same relief they sought in Claim 255 -- to be placed on the Group I list of the New York Times (the "Times"). The Complaint names the Administrator as defendant and brings suit pursuant to the provisions of the Administrative Procedure Act (the "APA"), alleging violations of 5 U.S.C. §§ 702, 706(1), and 706(2)(A), (D), and (F). Plaintiffs subsequently filed an Amended Complaint in which they add the Times as a defendant and assert jurisdiction under Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. The Court deemed the document a motion for leave to amend pursuant to Rule 15(a), Fed. R. Civ. P., in view of the fact that the Administrator had already filed an answer in the instant action. This Court dismissed the Complaint against the defendant Administrator for lack of subject matter jurisdiction, the defendant not being an "agency" as that term is defined in 5 U.S.C. §§ 551 and 701. The Court also denied plaintiffs' motion for leave to file the proposed Amended Complaint on the grounds of res judicata and failure to state a claim under Section 301.
Propriety of Moving Under Rule 52(b) and Rule 59(e)
Fed. R. Civ. P. 52(b) states in relevant part:
Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly.
Fed. R. Civ. P. 59(e) reads:
A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.
Some courts have held that Rules 52(b) and 59(e) apply only to judgments entered after a trial. See Hill v. Bethlehem Steel Corp., 729 F. Supp. 1071, 1072 n.1 (E.D. Pa. 1989), aff'd, 902 F.2d 1560 (3d Cir. 1990). Others have rejected such motions to the extent that they are brought under Rule 52(b), but not under Rule 59(e). See All Hawaii Tours, Corp. v. Polynesian Cultural Center, 116 F.R.D. 645, 648 (D. Haw. 1987), rev'd in part on other grounds, aff'd in part without opinion, 855 F.2d 860 (9th Cir. 1988) ("A motion to amend findings under Rule 52(b) does not lie where findings of fact are unnecessary under Rule 52(a)."); see also Rapoport v. Banco Mexicano Somex, 1989 WL 34043 (S.D.N.Y. 1989) (Rule 52 deals only with the district court's findings after a bench trial). Courts in this circuit, however, have allowed a motion to amend an opinion and order dismissing the action or granting summary judgment to be brought under Rule 59(e). See, e.g., Park South Tenants Corp. v. 200 Central Park South Assocs., 754 F. Supp. 352 (S.D.N.Y.), aff'd, 941 F.2d 112 (2d Cir. 1991) (considering plaintiff's motion to reconsider dismissal of action under Fed. R. Civ. P. Rules 59(e), 60(a), 60(b), and Local Rule 3(j)); Travelers Ins. Co. v. Buffalo Reinsurance Co., 739 F. Supp. 209 (S.D.N.Y. 1990) (vacating summary judgment upon motion under Rule 59(e) and Local Rule 3(j)). Accordingly, plaintiffs' motion to alter or amend the judgment, essentially a motion for reargument, will be considered under Rule 59(e).