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NATIONAL ASS'N OF COLLEGE BOOKSTORES, INC. v. CAMB

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 17, 1997

NATIONAL ASSOCIATION OF COLLEGE BOOKSTORES, INC., on behalf of itself and all its members, BOOKCRAFT, INC., d/b/a BEAVER BOOKSTORE, MICHIGAN COLLEGE BOOK COMPANY, INC., and SPARTAN SHOPS, INC., d/b/a SPARTAN BOOKSTORE, Plaintiffs, against CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC. and ADDISON WESLEY LONGMAN, INC., Defendants.

The opinion of the court was delivered by: SCHEINDLIN

OPINION AND ORDER

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiffs filed a Complaint on July 23, 1997, alleging violations of 15 U.S.C. § 13 (the "Robinson-Patman Act" or "the Act"). Plaintiffs seek an order enjoining defendant publishing companies from continuing to sell books pursuant to certain allegedly unlawful discount policies. Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), asserting that plaintiff National Association of College Bookstores, Inc. ("NACS") lacks standing to bring the action and that the Complaint fails to state a claim upon which relief can be granted. In an Opinion and Order dated November 17, 1997 ("Opinion"), I denied defendants' motion. See National Ass'n of College Bookstores v. Cambridge Univ. Press, 1997 U.S. Dist. LEXIS 18298, 97-5391 (S.D.N.Y. filed Nov. 17, 1997). Familiarity with the Opinion is assumed for the purposes of the discussion below.

 Defendants now move pursuant to Local Civil Rule 6.3 for reconsideration of the denial of their motion. Defendants move in the alternative for certification of the denial of the motion, pursuant to 28 U.S.C. § 1292(b), so that they may petition for leave to appeal under Fed. R. App. P. 5. For the reasons stated below, both motions are denied.

  I. Motion to Reconsider

 The legal standard by which a Rule 6.3 Motion for Reconsideration is decided is the same as that governing former Local Rule 3(j). Wishner v. Continental Airlines, 1997 U.S. Dist. LEXIS 15302, 94 Civ. 8239, 1997 WL 615401, at *1 (S.D.N.Y. Oct. 6, 1997) (citing Jones v. Trump, 971 F. Supp. 783, 785 n.2 (S.D.N.Y. 1997)). Pursuant to Local Rule 6.3, a party seeking reargument must demonstrate that the Court overlooked controlling decisions or factual matters "that might materially have influenced its earlier decision." Anglo American Ins. Co. v. Calfed, Inc., 940 F. Supp. 554, 557 (S.D.N.Y. 1996) (quoting Morser v. AT & T Info. Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989)); see also Frankel v. ICD Holdings S.A., 939 F. Supp. 1124, 1126 (S.D.N.Y. 1996). Local Rule 6.3 "is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been fully considered by the court." Wishner, 1997 WL 615401, at *1 (citing Calfed, 940 F. Supp. at 557); Ades v. Deloitte & Touche, 843 F. Supp. 888, 892 (S.D.N.Y. 1994). The decision to grant or deny a motion for reargument is within the sound discretion of the district court. See Cohen v. Koenig, 932 F. Supp. 505, 507 (S.D.N.Y. 1996); Schaeffer v. Soros, 1994 U.S. Dist. LEXIS 15508, 92 Civ. 1233, 1994 WL 592891, at *1 (S.D.N.Y. Oct. 31, 1994).

 The defendants fail to meet this standard. They argue that the Court reached an erroneous conclusion in relying too heavily on NACS' general claims that its members are engaged in actual competition with Amazon.com. As a result, they contend, the Court overlooked the fact that the bulk of the Complaint was devoted to allegations that NACS member stores are engaged in competition with traditional bookstores. The Court, however, did not overlook this fact; rather, it concluded that it was not necessary to decide the question of whether the allegations of competition with traditional bookstores were adequate for associational standing in light of the fact that actual competition could be proved at trial by association-wide evidence that all NACS members compete with Amazon.com. See Opinion at 12. In fact, contrary to the defendants' implicit assertion, had I reached the issue, it is likely that I would have found associational standing to be appropriate even without the allegations of competition with Amazon.com. *fn1" Defendants have therefore failed to identify a factual matter ignored by the Court "that might materially have influenced its earlier decision," Anglo American Ins. Co., 940 F. Supp. at 557, and do not contend that the Court overlooked any controlling decision.

 II. Motion for Certification Pursuant to 28 U.S.C. § 1292(b)

 In the alternative, defendants seek certification of the issue of NACS' standing to bring the action under § 1292(b). This section provides that a district judge shall only certify for interlocutory review an order that, inter alia, "involves a controlling question of law as to which there is substantial ground for difference of opinion." 28 U.S.C. § 1292(b). Certification under § 1292(b) should be "strictly limited" because "only exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Flor v. BOT Financial Corp., 79 F.3d 281, 283 (2d Cir. 1996) (quoting Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21 (2d Cir. 1990)). Thus, the Second Circuit has "urged the district courts to exercise great care in making a § 1292(b) certification." Westwood Pharmaceuticals, Inc. v. National Fuel Gas Distribution Corp., 964 F.2d 85, 89 (2d Cir. 1992). The decision as to whether certification should be granted "rests within the discretion of the district court." In re Chase Manhattan Corp., 1991 U.S. Dist. LEXIS 15052, No. 90-6092, 1991 WL 224311, at *1 (S.D.N.Y. Oct. 21, 1991).

 Defendants do not meet this difficult test, because there is no "substantial ground for difference of opinion" within the meaning of § 1292(b) as to whether NACS has associational standing to bring this suit. First, there is considerable precedent for the proposition that an association may have standing to bring a Robinson-Patman Act claim for injunctive relief without member-by-member evidence of actual competition with favored competitors. See American Booksellers Ass'n v. Houghton Mifflin Co., Inc., 1995 U.S. Dist. LEXIS 2522, at *12-17, No. 94-8566 (S.D.N.Y. March 3, 1995); American Booksellers Ass'n v. Random House, Inc., 1996 U.S. Dist. LEXIS 12775, at *13-22, No. 96-0030 (S.D.N.Y. August 12, 1996); Northern Cal. Booksellers Ass'n v. Hearst Corp., No. C-82-1468-THE (N.D. Cal. filed Apr. 13, 1982). Defendants repeatedly assert that these cases were decided erroneously, but fail to cite any precedent directly supporting their position. Second, even if member-by-member evidence of actual competition were required, NACS could provide it in a manner compatible with associational standing, given the increasing presence of internet-based bookstores. See Opinion at 11-12. *fn2" Thus, even if defendants' largely unsupported legal theory is correct, it does not require a different result in this case. While courts might reach different conclusions as to defendants' standing arguments, that does not mean that this motion involves a controlling issue of law as to which there is a substantial ground for disagreement. Accordingly, this is not the "exceptional" case that warrants § 1292(b) certification. Flor, 79 F.3d at 284.

 IV. Conclusion

 Because this Court did not overlook any fact that might materially have affected its earlier decision, and because there is no substantial ground for disagreement as to a controlling issue of law within the meaning of 28 U.S.C. § 1292(b), defendants' motion for reargument and reconsideration or certification is denied.

 SO ORDERED:

 Shira A. Scheindlin

 U.S.D.J.

 Dated: New York, New York

 December 17, 1997


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