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May 19, 2005.

POWER TRAVEL INTERNATIONAL, INC., on behalf of itself and all others similarly situated, Plaintiffs,

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


The defendants American Airlines, Inc. ("American"), Continental Airlines, Inc. ("Continental"), Delta Airlines, Inc. ("Delta"), United Airlines, Inc. ("United"), and Northwest Airlines Corp. ("Northwest") (collectively the "Defendants") have moved under Local Civil Rule 6.3 for reconsideration of the opinion of this Court entered October 29, 2004 (the "Opinion") denying Delta's motion to strike class allegations from the complaint of plaintiff Power Travel International, Inc. ("Power Travel"). In the alternative, the Defendants have moved for a stay of this action and a certification of the Opinion of the Court of Appeals pursuant to 28 U.S.C. § 1292(b). For the reasons set forth below, Defendants' motions are denied.

Prior Proceedings

  The Power Travel putative class action complaint was filed in the Supreme Court of the State of New York and removed to this Court. It sought damages to travel agents arising out of the decision by the Defendants to decrease and eliminate commissions to travel agents who sold airline tickets through the Airlines Reporting Corporation ("ARC"). The Opinion was preceded by an opinion of April 17, 2003 which dealt with the motion of the Defendants to dismiss the complaint. An amended complaint was filed on May 7, 2003.

  The Opinion, familiarity with which is assumed, denied Delta's motion to strike the class action allegations in the amended complaint on res judicata grounds arising out of the summary judgment entered on October 30, 2002, dismissing the class action complaint in Hall v. United Air Lines, 296 F. Supp. 2d 652 (the "Hall Action"). The denial was based on the Defendants' acquiescence in the prosecution of this action despite their having alleged res judicata as an affirmative defense and having sought a stay of this action to permit preparation for trial of the Hall Action.

  The motion for reconsideration was fully submitted on January 5, 2005.

  The Reconsideration Standard

  The parties are not in disagreement as to the standard for reconsideration.

  Local Rule 6.3 provides the requirements for a motion for reconsideration: "There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." The issue then becomes whether or not the Defendants have demonstrated facts or authorities which were overlooked.

  Reconsideration Is Denied

  It is recognized that the Opinion is one of a limited number of decisions dealing with acquiescence to continued litigation as a bar to the invocation of res judicata. It is also recognized that the decision of the Defendants to eliminate travel agents' commissions resulted in litigation of an extended scope and complexity as described in the Opinion. Notwithstanding, the Defendants have not demonstrated authorities that were overlooked and the additional facts advanced are not determinative.

  The cases Defendants mention in their motion for reconsideration are those they cite from the Court's decision: Kendall v. Avon Prods., Inc., 711 F. Supp. 1178 (S.D.N.Y. 1989) (also discussed in Power's opposition and Defendants' reply brief); Calderon Rosado v. General Elec. Circuit Breakers, Inc., 805 F.2d 1085 (1st Cir. 1986); Brown v. Lockwood, 76 A.D.2d 721, 432 N.Y.S.2d 186 (2d Dep't, 1980); and Diversified Foods, Inc. v. First National Bank of Boston, 985 F.2d 27 (1st Cir. 1993) (also argued in Defendants' Reply Brief). The Opinion rejected Defendants' reading of Diversified Foods advanced in their reply brief. (Defendants' Motion to Strike Reply Brief at 8, 9).

  The Defendants have noted that the defendants in Albany Travel Co. v. Orbitz LLC, No. 2:02-CV-3459 (C.D. Cal.) (the "Albany Travel Action") did not include Northwest or Continental. However, the significance of the Albany Travel Action in the Opinion related to the distinction between the prompt action taken there to stay that proceeding in contrast to the absence of any court action sought in this action to stay this litigation. This absence of action, according to Power Travel, is explained by the rulings unfavorable to the Defendants in the Hall Action prior to the summary judgment decision. (Plaintiff's Memorandum in Oppos. p. 7-8).

  Defendants further explain the difference between the stay efforts in Albany Travel and the lack thereof in this action by referencing their motion to dismiss the complaint. However, neither in that motion nor in any other was the ...

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