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May 8, 1996

BUILDING INDUSTRY FUND. et al., Plaintiffs,

The opinion of the court was delivered by: ROSS


 ROSS, United States District Judge:

 Plaintiffs have moved for reconsideration of this court's Opinion and Order of February 8, 1996 (the "Order"). Defendant Local Union No. 3 of the International Brotherhood of Electrical Workers, AFL-CIO ("Local 3") has also moved for reconsideration of the Order. For the reasons stated herein, plaintiffs' motion is denied, and Local 3's motion is granted in part and denied in part. In addition, plaintiffs' request for entry of a partial final judgment pursuant to Fed.R.Civ.P. 54(b) is denied.


 The standard controlling a motion for reargument under Local Civil Rule 3(j) is the same as that governing a motion to amend a judgment pursuant to Fed.R.Civ.P. 59(e). Ades v. Deloitte & Touche, 843 F. Supp. 888, 891 (S.D.N.Y. 1994); Lotze v. Hoke, 654 F. Supp. 605, 607 (E.D.N.Y. 1987). A plaintiff must demonstrate either that there has been an intervening change of controlling law, that there is new evidence that bears upon the issues decided, or that the court overlooked controlling decisions or factual matters that were put before it on the underlying motion. Ades, 843 F. Supp. at 891. Furthermore, a party may not advance new facts, issues or arguments not previously presented to the court. See Caribbean Trading & Fidelity Corp. v. Nigerian National Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991), cert. denied, 504 U.S. 910, 118 L. Ed. 2d 547, 112 S. Ct. 1941 (1992).

 I. Plaintiff's motion for reconsideration

 In its Order of February 8, 1996, the court dismissed all of plaintiffs' claims against defendants under the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961-1968, and §§ 1 and 2 of Sherman Anti-Trust Act, 15 U.S.C. §§ 1 and 2. The court also dismissed all of plaintiff's remaining claims against defendants New York Electrical Contractors Association, Inc. ("NYECA"), Association of Electrical Contractors, Inc. ("AECI"), and Joint Industry Board of the Electrical Industry ("JIB"). Plaintiffs seek reconsideration of the Order as it relates to JIB. Plaintiffs argue that the court overlooked evidence that established the existence of genuine issues of material fact, precluding summary judgment for JIB.

 The court does not agree. As discussed in the Order, the legal premise of plaintiffs' claims against JIB is misguided. Rather than arguing that Local 3 and JIB conspired for a particular illicit purpose, they try to establish that all defendants are engaged in an all-encompassing "Conspiracy." Under their theory of the case, because all defendants are associated with one another with the common goal of forcing plaintiff contractors to negotiate with Local 3, action of one defendant can be attributed to all the other defendants. The court rejects this novel theory of liability. The essence of a conspiracy is not simply a commonality of interest. It involves an agreement by two or more people to accomplish a specific illegal objective. See, e.g., United States v. Felix, 503 U.S. 378, 389-90, 118 L. Ed. 2d 25, 112 S. Ct. 1377 (1992) ("The 'essence' of a conspiracy offense 'is in the agreement or confederation to commit a crime.'") (quoting United States v. Bayer, 331 U.S. 532, 542, 91 L. Ed. 1654, 67 S. Ct. 1394 (1947)). As discussed previously, plaintiffs have not identified evidence in the record that would demonstrate either that JIB committed acts of racketeering, or that it agreed with Local 3 to violate any provision of either RICO or the Sherman Act. In the absence of such evidence, plaintiffs' conspiracy claims cannot stand. See Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 79 L. Ed. 2d 775, 104 S. Ct. 1464 (1984) ("The antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective.") (citations and internal quotation marks omitted); Hecht v. Commerce Clearing House, 897 F.2d 21, 25 ("The core of a RICO conspiracy is an agreement to commit predicate acts . . . ."). All that plaintiffs have demonstrated is that certain members of Local 3--some of whom were also employee representatives of JIB--engaged in certain allegedly illegal actions.

 The specific facts that plaintiffs have cited in the instant motion do not alter this conclusion. Although the court did not specifically refer to all of these incidents in its opinion, it considered each of them. For the sake of thoroughness, the court will elaborate on its reasoning concerning the specific that plaintiffs cite.

 Plaintiffs first point to statements in the affidavit of Frank Micelotta, who stated that two members of Local 3, Angelo Granata and Salvatore Bruzzese, accosted him in 1975 and threatened to throw him down an elevator shaft if he testified before the National Labor Relations Board. This incident occurred some eighteen years before this action was filed--a detail plaintiffs do not mention in their motion papers--and its probative value is therefore slight. In any case, Micelotta does not identify any clear link between JIB and this action, beyond the fact that "at that time, I was aware that Mr. Granata was also a trustee of [JIB]." Pl. Ex. L, at P 11.

 Micelotta also referred to an incident in 1980--some thirteen years before this action was filed--in which his company, plaintiff Expert Electric Co., submitted the lowest bid for a particular electrical contracting job. He stated that:


Subsequent to the submission of Expert's bid, Leonard Feinberg of Feinberg Electric telephoned me and told me that individuals from the JIB and Local 3 had used their influence to have the job put out for rebidding. I believed that Mr. Feinberg was talking about Mr. Granata, a trustee of the JIB, and that Mr. Granata had used his influence to have the job rebid.

 Pl. Ex. L, at P 16. Leaving aside the fact that Feinberg's statement is inadmissible hearsay, *fn1" Micelotta's description of this incident is insufficient to raise a genuine issue of material fact concerning JIB's involvement in any unlawful activity. Even if the court assumes the truth of the statement that "individuals from the JIB and Local 3 had used their influence to have the job put out for rebidding," that fact would not suggest that JIB either engaged in any predicate acts of racketeering or agreed to engage in such acts. Nor is a single, vague reference to JIB having used its "influence" on Local 3's behalf sufficient to support an inference of an antitrust conspiracy, in the absence of any other evidence in the record that would support such a conclusion. *fn2"

 Plaintiffs next point to a series of statements involving Thomas Van Arsdale, the business manager of Local 3, who was also one of Local 3's representatives on JIB. These allegations, which were discussed in the court's previous opinion, also do not suggest JIB's involvement in illegal activity. Plaintiffs have identified no specific evidence linking JIB to any of the incidents they describe, other than the fact that Van Arsdale was simultaneously a union official and a member of JIB. Plaintiffs also point to activities by Bernard Rosenberg, a representative of Local 3 and a member of JIB. These allegations suffer from the same defect. The fact that Rosenberg was a member of JIB is not, on its own, evidence of JIB's involvement in his activities.

 Plaintiffs also refer to a letter that Richard Wishnie, the assistant chairman of JIB, *fn3" wrote in 1989 to the New York State Attorney General and the chairman of the Port Authority concerning plaintiff TAP Electrical Contracting Service, Inc. ("TAP"). Jack Cohen, the former assistant chief engineer for the Port Authority, stated in his affidavit that it was his "impression" that Wishnie's letter was part of an effort to have the Port Authority terminate a contract with TAP, which had been barred from bidding on New York State jobs. He also stated that, in July of 1990, the Port Authority decided not to award a contract to TAP, despite the fact that TAP had submitted the lowest bid for the job. With respect to this decision, he stated, "I believe the letters written by Local 3 and Richard Wishnie served to influence the Port Authority's decision to honor the New York State debarment of TAP." Pl. Ex. C, at § 11.

 If Wishnie's letter had been produced, it would have qualified as evidence of official action by JIB. As described in Cohen's affidavit, however, Wishnie's letter is not indicative of any wrongdoing by JIB. It is clear that one of JIB's primary functions is to monitor compliance with prevailing wage laws in the New York area. Sending a letter to the Port Authority informing it of violations by a potential bidder is consistent with that function. Cohen's affidavit--which is based entirely on "impressions" and "beliefs" unsupported by facts--does not suggest that JIB exerted any improper pressure on the Port Authority. Rather, it merely states that JIB brought certain truthful facts to the Port Authority's attention.

 Finally, plaintiffs point to the affidavit of Anthony Cardillo, the president of TAP. Cardillo described an incident in 1982 in which a general contractor refused to hire TAP for a job, even though TAP had submitted the lowest bid for the job. He stated that the contractor "informed me that he had received calls from [JIB]. Thereafter, TAP was not awarded the contract and a Local 3 contractor received the job." Again, this statement is inadmissible hearsay, which may not be relied upon to raise an issue of fact on this motion. Disregarding that fact, however, it is clear that Cardillo's statement is not probative of anything. Cardillo does not describe the content of the phone calls from JIB. He offers no evidence that JIB did anything improper. He does not even state that he believed JIB's actions had some effect on the contractor's decision.

 Disregarding those allegations that are nothing more than speculation or innuendo, the only evidence which plaintiffs have put forward against JIB is the fact that Granata, Van Arsdale, and Rosenberg were all members of JIB. Plaintiffs' characterization of these individuals as "representatives of the JIB" is misleading. As discussed in the court's previous opinion, JIB is an entity established by a collective bargaining agreement of January 1, 1943. It consists of thirty representatives, fifteen of whom are chosen by Local 3, and ten chosen by NYECA, four chosen by AECI, and one chosen by independent contractors. Plaintiffs describe Granata, Van Arsdale, and Rosenberg as "employee representatives of the JIB." In fact, they are employee representatives to the JIB. In other words, their function on JIB is to represent the members of Local 3. That fact does not mean that they necessarily represent JIB in all of their actions. Plaintiffs have not identified any evidence that suggests that JIB authorized the actions of these individuals, or appointed them as agents for any purpose. Thus plaintiffs' contention that these men were "agents" of JIB is unsupported by anything in the record.

 Plaintiffs' recourse to the doctrine of "apparent authority" is unavailing. *fn4" Apparent authority is defined as "the power to affect the legal relations with another by transactions with third persons, professedly as agent for another, arising from and in accordance with the other's manifestations to such third persons." Restatement (Second) of Agency § 8 (1957); see also American Society of Mechanical Engineers v. Hydrolevel Corp., 456 U.S. 556, 566 n.5, 72 L. Ed. 2d 330, 102 S. Ct. 1935 (1982) [hereinafter ASME ] (quoting Restatement definition). This doctrine applies most commonly to cases involving contracts and conveyances. For example, if JIB had manifested to plaintiffs that Van Arsdale had power to enter into contracts on its behalf, without actually granting him such authority, it could nonetheless be bound by any contracts that he entered into in JIB's name.

 As the Supreme Court recognized in ASME, however, the apparent authority doctrine may also apply in tort cases in the federal system. In ASME, the plaintiff manufactured a new type of low-water fuel cutoff to be used in heating boilers. Two officers of its principal competitor also served as the chairman and vice chairman of a committee of the American Society of Mechanical Engineers, which had been entrusted with the job of drafting, revising, and interpreting its safety code provisions concerning low-water fuel cutoffs. These two men colluded with one another to draft a statement condemning fuel cutoffs of the type manufactured by the plaintiff. Although formally described as an "unofficial communication," the statement was sent out on ASME stationary and was signed by the secretary of the committee, a full-time ASME employee. 456 U.S. at 560-62. The Court held that, even though the two men were acting in their employers' interests, rather than ASME's interests, and even though ASME never ratified their actions, ASME could still be held liable under the apparent authority doctrine. Id. at 570-74. In many of the cases cited by plaintiffs, courts within this circuit have continued to rely on apparent authority as a basis for holding organizations liable for the tortious acts of their members. See Jund v. Town of Hempstead, 941 F.2d 1271, 1278-81 (2d Cir. 1991) (holding that town and county political party committees could be liable under 42 U.S.C. § 1983 for acts of members where committees authorized activities, even absent membership ratification); Amendolare v. Schenkers International Forwarders, 747 F. Supp. 162, 170-71 (E.D.N.Y. 1990) (holding that labor union could be liable under RICO for actions of union officials undertaken with apparent authority).

 The apparent authority doctrine, however, does not automatically make an organization such as JIB liable for all actions committed by its members. The doctrine applies only when a principal makes a manifestation to a third party that the agent has authority to act on its behalf. Restatement § 8 cmt a ("Apparent authority results from a manifestation by a person that another is his agent, the manifestation being made to a third person and not, as when authority is created, to the agent."); see also ASME, 456 U.S. at 566. Here, plaintiffs have presented no evidence of any manifestations made by JIB that might have created the impression that JIB had authorized the actions of Granata, Van Arsdale, and Rosenberg. With regard to the incidents not based only on sheer speculation, they have not presented evidence that anyone--other than perhaps Micelotta--understood these individuals to be acting on behalf of JIB. *fn5" All they have shown is that they were in fact members of JIB.

 Plaintiff's complaint that the court "impermissibly crossed the well-defined line from issue finding to issue resolution," Pl. Mem. at 2, in its Order is unwarranted. To defeat a motion for summary judgment, a plaintiff must put forward sufficient probative evidence to establish the existence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (noting that "the plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."). Plaintiffs now argue that "it is well-recognized that the existence of an agency relationship, as well as the scope of the agent's authority, is a question of fact for a jury, and thus inappropriate for summary judgment," Pl. Mem. at 12, citing, among other authorities, Cabrera v. Jakabovitz, 24 F.3d 372, 386 (2d Cir.), cert. denied, 513 U.S. 876, 115 S. Ct. 205, 130 L. Ed. 2d 135 (1994). That position misstates the applicable law. In Cabrera, the Second Circuit stated that " unless the facts are insufficient to support a finding of agency or there is no dispute as to the historical facts, the question of agency should be submitted to the jury . . . ." Id. (emphasis added). Here, for the reasons discussed above, plaintiffs have not submitted any facts that support their claim of agency, under either an actual authority or an apparent authority theory. No reasonable juror could conclude that an agency relationship existed on the basis of the facts plaintiffs have presented. Summary judgment in JIB's favor was therefore appropriate.

 II. Local 3's Motion for Reconsideration

 In its prior Order, the court denied in part Local 3's motion for summary judgment as to plaintiffs' claims under § 303 of the Labor Management Relations Act, 29 U.S.C. § 187, and as to their state law tort claims, with the exception of those claims that are clearly time-barred. Local 3 now seeks reconsideration of that portion of the Order, claiming that the court should have dismissed outright the claims of plaintiffs All-Phase Electric Home Power Corp. ("All-Phase"), Expert Electric, Inc. ("Expert"), Kolsch Electric. Inc. ("Kolsch"), and TAP. In addition, Local 3 argues that the court should dismiss outright plaintiffs' state law claims.

 With respect to the first argument, Local 3 first notes that, in its prior Order, the court held that, under the four-year statute of limitations for claims under § 303, plaintiffs cannot recover damages for any injury that occurred prior to June 18, 1989. Local 3 argues that plaintiffs have not established that any of the four plaintiffs it has identified suffered any injury on or after that date. The court agrees as to All-Phase, Expert, and Kolsch, but disagrees as to TAP.

 To recover under § 303(b), a plaintiff must demonstrate an injury to business or property caused by a labor organization's violation of 29 U.S.C. § 158(b)(4). As Local 3 notes, plaintiffs have identified only a single instance in which a threat or secondary boycott caused injury to All-Phase's business or property. That incident occurred in 1987. Plaintiffs have not produced any evidence of injury to plaintiff Kolsch. With respect to plaintiff Expert, plaintiffs have produced evidence of a meeting in 1990 at which Van Arsdale attempted to pressure Anthony Cardillo, Eugene Iovine, Gaspare Lipari, and Frank Micelotta to sign collective bargaining agreements with Local 3. Although this incident occurred within the limitations period, Local 3 is correct that Micelotta, the president of Expert, did not actually describe any injury to his business or property in the wake of this threat. Indeed, the latest injury that Micelotta described occurred in 1984. As the court overlooked these deficiencies in its prior order, reconsideration is appropriate.

 Local 3 also contends that plaintiffs have not identified any evidence of injury to TAP that occurred within the limitations period. That contention is inaccurate. As plaintiffs note, Cardillo's affidavit refers to incidents in 1990 and 1993 in which TAP failed to get contracts. In light of the allegations concerning Van Arsdale's threats in 1990, these statements are sufficient to raise genuine issues of material fact. The court therefore declines to reconsider its decision as to plaintiff TAP.

 With respect to plaintiff's state law claims, Local 3 argues that it is entitled to summary judgment (1) because these claims are preempted by federal law, and (2) because plaintiff has not demonstrated that the actions of any individuals were authorized or ratified by the union membership. Local 3 acknowledges that it did not present these arguments in its prior motion papers. Since a party may not advance new legal arguments on a motion for summary judgment, the court declines to consider these arguments at this time. To do so would prejudice plaintiffs, who have not had an opportunity to present factual material to respond to Local 3's new arguments.

 Because the court must rule on the new legal issues presented by Local 3, it will treat Local 3's arguments concerning the state law claims as a new motion for summary judgment. Accordingly, plaintiffs are ordered to show cause by May 15, 1996, why summary judgment should not be granted for defendants on Count Eight of the complaint on the grounds identified by Local 3 in its motion for reconsideration. Plaintiffs may show cause by submitting any additional factual material or legal argument that would be appropriate in a motion under Fed.R.Civ.P. 56. Local 3 shall file any reply papers by May 20, 1996. The court will thereafter decide the motion expeditiously, so as not to delay trial of this matter.

 III. Plaintiff's motion for entry of partial judgment

 Plaintiffs have also asked the court to direct entry of a final judgment on all counts of their complaint as to defendants JIB, AECI, and NYECA, and on Counts One through Six, the RICO and antitrust claims, as to Local 3. The purpose of this application is to allow them to pursue an immediate appeal as of right of the court's Order of February 9, 1996, pursuant to 28 U.S.C. § 1291. Plaintiffs subsequently asked the court to defer consideration of that motion, pending a decision on the motions for reconsideration. Having resolved those motions, the court now denies the request for entry of final judgment, for the reasons stated below.

 In a case that involves multiple parties or multiple claims for relief, Fed.R.Civ.P. 54(b) permits the court to direct entry of a final judgment as to fewer than all of the claims or parties "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." This case involves both multiple claims and multiple parties. Certification is therefore appropriate if the court determines that no just reason exists for delay, and supports that determination with a reasoned analysis. See, e.g., Harriscom Svenska AB v. Harris Corp., 947 F.2d 627 (2d Cir. 1991). In making that determination, the court must decide whether plaintiff's RICO and antitrust claims are "inherently inseparable" from or "inextricably interrelated" to their § 303 and state law tort claims. See Ginett v. Computer Task Group, 962 F.2d 1085, 1096 (2d Cir. 1992) ("Only those claims "inherently inseparable" from or "inextricably interrelated" to each other are inappropriate for rule 54(b) certification.").

 At the outset, the court notes that this is not a case like Ginett, in which the district court had determined that the plaintiff was entitled to relief on one of his claims. See id. at 1090-91, 1097. In that case, failure to grant Rule 54(b) certification would have served to delay plaintiff's recovery. In this case, by contrast, the court has determined that plaintiffs are not entitled to relief on many of their claims. Regardless of whether the court issues a final judgment at this stage, they will not be able to recover on those claims unless they prevail on appeal, and subsequently at trial. Consequently, failure to direct entry of a final judgment will not significantly delay plaintiff's recovery in this case.

 Plaintiffs' principal argument in favor of Rule 54(b) certification is that, if this case proceeds to trial on the remaining claims, and this court's grant of summary judgment is subsequently reversed on appeal, they may be forced to proceed to another trial on the remaining claims. Plaintiffs argue that a second trial would involve many of the same issues and witnesses, and that they will incur substantial additional costs. This argument has some force. Rule 54(b) certification may be appropriate "where an expensive and duplicative trial could be avoided if, without delaying prosecution of the surviving claims, a dismissed claim were reversed in time to be tried with other claims." Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir.), cert. denied, 483 U.S. 1021 (1987); see also Hunt v. Mobil Oil Corp., 550 F.2d 68, 70 (2d Cir.) (affirming grant of Rule 54(b) certification where district judge made specific findings that second trial could pose additional expense to parties and that appeal would not delay trial or discovery), cert. denied, 424 U.S. 984 (1977).

 In this case, the court cannot conclude that an immediate appeal would not necessitate a significant delay in the prosecution of the remaining claims. That distinguishes this case from Hunt, in which the court granted Rule 54(b) certification after dismissing a claim on a motion under Fed.R.Civ.P. 12(b)(6). Thus the dismissal in Hunt occurred early in the action, prior to the commencement of discovery. Here, the parties have already engaged in extensive discovery, and the case is essentially ready for trial on the narrow issues delimited in the court's Order of February 8, 1996. If the court were to follow the course urged by plaintiffs, a trial on those claims would be delayed until the resolution of the appeal--a process that could take many months.

 Furthermore, it is possible that a trial on the remaining claims will dispose of issues that could render plaintiff's appeal moot. As noted above, to recover on their claims under § 303, plaintiffs will be required to show an injury to business or property caused by Local 3's activities. The same requirement of injury to business or property is a critical element of plaintiff's claims under RICO and the Sherman Act. See 18 U.S.C. § 1964(c); 15 U.S.C. § 15. Like the § 303 claims, the RICO and antitrust claims are governed by a four-year statute of limitations. See 15 U.S.C. § 15b; Agency Holding Corp. v. Malley-Duff & Associates, 483 U.S. 143, 156, 97 L. Ed. 2d 121, 107 S. Ct. 2759 (1987) (holding that four-year limitations period for antitrust statute applies to civil RICO actions). Furthermore, the actions that are alleged to be unfair labor practices for the purposes of § 303 are the same as the actions alleged to be predicate acts under RICO and actions in restraint of trade under the Sherman Act. Consequently, if the court were to enter final judgment on plaintiffs' RICO and antitrust claims, and a jury were to determine that some or all of the plaintiffs have not suffered any injury to their business or property, the RICO and antitrust claims might become moot. Under these circumstances, the court is persuaded that all of plaintiffs' claims in this action are inextricably interrelated, and that they should try the claims that remain in this action before proceeding to the Second Circuit. See Ginett, 962 F.2d at 1095 ("We should avoid the possibility that the ultimate disposition of the claims remaining in the district court could either moot our decision on the appealed claims or require us to decide issues twice.").


 For the foregoing reasons, plaintiff's motion for reconsideration is denied. Local 3's motion for reconsideration is granted in part, and this action is dismissed with prejudice as to plaintiffs All-Phase, Expert, and Kolsch. In all other respects, Local 3's motion for reconsideration is denied. Furthermore, the court having been informed by plaintiffs' counsel that plaintiff Cunardi Contracting, Inc. has discontinued its participation, this action is dismissed with prejudice as to Cunardi. It is hereby ordered that plaintiffs shall show cause by May 15, 1996, why summary judgment should not be granted in favor of defendants on Count Eight of the complaint, and that Local 3 shall file any reply papers by May 20, 1996. Plaintiffs' motion for entry of a partial judgment is denied.


 Allyne R. Ross

 United States District Judge

 Dated: May 8, 1996

 Brooklyn, New York

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