*

 This opinion is being released in typescript form.

In the

United States Court of Appeals

for the Seventh Circuit

 

No. 02-3512

BRICKLAYERS LOCAL 21 OF ILLINOIS 

APPRENTICESHIP AND TRAINING PROGRAM 

and MASONRY INSTITUTE, BRICKLAYERS 

LOCAL 21 PENSION FUND,

Plaintiffs-Appellees,

v.

BANNER RESTORATION, INCORPORATED,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 6633 – Martin C. Ashman, Magistrate Judge.

 

ON MOTION TO RECALL THE MANDATE

OCTOBER 5, 2004*

 
No. 02-3512 Page 2

1

 Banner’s motion also could be denied simply because it does

not discuss the irreparable harm Banner would suffer if the stay

were denied. See Galdikas, 347 F.3d at 625; United States v. BBO

Seidman, 345 F.3d 465, 466 (7th Cir. 2003) (Ripple, J., in chambers)

(denying motion for stay that was “inadequate on its face”). 

RIPPLE, Circuit Judge (in chambers). Appellant Banner

Restoration, Inc. (“Banner”)moves to stay the mandate pending the

filing of a petition for a writ of certiorari. Familiarity with this

court’s opinion in the underlying litigation is presumed. See

Bricklayers Local 21 Pension Fund v. Banner Restoration, Inc., No.

02-3512 (7th Cir. Sept. 22, 2004). 

To stay the mandate, Banner must show that its petition

“would present a substantial question and that there is good cause

for a stay.” Fed. R. App. P. 41(d)(2)(A); Nanda v. Bd. of Trs. of

Univ. of Ill., 312 F.3d 852, 853 (7th Cir. 2002) (Ripple, J., in

chambers). This standard requires Banner to demonstrate both “a

reasonable probability of succeeding on the merits” and “irreparable

injury absent a stay.” Galdikas v. Fagan, 347 F.3d 625 (7th Cir.

2003) (Ripple, J., in chambers).1 A reasonable probability of success

means “a reasonable probability that four Justices will vote to grant

certiorari and a reasonable possibility that five Justices will vote to

reverse this court’s judgment.” Id.; Nanda, 312 F.3d at 853-54.

Banner advances three main arguments. First, it contends

that the court erred by interpreting Section 302(c)(5)(B) of the

Labor Management Relations Act so as not to require a signed

agreement to show the existence of a written agreement between the

parties. See Bricklayers Local 21 Pension Fund, No. 02-3512, slip.

op. at 12-19. Although Banner contends that this is a matter of first

impression, it does not develop this argument in any way, much less
No. 02-3512 Page 3

cite authority to suggest that the court’s conclusion was in error and

that four Justices would vote to grant certiorari. 

Similarly,Banneralso argues thatthe court’s decision creates

a conflict with Moglia v. Geoghegan, 403 F.2d 110 (2d Cir. 1968).

This argument, however, ignores the court’s discussion of the fact

that the Second Circuit later clarified Moglia in Brown v. C. Volante

Corp., 194 F.3d 351, 355 n.1 (2d Cir. 1999), stating that Moglia did

not “graft a signature requirement onto Section 302(c)(5)(B).” See

Bricklayers Local 21 Pension Fund, slip. op. at 16-17 n.8.

Therefore, even if this court ultimately erred on this point, Banner

cannot show a split between the circuits that would favorably

indicate success for a petition for a writ of certiorari. See United

States v. Holland, 1 F.3d 454, 456 (7th Cir. 1993) (“A conflict among

the circuits is an accepted basis for the granting of the writ of

certiorari.”).

Finally, Banner makes much of its belief that its payments to

the trust funds were coerced by the appellees’ threats to picket and

strike. The district court, however, found the testimony of Banner’s

president to be unbelievable on this issue, and, given the deference

accorded such determinations, Vollmer v. Publishers Clearing

House, 248 F.3d 698, 706 (7th Cir. 2001), it is unlikely to succeed as

the basis for a petition for certiorari.

Conclusion

For the foregoing reasons, I deny the appellant’s motion for

a stay of the mandate.

STAY OF MANDATE DENIED