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