845 F.Supp. 155 (1994)
Rose McCOY, Plaintiff,
v.
Gary M. GOLDBERG and Gary Goldberg & Company, Inc., Defendants,
Gary M. GOLDBERG and Gary Goldberg & Company, Inc., Third-Party Plaintiffs,
v.
Stephen RUFFINO, et al., Third-Party Defendants.
No. 89 Civ. 8151 (WCC).
United States District Court, S.D. New York.
March 11, 1994.
Parker Chapin Flattau & Klimpl, New York City, for third-party plaintiffs (Stephen G. Rinehart, of counsel).
Dorsey & Whitney, New York City, for third-party defendants NTS-Properties IV, NTS-Properties Associates IV, NTS-Properties V and NTS-Properties Associates IV (James V. Parravani, of counsel).

OPINION AND ORDER
WILLIAM C. CONNER, District Judge:
Plaintiff Rose McCoy instituted this action against defendants Gary Goldberg & Company, Inc., a securities and financial planning concern, and Gary M. Goldberg, its President (together, "Goldberg") asserting claims based on violations of the Racketeer Influenced and Corrupt Organizations Act ("Rico"), 18 U.S.C. § 1961 et seq., the federal securities *156 laws, common law fraud, and breach of fiduciary duty in connection with plaintiff's purchases of various limited partnership interests. Thereafter, Goldberg filed a Third-Party Complaint against eleven limited partnerships in which plaintiff had invested, seeking contribution and/or indemnification. This action is presently before the Court on Third-Party defendants' NTS-Properties IV, NTS-Properties Associates IV, NTS-Properties V, and NTS-Properties Associates V (collectively, "NTS") motion pursuant to Fed. R.Civ.P. 15(a) to amend their Answer to assert additional affirmative defenses and counterclaims against Goldberg. For the reasons set forth below, we grant NTS's motion and direct that they amend their Answer in accordance with this Opinion within 15 days.

BACKGROUND
The principal action in this case was commenced on December 8, 1989 and was then dismissed by this Court. Plaintiff thereafter filed an Amended Complaint on November 27, 1990, alleging that defendant/third-party plaintiff Goldberg solicited and urged her to invest the proceeds of her deceased husband's life insurance policy in twelve different limited partnerships that were manifestly unsuitable for her and contrary to the lowrisk, liquid investment program she informed Goldberg was necessary to secure her income.
On January 28, 1991, Goldberg filed the Third-Party Complaint against eleven limited partnerships in which plaintiff had invested, including NTS. The Third-Party Complaint alleges that in reliance on various representations made to Goldberg by NTS through sales literature, prospectuses, and other promotional material, Goldberg recommended that plaintiff invest in NTS. Plaintiff then did so. Thereafter, NTS allegedly did not live up to its "sales pitch," and plaintiff suffered substantial loss. The Third-Party Complaint alleges that Goldberg is entitled to contribution or indemnification from NTS because Goldberg specifically relied on NTS's representations in recommending that plaintiff invest in the limited partnerships.
On April 15, 1991, NTS filed its Answer to the Third-Party Complaint. Thereafter, in October of 1992 and prior to the jury trial of the principal action, this Court severed the third-party actions from the principal action against Goldberg pursuant to Fed.R.Civ.P. 42(b). The trial of the principal action occurred in October of 1992. The jury found for plaintiff solely on the breach of fiduciary duty claim and awarded compensatory damages in the amount of $872,714. We granted defendant's motion for a remittitur of the damages award and reduced the award to $579,677.85. A satisfaction of judgment in the principal action was entered on April 9, 1993.
Meanwhile, the third-party actions remained dormant from the time of severance until a recent status conference held on September 24, 1993. At the status conference, we set a discovery schedule with respect to the third-party claims.
The present motion was filed on December 2, 1993. In sum, NTS argues that because the jury found that Goldberg breached his fiduciary duty to McCoy, he is in breach of certain agreements he entered into with NTS which obligated him to comply with all legal requirements when offering interests in NTS to prospective purchasers. NTS seeks leave to amend its Answer to assert additional affirmative defenses and counterclaims against Goldberg based upon such breaches and upon the res judicata and/or collateral estoppel effect of the jury's findings.[1]

*157 DISCUSSION
Rule 15(a), Fed.R.Civ.P., allows a party to amend its pleading more than twenty days after it has been filed or after the pleading in response thereto has been served only with the court's permission. However, the rule notes that "leave shall be freely given when justice so requires." Accordingly, the Supreme Court has ruled that "[i]n the absence of any apparent or declared reason  such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.  the leave sought should ... be freely given." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).
The Second Circuit and this Court have interpreted the Foman standard to allow amendments, even if there was substantial delay in seeking the same, unless the movant has acted in bad faith, the amendment will prejudice the non-movant, or the amendment is futile. See Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir.1987) (motion to amend should be denied only for undue delay, bad faith, futility, or prejudice to opposing party; mere delay, absent a showing of bad faith or prejudice, is not alone grounds for denial of leave to amend) (citations omitted); Posadas de Mexico, S.A. de C.V. v. Dukes, 757 F.Supp. 297, 300 (S.D.N.Y.1991) (J. Conner) (party should be given leave to amend unless party's motion is product of bad faith or dilatory motive, or amendment will prejudice adversary or be futile).
Defendant/third-party plaintiff Goldberg argues that NTS's motion for leave to amend the Answer should be denied because NTS inexcusably delayed and acted in bad faith in seeking leave to amend and because Counts I, II, III, and IV of the proposed counterclaims are barred by the statute of limitations. We address each argument in turn.

A. Bad faith
Goldberg first argues that NTS acted in bad faith in waiting two and one-half years to attempt to amend its Answer. He contends that NTS' lack of excuse for delay shows NTS acted in bad faith. He also asserts that Count IV of the proposed counterclaims is a claim for malicious prosecution, brought in bad faith. We find no merit in either of Goldberg's arguments.
First, Goldberg does not point to any evidence that NTS acted in bad faith in waiting two and one-half years to seek leave to amend. On the contrary, the facts tend to negate that the delay was due to bad faith. While it is true that NTS filed its original Answer in April of 1991, the third-party actions were severed from the principal action in October of 1992 and thereafter remained dormant until September of 1993 when we held a conference for the purpose of activating those actions and setting discovery schedules. NTS shortly thereafter brought to our attention its desire to amend its Answer. Because the case was dormant due in part to the Court's action, it is difficult to conclude that the delay alone evidences bad faith.
Second, Count IV of the proposed counterclaims alleges that Goldberg breached his duty of good faith and fair dealing implied in the Dealer/Manager Agreements and Soliciting Dealer Agreements entered into by both parties by, inter alia, bringing and continuing to pursue a frivolous claim for indemnification against NTS. Contrary to Goldberg's assertion, Count IV is in no way a counterclaim in the nature of malicious prosecution as a defensive strategy; it is merely a claim for the breach of an implied duty.

B. Undue delay
Goldberg next argues that NTS unduly delayed in seeking leave to amend its Answer. Specifically, he claims that because NTS has neither shown good cause nor offered a reasonable explanation for its delay in asserting the proposed affirmative defenses and counterclaims, and because NTS was aware of the facts on which the proposed amendments are based at the time it filed its original Answer, we should deny leave to amend. Goldberg, in his moving papers, does not contend that he has been or will be prejudiced by an amendment to the proceedings *158 at this stage of the litigation; rather his argument is based solely on NTS' alleged undue delay.
We disagree with Goldberg's contention that delay alone is sufficient grounds for denying leave to amend. As discussed supra, such delay must be accompanied by either bad faith, prejudice, or futility to warrant our denying NTS the "opportunity to test [its] claim on the merits." Foman, 371 U.S. at 182, 83 S.Ct. at 230. The cases relied upon by Goldberg are not to the contrary.[2] Because Goldberg has not alleged and the facts do not show[3] that he will be prejudiced by an amendment at this stage in the proceedings, the two and one-half year delay alone is not grounds for this Court to deny NTS' motion.

C. Futility  Statute of Limitations
Defendant/third-party plaintiff Goldberg argues that NTS should not be granted leave to amend its Answer to add proposed Counterclaims I, II, III, and IV because doing so would be a futile exercise in that those claims are barred by the statute of limitations. See Diematic Mfg. Corp. v. Packaging Industries, Inc. 412 F.Supp. 1367, 1373 (S.D.N.Y. 1976) (court may consider the statute of limitations on a motion to amend); Long v. United States Dep't of Defense, 616 F.Supp. 1280, 1284 (E.D.N.Y.1985) (leave to amend is properly denied as being futile when the claim asserted in the proposed amendment is barred by the applicable statute of limitations). Proposed Counterclaims I through IV are for breach of the Dealer/Manager Agreements dated August 1, 1983 (re: NTS IV units) and August 1, 1984 (re: NTS V units) and the Soliciting Dealer Agreements dated August 16, 1983 (re: NTS IV units) and August 3, 1984 (re: NTS V units) entered into by Goldberg and NTS for the purpose of authorizing Goldberg to sell partnership interests in the NTS IV and NTS V limited partnerships. Goldberg claims that the alleged breach of the Agreements occurred, if at all, on the dates of the sale of the partnership interests; September 6, 1983 for NTS IV units, and November 30, 1984 for NTS V units. NTS now attempts, the argument goes, to add counterclaims I through IV at a time when the applicable limitations periods for those claims have expired.
We need not reach the statute of limitations issue, however, because the proposed *159 counterclaims are in the form of recoupment.[4] Recoupment is the right of a defendant to have the plaintiff's claim reduced by reason of a claim the defendant has against the plaintiff arising out of the same transaction on which the plaintiff's claim is based. 6 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1401 (2d ed. 1990); First Nat. Bank of Louisville v. Master Auto Serv. Corp., 693 F.2d 308, 310 n. 1 (4th Cir.1982). This purely defensive right, which precludes affirmative relief, exists notwithstanding the fact that the defendant's claims would otherwise be barred by the statute of limitations. See Distribution Services, Ltd. v. Eddie Parker Interests, Inc., 897 F.2d 811, 812 (5th Cir.1990). Here, Goldberg's claim that NTS should contribute to or indemnify him because he was found liable to plaintiff in connection with his advising plaintiff to invest in NTS IV and NTS V units is based on the relationship established between Goldberg and NTS by virtue of the aforementioned Agreements. The alleged breach of those Agreements and the damages related thereto arise out of the same transaction or series of events upon which Goldberg's claims against NTS are based.
Because the Agreements are governed by the laws of different states, we address each Agreement separately. The NTS IV Dealer Manager Agreement contains a choice of law provision specifying that Missouri law applies to disputes under the Agreement. Missouri law permits recoupment claims notwithstanding statute of limitations problems. See Northwest Radiation Oncology v. Goodstal, 735 S.W.2d 762, 766 (Mo.Ct.App.1987) ("Where the counterclaim is a defense or a setoff, i.e. a recoupment, the statute of limitations is no bar to the counterclaim ... Where the counterclaim seeks affirmative relief by asserting what is essentially a new cause of action ... the statute of limitations properly bars the counterclaim."). Therefore, the proposed counterclaims, insofar as they relate to the alleged breach of the NTS IV Dealer/Manager Agreement, may be brought in the form of recoupment so that they may defeat or diminish Goldberg's claims.
The NTS IV Soliciting Dealer Agreement does not contain a choice of law provision. NTS argues Kentucky law may apply. If so, then Kentucky's fifteen-year statute of limitations for contract actions does not bar the proposed counterclaims because the fifteen years has not yet expired. Ky.Rev.Stat.Ann. § 413.090. Goldberg argues that New York law applies. New York law permits recoupment claims notwithstanding statute of limitations problems.[5] Therefore, the proposed counterclaims, insofar as they relate to the alleged breach of the NTS IV Soliciting Dealer Agreement, may be brought in the form of recoupment so that they may defeat or diminish Goldberg's claims.
The NTS V Dealer Manager Agreement contains a choice of law provision specifying that Kentucky law applies to disputes under the Agreement. Kentucky's fifteen-year statute of limitations for contract actions does not bar the proposed counterclaims because the fifteen years has not yet expired.
Lastly, the NTS V Soliciting Dealer Agreement does not contain a choice of law provision. Again, regardless of whether Kentucky, Missouri, or New York law applies to actions under this Agreement, the proposed counterclaims may be brought in the form of recoupment so that they may defeat or diminish Goldberg's claims.
We note here that Goldberg does not contend that proposed Counterclaims V and VI, for indemnification and/or contribution, are barred by the statute of limitations. Therefore, NTS is granted leave to amend its Answer to add those counterclaims as well.

*160 CONCLUSION
For the foregoing reasons, third-party defendants NTS' motion to amend the Answer is granted.
SO ORDERED.
NOTES
[1]  Specifically, the proposed Amended Answer asserts ten affirmative defenses: (1) failure to state a claim upon which relief can be granted; (2) statute of limitations; (3) laches; (4) res judicata; (5) collateral estoppel; (6) lack of personal jurisdiction; (7) plaintiff's failure to allege that NTS made any materially false or misleading statements or omissions; (8) no fraud, intent to defraud, or recklessness; (9) plaintiff's allegation that she did not rely upon any material representations or omissions of NTS; and (10) plaintiff's lack of loss or damage by reason of NTS' conduct.

Furthermore, the proposed Amended Answer asserts six counterclaims against defendant/third-party plaintiff Goldberg: Counts I, II, III, and IV are for breach of contract based on the Dealer Management Agreements and Soliciting Dealer Agreements entered into by Goldberg and NTS; Count V is for contractual indemnification; and Count VI is for indemnification and/or contribution.
[2]  See Goss v. Revlon, Inc., 548 F.2d 405 (2d Cir.1976) (court did not abuse its discretion in denying leave to amend when only basis for extended and undue delay was ignorance of the law); William Iselin & Co., Inc. v. Boardwalk Regency Corp., 703 F.Supp. 1084 (S.D.N.Y.1989) (in denying leave to amend, court found undue delay, bad faith, and prejudice); Smith v. City of New York, 611 F.Supp. 1080 (S.D.N.Y.1985) (in denying leave to amend, court found that undue delay in seeking to amend pleading would prejudice opposing party and that amendment was futile because it failed to state a claim upon which relief could be granted); Wrenn v. New York City Health and Hospitals Corp., 104 F.R.D. 553 (S.D.N.Y.1985) (in denying leave to amend, court seemed to rely on the inadequately explained 1½ year delay, but also found that permitting the amendment would prejudice nonmoving party); R.J. Reynolds Tobacco Co. v. Southern Railway Co., 110 F.R.D. 95 (M.D.N.C. 1986) (in denying leave to amend, court stated that delay alone is not sufficient grounds and found that opposing party would be prejudiced by amendment or that amendment would be futile because frivolous); UNR Industries, Inc. v. Continental Ins. Co., 623 F.Supp. 1319 (N.D.Ill. 1985) (in denying leave to amend, court stated that delay alone is not sufficient grounds and found that opposing party would be prejudiced by amendment or that amendment would be futile because two of the proposed claims failed to state a claim upon which relief could be granted); Minor v. Northville Public Schools, 605 F.Supp. 1185 (E.D.Mich.1985) (in denying leave to amend, court found undue delay and substantial prejudice, and noted that undue delay alone is not sufficient reason to deny leave to amend); Johnsen v. Rogers, 551 F.Supp. 281 (C.D.Cal. 1982) (in denying leave to amend, court found eight-month delay without justifiable excuse, but also stated that in any event, proposed amendments failed to state claim upon which relief could be granted).
[3]  The third-party actions have been dormant since they were severed from the principal action prior to trial in October 1992. With the exception of a limited exchange of documents, not much discovery has taken place with respect to the third-party actions. Goldberg has not scheduled depositions of either NTS or the other third-party defendants, and we have not entertained any substantive motions nor set a trial date for these actions. In light of these facts, it will neither prejudice Goldberg nor inconvenience the Court to permit NTS to amend its answer to assert additional affirmative defenses and counterclaims.
[4]  NTS represents in its moving papers that its "proposed counterclaims for breach of the Agreements are asserted by way of recoupment seeking to defeat Goldberg's recovery on his third-party claims." Reply Brief in Supp. at 15.
[5]  CPLR § 203(c) provides:

A defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed, except that if the defense or counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand of the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed.


520 F.2d 172
90 L.R.R.M. (BNA) 2585, 171 U.S.App.D.C. 440,77 Lab.Cas.  P 11,089
BUILDING MATERIAL & CONSTRUCTION TEAMSTERS UNION LOCAL NO.216, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,CHAUFFEURS, WAREHOUSEMEN, & HELPERS OFAMERICA, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent,andBigge Drayage Company, Intervenor.BIGGE DRAYAGE COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 72-2008, 72-2098.
United States Court of Appeals,District of Columbia Circuit.
Argued Jan. 17, 1974.Decided Sept. 29, 1975.

Duane B. Beeson, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Angelo V. Arcadipane, Washington, D. C., was on the brief, for petitioner in No. 72-2008.
Robert M. Lieber, Washington, D. C., with whom Wesley J. Fastiff, San Francisco, Cal., was on the brief, for petitioner in No. 72-2098.  George J. Tichy, Spokane, Wash., also entered an appearance for petitioner in No. 72-2098 and intervenor in No. 72-2008.
Joseph E. Mayer, Atty., N. L. R. B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel and Elliott Moore, Asst. Gen. Counsel, N. L. R. B., were on the brief, for respondent.
Before McGOWAN and ROBB, Circuit Judges, and MATTHEWS,* United States Senior District Judge, United States District Court for the District of Columbia.
Opinion for the Court filed by Circuit Judge McGOWAN.
McGOWAN, Circuit Judge:

1
This case arises on cross-petitions for review of the resolution by the National Labor Relations Board of complaints filed by Bigge Drayage Company against Building Materials & Construction Teamsters Union, Local No. 216, alleging violations of Sections 8(e) and 8(b)(4)(ii)(D) of the National Labor Relations Act.  29 U.S.C. §§ 158(b)(4)(ii)(D), (e).  The Board found that the contract provisions challenged in the Section 8(e) allegation were valid on their face but invalid as applied, and that the Union's actions constituted a violation of 8(b)(4)(ii)(D).  For the reasons stated hereinafter, we affirm the Board's decision on both charges.1

2
* A. The Parties.

3
Bigge Drayage Company ("Bigge Drayage"), petitioner in No. 72-2098 and intervenor in No. 72-2008, is composed of several divisions, including Bigge Crane & Rigging Company ("Bigge Crane") and the Trucking Division of Bigge Drayage Company ("Bigge Trucking").2  The Trial Examiner and the Board found, and the Union does not contest, that Bigge Crane and Bigge Trucking are separate "persons" for the purpose of the Act.  (A. 578).

4
Bigge Crane is engaged in the business of renting cranes, installing and moving machinery, and performing heavy rigging and precast erection work (A. 142-43).  With the exception of two trucks that haul crane components and tools to and from job sites, Bigge Crane owns no over-the-road surface trucking units such as those operated by Bigge Trucking (A. 144-45, 153-54).  Bigge Crane is a member of the Associated General Contractors of America ("AGC"), and, through that group, is a party to a collective bargaining agreement (the "AGC Agreement") with a number of Construction Teamsters unions, including Local 216.

5
Bigge Trucking is engaged exclusively in over-the-road transportation of large and heavy items for and related to the construction industry.  It performs specialized heavy-load hauling services, such as the transportation of concrete girders weighing as much as 100 tons and measuring as much as 150 feet long (A. 119-20, 204-208).  This type of hauling requires special equipment and specialized training (A. 204-208).  Bigge Trucking is a member of an employers' group known as the California Trucking Association ("CTA"), and is, through it, signatory to a bargaining agreement (the "CTA Agreement") with a number of Teamster locals representing over-the-road long haul and local pick-up-and-delivery drivers.  Locals 70 of Oakland, 85 of San Francisco, and 315 of Richmond are all parties to the CTA agreement.

6
B. The Bargaining Contracts.

7
The AGC Agreement between Bigge Crane and Local 216 provided in part:

Section 30 SUBCONTRACTING

8
C. The Employer further agrees that when subcontracting work covered by this Agreement which is to be performed within the geographical area covered by this Agreement but which is not to be performed at the site of the construction, alteration, painting or repair of the building, road or other work, he will subcontract such work only to an Employer or person who agrees that the persons performing such work will work in accordance with the schedule of hours and will receive not less than the wages and economic benefits provided in this Agreement including holidays, vacations, premiums, overtime, health and welfare and pension contributions or benefits or their equivalent and any other programs or contributions or benefits or their equivalent and any other programs or contributions required by this Agreement and who further agrees to submit any grievance or disputes concerning his performance or compliance with such undertaking to the procedures set forth in Section 15 of this Agreement.

9
As to any Employer who has always subcontracted work involving certain equipment, this paragraph shall not become applicable with respect to work involving such equipment if its validity is challenged by charges filed by the National Labor Relations Board until determination by the National Labor Relations Board or if not by the National Labor Relations Board, by a Court of Competent jurisdiction that the provisions are not in violation of the National Labor Relations Act.

10
D. The Employer will give written notice to the Union of any subcontract involving the performance of work covered by this Agreement within five (5) days of entering into such subcontract and shall specify the name and address of the subcontractor.  Any Employer who gives such notice and requires the subcontractor to agree to comply with and observe the provisions of Subsection C hereof with respect to work performed other than at the job site shall not be liable for any delinquency by such subcontractor in the payment of any wages, fringe benefits or contributions provided herein except as provided hereinafter.

11
The Section 15 referred to in the foregoing paragraph (C) provided a grievance-arbitration procedure for resolving all disputes arising under the Agreement.  Excluded from such disputes, however, were jurisdictional conflicts governed by Section 20 of the AGC Agreement which provides as follows:

JURISDICTIONAL DISPUTE

12
There shall be no cessation of or interference in the work of an Employer by reason of a jurisdictional dispute between the Union and a Union affiliated with the AFL-CIO.  Such disputes shall be settled directly between the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and the Union involved.

13
The CTA Agreement between Bigge Trucking and Locals 70, 85, and 315 (through the Hauling Teamsters) had a similar provision on resolution of jurisdictional disputes:

ARTICLE 30 Jurisdictional Disputes

14
In the event that any dispute should arise between any Local Unions, parties to this Agreement, Supplements or Riders thereto or between any local Union, party to this Agreement, Supplements or Riders thereto and any other Union, relating to jurisdiction over employees or operations covered by such Agreements, the Employer and the Local Unions agree to accept and comply with the decision of settlement of the Unions or Union bodies which have the authority to determine such dispute, and such disputes shall not be submitted to arbitration under this Agreement, Supplement, or Riders thereto.

15
C. The Charges.

16
The charges arose out of events involving work performed on two separate construction jobs: the Bay Area Rapid Transit (BART) job and the "China Basin" highway construction job.1. The BART Job.

17
Hensel Phelps Construction Company, the general contractor on the BART project, subcontracted the manufacture, transportation, and erection of pre-stressed concrete girders to Castcon, Inc., a company engaged in the manufacture of such girders (J.A. 570; 68, 99, 115) Castcon in turn subcontracted the transportation and erection of the girders to Bigge Crane (J.A. 571; 116, 143, 146) which, as has been noted, was equipped to erect, but not to transport, the girders.  Bigge Crane therefore subcontracted the transportation of the girders to Bigge Trucking (J.A. 571; 99, 223).

18
Castcon transported the girders, which were approximately 70 feet in length and weighed as much as 100 tons (J.A. 570-71; 117), from its plant in Richmond, California, to Pier 42 in San Francisco.  Bigge Trucking transported the girders from Pier 42 to the BART job site.  Due to the size of the girders, special equipment was necessary, consisting of a pilot truck, two heavy duty tractors pulling a double gooseneck trailer, a tiller unit manned by a tiller man, and a rear escort truck (J.A. 119-20, 205-06, 215-19, 225-28).  A composite crew of members of Locals 70 and 85 were used on this job (J.A. 119, 222, 458).

19
2. The China Basin Job.

20
The China Basin project was similar in most respects, the major differences being that the general contractor was Caputo Construction Company and that some of the girders could be hauled directly from Castcon's plant on equipment that did not require a tiller man while other girders, which were up to 145 feet long, not only were barged but also required that Bigge Trucking design and build a special piece of equipment for their transportation (J.A. 118-20, 225-27).

21
D. The Events Leading up to the Charges.

22
The Hearing Examiner and the Board found, and the Union does not dispute, the facts leading up to and subsequent to the charges.  In December, 1969, Dallas Craig, president and business agent of Local 216 (the union representing the employees of Bigge Crane), learned that Bigge Trucking was transporting girders in San Francisco from Pier 42 to the BART project.  On December 14, he telephoned Glen Holtwick, Assistant Manager of Bigge Trucking, and told him that he believed that Bigge Trucking was in violation of the AGC Agreement, and that if the men of Locals 70 and 85 who were doing the work were not replaced with members of Local 216 by 8 o'clock the next morning, Craig would have to picket the pier.

23
Holtwick replied that he did not know that his company had a contract with Local 216, and explained that both Bigge Crane and Bigge Trucking were involved in this project.  He asked Craig to postpone picketing or the taking of any action until he returned to his office, and to notify Holtwick before any picketing was instituted.  Craig agreed to do so, and telephoned a representative of CTA who agreed to look into the matter.

24
On December 29, Craig filed grievances under the terms of the AGC Agreement against Bigge Crane and Hensel Phelps, alleging violations of the subcontracting clause.  He sought as relief "payment under AGC scale and fringe benefits for the top men on Teamsters Local 216 out-of-work list for each Teamster employed by Bigge Drayage and every hour each man worked according to Bigge Drayage payroll records."

25
On January 14, 1970, Bigge Drayage filed a charge that Local 216 was violating Section 8(e) of the NLRA.3  On February 16, the grievance meeting was held to determine the AGC grievance filed by Craig.  At that meeting, Craig reiterated that if Bigge Trucking attempted to bring the girders in from Pier 42 without compliance with the AGC Agreement, Local 216 would picket the pier.  Holtwick stated that he had no knowledge of any contract with Local 216 and was operating (on behalf of Bigge Trucking) within the framework of the CTA Agreement.  The Board of Adjustment hearing the dispute decided to defer resolution pending the NLRB's decision of the pending 8(e) charge.

26
On February 26, Bigge Drayage filed an 8(b)(4)(ii)(D) charge against Local 216.4  As reflected in the complaint before the Board, this charge covered threats against Bigge Trucking, Bigge Crane, Bigge Drayage, Hensel Phelps, Castcon, and Caputo.  (J.A. XI).

27
On March 17, Craig advised Donald Jeffers, a director of labor relations for AGC, that Bigge Company had a contract to haul girders to the China Basin project, and if they attempted to move girders from the pier to the project, Local 216 would strike them.  Jeffers stated that Bigge Crane was a division of Bigge Drayage Company and was separate from the drayage (Trucking) division.

28
On April 10, Craig called Jeffers and informed him that if anyone hauled the disputed girders with trucks not driven by members of Local 216, Craig was going to strike the China Basin job.  On the same morning, Craig also called George Williams, Manager of Castcon, and told him that Local 216 had a difference of opinion with Bigge in regard to the transportation of the structural girders.  He asked that Castcon use its influence or advise Bigge that it was a serious situation and should be resolved.  Williams asked Craig what would happen if the controversy were not resolved, and Craig replied that "in the event they were to unload the sections in San Francisco by barge, that we would probably have to strike them."5

II

29
Bigge Drayage challenges the Board's determination that Section 30(C) and (D) of the AGC Agreement is on its face a lawful union standards clause.  Bigge Drayage asserts that Section 30(C) and (D) entirely fails to qualify for the "work preservation" exception to the prohibitions of 8(e), see National Woodwork Manufacturers Ass'n v. N.L.R.B., 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967); Retail Clerks Union Local 1288 v. N.L.R.B., 129 U.S.App.D.C. 92, 390 F.2d 858 (1968); Meat and Highway Drivers, Local 710 v. N.L.R.B., 118 U.S.App.D.C. 287, 335 F.2d 709 (1964), because (1) it is not directed to preservation or recapture of unit work; and (2) because it seeks to impose non-economic conditions on subcontracting.

30
The clauses in question are susceptible of the reading that Bigge Drayage seeks to impose on them.  But they are equally, or more susceptible, however, to the interpretation that they cover only unit work and only economic benefits.

31
The sole factual indication that clause (C) might have been intended to cover non-unit work is the Union's actions in the instant case.  Those actions were the basis for the Board's holding that the clause was illegal as applied.  In these circumstances we believe that the Board was correct in following its policy that "where the clause is not clearly unlawful on its face, the Board will interpret it to require no more than what is allowed by law."  General Teamsters, Local 982, 181 NLRB 515, 517 (1970), enf'd sub nom., Joint Council of Teamsters No. 42 v. N.L.R.B., 146 U.S.App.D.C. 275, 450 F.2d 1322 (1971).

32
Bigge Drayage argues that the testimony of Dallas Craig shows that the Union intended the subcontracting clauses to impose on the subcontractor all of the non-economic aspects of the AGC Agreement.  Indeed, Dallas Craig did insist that in the instant dispute he expected such things as a prejob conference and payments to the union welfare fund (J.A. 435, 438, 506, 509).  It is clear from the record, however, that this expectation was based on the belief that he was dealing with an employer who was a party to the AGC Agreement.  Near the close of his testimony, Craig was asked:

33
All of the answers to the questions of the Trial Examiner you have been giving with respect to the Bigge situation, I take it, Mr. Craig, and correct me if I am wrong, were on the assumption Bigge Trucking was a party to the AGC contract?

34
To which Craig responded "Yes."

35
As the Trial Examiner attempted further to clear up the confusion, the following discussion took place:

36
Trial Examiner: (If the subcontractor was not a party to the AGC Agreement) Then he would have, that five and five business would apply to him?

37
A. No; no, it would have no application at all.  He doesn't have a contract.  He is not entitled to the agreement.

38
Q. I thought he came under the agreement with the general contractor?

39
A. If he is a subcontractor, a signed subcontractor with the prime contractor, then he is covered by this agreement to the extent the subcontract covers hours, wages, working conditions and fringe benefits.

40
(J.A. 512)

41
We believe this shows that Craig was confused about the situation he was dealing with, but not about the meaning of Section 30(C) and (D).  We note also that the Board's action in preserving the clause by noting that it applies only where legal is in accord with our express policy of not rewriting bargaining agreements.  See Local 98, Sheet Metal Wkrs. Int'l Ass'n v. N.L.R.B., 140 U.S.App.D.C. 83, 433 F.2d 1189, 1195-96 (1970).  We therefore affirm the Board's finding that Section 30(C) and (D) of the AGC Agreement is not on its face violative of Section 8(e) of the Act.

42
Local 216 challenges the Board's finding that Sections 30(C) and (D) are invalid under Section 8(e) insofar as it is claimed to cover the work of hauling heavy pre-stressed concrete girders.6 The Board based its finding on the fact that Bigge Crane has never done the claimed work and, indeed, it has not been and is not now equipped to handle such work.  The Board noted that the AGC Agreement provides job classifications for persons doing such work, but properly recognizes that the mere existence of the classifications does not make the work "of a type which the men in the bargaining unit have the skills and experience to do."  Meat and Highway Drivers, Local 710 v. N.L.R.B., 118 U.S.App.D.C. 287, 335 F.2d 709, 714 (1964).

43
Local 216's major argument supporting its assertion that this work is unit work for Bigge Crane rests on an agreement entered into by an employer called Owl Truck Company.7  Owl Truck Company is affiliated with Owl Constructors (in a construction-hauling arrangement very like Bigge Trucking and Bigge Crane).  Owl Truck is based in Southern California, and its employees are represented by Teamsters Local 692.  There is nothing in the record indicating what union represented Owl Constructors.  When Owl Trucking received a certain hauling subcontract from Owl Constructors, it entered into an agreement with Teamsters Local 315 of Richmond, a signatory to both the AGC and CTA Agreements, that it would employ a certain number of Local 315 members and pay them according to the AGC scale.  The agreement specifically provided that "No precedent is set by this agreement and it applies only to this job consisting of 158 girders."  (J.A. 528).

44
Even assuming that the "no precedent" clause had not been included, we fail to perceive how the willingness of Owl Truck Company to pay AGC wages to members of Local 315 makes either Owl Constructors or Bigge Crane more able to perform the hauling work which they are not equipped to do and which they have never done in the past, or constitutes any sort of admission as to the scope of unit work.  The Board's finding that the hauling of pre-stressed concrete girders is not unit work for Bigge Crane is clearly supported by substantial evidence, and nothing raised by Local 216 creates any doubt in our minds as to the correctness of that finding.

III

45
The 8(b)(4)(ii)(D) charge in this case has two elements.  First, the Board found that Local 216 threatened, coerced, or restrained employers (Bigge Trucking, Hensel Phelps, and Castcon, J.A. 581) with which it did not have a bargaining relationship and which did have a bargaining relationship with other unions, for the purpose of requiring those employers to employ the members of Local 216 or pay wages equal to those obtained by Local 216 from its employer.8  The Union does not assert that any of these companies is obligated to bargain with or to assign this work to Local 216, but rather states that it is merely enforcing its subcontracting agreement with Bigge Crane.

46
One might have expected the Board to proceed on this first element under 8(b) (4)(B), as that is the section primarily concerned with actions taken against neutral secondary employers.  As the Supreme Court recognized in a virtually identical case, however, the type of activity here engaged in constitutes a violation of both 8(b)(4)(B) and 8(b)(4)(ii)(D), N.L.R.B. v. Local 825, International Union of Operating Engineers, 400 U.S. 297, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971); see N.L.R.B. v. Local 282, Int'l Broth. of Teamsters, 344 F.2d 649 (2nd Cir. 1965) and the Board's use of Section 8(b)(4)(ii)(D) was therefore not improper.9

47
The second element consisted of the threats against Bigge Crane.  If that action was to enforce a subcontracting clause protecting unit work, such action would, without more, be clearly legal.  See Enterprise Ass'n, Local 638 v. N.L.R.B., No. 73-1764, --- U.S.App.D.C. ---, --- F.2d ---, decided July 1, 1975; Meat & Highway Drivers, Local 710 v. N.L.R.B., 118 U.S.App.D.C. 287, 335 F.2d 709, 713-14 (1964); Retail Clerks Local 770 v. N.L.R.B., 111 U.S.App.D.C. 246, 296 F.2d 368, 372-73 (1961).  Since as we have heretofore noted, the work clearly was not unit work, the threats were in fact to force Bigge Crane to bring pressure on Bigge Trucking to employ members of Local 216 or to pay AGC scale wages.  As in the case of the other employers, this situation would seem to be most appropriately dealt with under Section 8(b)(4)(B).  See Orange Belt District Council of Painters No. 48 v. N.L.R.B., 117 U.S.App.D.C. 233, 328 F.2d 534 (1964); Building and Construction Trades Council v. N.L.R.B., 117 U.S.App.D.C. 239, 328 F.2d 540 (1964).  The holding of N.L.R.B. v. Local 825, International Union of Operating Engineers would seem, however, also to cover the actions taken against Bigge Crane.  Further, insofar as the Union does not challenge the applicability of Section 8(b)(4)(ii)(D) to any of its actions, we understand its applicability to be conceded.

48
Having decided to proceed entirely under 8(b)(4)(ii)(D), the Board is bound by the restrictions that the Act places on that Section.  Section 10(k) provides:

49
Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of Section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute.  Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.

50
In the instant case, the Board found, and no party disputes, that Section 20 of the AGC Agreement dovetails with Article 30 of the CTA Agreement to provide a method of resolving the dispute.  On September 17 and 18, 1970, Locals 216, 70, and 85 executed a Memorandum of Understanding that provided in pertinent part:

51
Construction Teamsters Local 216 does not claim the work of hauling concrete pre-stressed girders over public highways for delivery to construction sites where such work is performed by Bigge Drayage Company and is assigned to employees of, or represented by, Teamsters Local 70 or Local 85.

52
Construction Teamsters Local 216 agrees that employees of Bigge Drayage Company who are members of, or represented by, Teamsters Local 70 or 85 are assigned, and are entitled to perform the work described above for Bigge Drayage Company.

53
The Union contends that the existence of this agreement requires the Board, under 10(k), to dismiss the 8(b)(4)(D) charge.  The Board responds that the agreement did not provide an actual adjustment of the dispute.  We agree with the Board.  The agreement appears to provide that where the work in question is subcontracted to Bigge Trucking,10 Locals 70 and 85 shall represent the workers.  Nevertheless, Dallas Craig continued to maintain that, even though members of Locals 70 and 85 would perform the work, they should be paid at the Local 216 scale (J.A. 473-85, 479-80, 485).  This clearly is a refusal to comply with the voluntary agreement.  As the Supreme Court said in N.L.R.B. v. Plasterers' Union, 404 U.S. 116, 135, 92 S.Ct. 360, 372, 30 L.Ed.2d 312 (1971):

54
(T)he Board does not apply the Safeway rule (on dismissal, announced in Highway Truckdrivers, Local 107, 134 N.L.R.B. 1320 (1961)) to unimplemented agreements to arbitrate between the unions alone, and it does not consider it applicable where employees continue on the job after their international union loses an arbitration proceeding and renounces the work.  These de facto disputes are real, and they deserve Board resolution if the purposes of § 10(k) are to be achieved.  (footnote omitted) (emphasis added).

55
We therefore hold that the Board was correct in refusing to dismiss the charges and proceeding to a consideration of whether a violation had taken place.  Local 216 raises no other objections to the finding of an 8(b)(4)(ii) (D) violation.11

56
We therefore affirm the Board's ruling on the 8(e) and the 8(b)(4)(ii)(D) charges, and the order entered to remedy those violations.

57
It is so ordered.

*
 Sitting by designation pursuant to Title 28, U. S. Code Section 294(c)

1
 After oral argument before a division of this court, disposition was deferred pending decision by the Court en banc of No. 73-1764, Enterprise Association v. NLRB, --- U.S.App.D.C. ---, --- F.2d --- (decided July 1, 1975)

2
 The Trucking Division was often referred to in the trade as Bigge Drayage (A. 286).  Any confusion this may have caused in the minds of the Union's representatives, however, was cleared up by repeated explanations.  See --- U.S.App.D.C. ---, pp. --- - ---, 520 F.2d 172, pp. 176-177, infra

3
 Section 8(e) provides in relevant part:
It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void . . . .

4
 Section 8(b)(4) provides in relevant part:
It shall be an unfair labor practice for a labor organization or its agents . . .  (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where . . .  an object thereof is . . .  (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work . . . .

5
 Craig testified that the "them" in his statement referred to Bigge rather than to Castcon (which owned or rented the crane that did the actual unloading).  The Hearing Examiner and Board found that "Craig did not so delineate the area and object of his threatened picketing and that the normal import of the words used was that the operation of the transfer of the girders from the barge to Bigge's trucks would be picketed."  We agree

6
 The Board's findings and reasoning were as follows:
Under AGC contracts, (Local 216) has represented drivers in the construction industry for many years.  The work of these drivers consists generally of hauling dirt, rock, and debris, asphalt, and other materials and supplies.  None of the employer-parties to the contract ever hauled pre-stressed concrete girders.  Indeed, none of them have the necessary equipment for such work.  Though the contract's coverage was extended in 1968 to embrace classifications which are described to perform this work, to which the subcontracting provisions of the contract noted above was to become applicable, it does not appear that the classifications were included in anticipation of the AGC members undertaking the work.  As already indicated, they never did.
The disputed hauling work continued to be performed, as it was theretofore, by employers who were members of the California Trucking Association and who employed members of Teamsters Locals 70 and 85.  However, subsequent to the addition of the above-mentioned hauling classifications of the AGC contract, (Local 216) sought to acquire such work for its members, claiming entitlement to it under the AGC contract.  It also sought to impose the obligations of the subcontracting provisions upon the subcontractor who performed this work.
It thus appears that (Local 216) has entered into a contract which, insofar as the work of hauling pre-stressed concrete girders is concerned, limits subcontracting to those employers who would observe section 30(C) and (D).  Since employers who are parties to the AGC contract were not engaged in this type of hauling, nor are shown even to have anticipated its performance, the object of this restriction was not the preservation or protection of unit work.  If it served no primary purpose, it is only reasonable to conclude that its aim was a secondary one, as this record amply demonstrates.  To the extent noted, therefore, a majority of the Board (Chairman Miller and Members Kennedy and Penello) finds an 8(e) violation.  (J.A. 559-61) (footnotes omitted).

7
 In citing the Owl experience for support, the Union argues that the definition of unit work should be derived from the multi-employer bargaining unit consisting of the California chapters of the Associated General Contractors.  Because we find that even using such an approach, the Union's view of unit work is unsupportable, we need not rule on the propriety of the approach itself

8
 The Union contends that the Board should have deferred to the grievance procedures of the AGC Agreement for resolution of the question of "whether Crane & Rigging and Bigge Trucking constituted a single employer."  (Br. of Local 216, at 24).  This argument was not, however, raised before the Board and, as provided by Section 10(e) of the Act, may be raised before this court only if the failure below was excused because of "extraordinary circumstances."  The only extraordinary circumstance urged by the Union is the advent of the Board's decision in Collyer Insulated Wire, 192 NLRB No. 150, 77 LRRM 1931 (1971), which announced a policy of deference to grievance arbitration for certain questions.  Without deciding whether Collyer Wire would be applicable to this case (we have some doubts thereon because no grievance procedure existed between Local 216 and Bigge Trucking), we note that the Board's decision in that case came a year prior to its decision in the instant case.  We therefore find that the advent of Collyer Wire does not constitute an "extraordinary circumstance" sufficient to justify raising the question here

9
 This choice was perhaps motivated by a desire to cover the possibility that Bigge Crane and Bigge Trucking would be found to be the same employer

10
 The use of Bigge Drayage is somewhat confusing, but the agreement clearly applies to the particular dispute at hand

11
 No party raises the question whether the Board's order goes beyond the terms of the (ineffective) agreement, and whether such an extension is proper in the absence of a 10(k) hearing.  Compare 29 C.F.R. § 102.93; Operating Engineers Local No. 3, 192 NLRB No. 28, 77 LRRM 1864 (1971); Electrical Workers Local 26, 147 NLRB 1498, 1502 (1964); and Wood, Wire and Metal Lathers Int'l, 119 NLRB 1345 (1958) with N.L.R.B. v. Local 825, Int'l Union of Operating Engineers, 410 F.2d 5, 9 (3rd Cir. 1969), reversed in part in other respects, 400 U.S. 297, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971).  This case is somewhat special, however, in that all of the elements of the order are independently justified by the findings relating to the 8(e) violation, in particular the finding that the hauling was not unit work, which we here uphold


46 F.3d 1133
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Charles ELLIS, Petitioner-Appellant,v.George WELBORN, Warden, and Roland W. Burris, AttorneyGeneral of Illinois, Respondents-Appellees.
No. 93-2398.
United States Court of Appeals, Seventh Circuit.
Submitted Dec. 21, 1994.*Decided Dec. 22, 1994.

Before POSNER, Chief Judge, and CUMMINGS and MANION, Circuit Judges.

ORDER

1
Charles Ellis was convicted by an Illinois court of attempted murder, armed robbery, armed violence, and aggravated battery and sentenced to 45 years of imprisonment.  In 1982, the Illinois Appellate Court affirmed his conviction.  In 1983, Ellis filed his first motion for post-conviction relief under 28 U.S.C. Sec. 2254 in federal court, which the district court dismissed on the merits.  The 1983 petition alleged a number of errors including the improper exclusion of black jurors from his petit jury and ineffectiveness of counsel.  In 1992, after exhausting state post-conviction remedies, Ellis filed his second 2254 petition.  In this petition, Ellis once again argued that the racial make-up of his jury was improper.  He also included an allegation that the state's attorney's office was involved in a conspiracy to keep blacks off of his jury and that his counsel on direct appeal provided ineffective assistance by not raising this claim.  The district court dismissed Ellis' petition as an abuse of the writ.

I. Jurisdiction

2
The government argues that we have no jurisdiction to hear Ellis' appeal because he filed a premature notice of appeal.  The district court dismissed Ellis' 2254 petition on November 12, 1992.  Ellis then filed a motion for reconsideration, which the district court denied on April 23, 1993.  Ellis, however, did not receive notice of this decision.  On May 11, Ellis submitted a motion requesting the district court to enter a "final and appealable order" on his motion for reconsideration.  Simultaneously, Ellis submitted a notice of appeal.  On May 14, the district court granted Ellis' request and re-entered the order denying the motion for reconsideration.

3
The government contends that Ellis' May 11 notice of appeal was premature, as the district court did not enter a final and appealable order until May 14.  Under 28 U.S.C. Sec. 1291, litigants may appeal "final decisions" of the district courts.  A final decision is one that "en[ds] the litigation on the merits."  Firstier Mortgage Co. v. Investors Mortgage Co., 498 U.S. 269, 273, 111 S.Ct. 648, 651 (1991), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34 (1945).  The April 23 order denying Ellis' motion for reconsideration signaled the end of the litigation;  the May 14 order had no further significance.1  Thus, Ellis' May 11 notice of appeal was timely.

4
II. Successive Petition and Abuse of the Writ

5
The district court may dismiss a second or successive 2254 petition if, following the dismissal of the initial petition on the merits, the new petition "fails to allege new or different grounds for relief."   Rules Governing Sec. 2254 Cases, Rule 9(b).  Ellis' claims that the prosecution improperly used peremptory challenges to keep blacks off of the petit jury and that his counsel provided ineffective assistance by failing to object to this activity were raised in his first petition and dismissed as unmeritorious.2  Thus, the district court correctly dismissed this claim as a successive petition.

6
In addition, we agree with the district court that Ellis' claim that the state's attorney's office conspired to keep blacks off the jury is a successive claim, as it differs little in substance from his claim that the prosecutor improperly used his peremptory challenges.  Even if the conspiracy claim constitutes new grounds for relief, however, the district court may still dismiss the petition under Rule 9(b) as an abuse of the writ.  The government satisfies its burden of pleading abuse of the writ by "not[ing] petitioner's prior writ history, identif[ying] the claims that appear for the first time, and alleg[ing] that petitioner has abused the writ."  McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470 (1991).  The government has met this burden here by introducing Ellis' 1983 petition.  To overcome the abuse claim, Ellis must "show cause for failing to raise" his claims earlier and "prejudice therefrom."   Id.  As cause for failing to raise the conspiracy claim, Ellis asserts that he did not have a copy of the trial transcript when he filed his first petition.  He does not, however, allege that his failure to obtain a transcript arose from anything other than his own neglect.  Thus, as Ellis shows no cause, this claim qualifies as an abuse of the writ.3

7
Finally, Ellis' second petition may not constitute abuse of the writ if he can demonstrate a "fundamental miscarriage of justice."  McCleskey, 499 U.S. at 495, 111 S.Ct. at 1470.  A petitioner meets this standard if he makes a "colorable showing of factual innocence."   Id.; Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627 (1986) (plurality opinion).  Although Ellis makes passing references to his innocence, he offers no facts or "probative evidence" that would constitute a "colorable showing" of innocence.  See Kuhlmann, 477 U.S. at 454, 106 S.Ct. 2627.  Thus, Ellis has not demonstrated that the "ends of justice" require consideration of his petition.  See id.

III. Conclusion

8
In conclusion, the district court properly dismissed Ellis' 2254 petition as successive and an abuse of the writ.  Thus, the decision of the district court is

9
AFFIRMED.

*
 After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case.  The notice provided that any party might file a "Statement as to Need of Oral Argument."   See Fed.R.App.P. 34(a);  Cir.R. 34(f).  No such statement having been filed, the appeal is submitted on the briefs and the record

1
 Rather than re-entering the order, perhaps the district court should have mailed Ellis a copy of the April 23 order

2
 Ellis argues that we should re-evaluate the decision in his first petition in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986).  However, we will not apply Batson retroactively to cases that were final (i.e., all direct appeals are exhausted or the time for filing them is expired) before the decision in Batson was announced.  Allen v. Hardy, 478 U.S. 255, 257-58, 106 S.Ct. 2878, 2879-80 (1986);  Richardson v. Gramley, 998 F.2d 463, 464 (7th Cir.1993), cert. denied, 114 S.Ct. 1072 (1994).  Ellis' appeal was final in 1982;  thus, Batson does not apply to his case

3
 Moreover, given that Batson does not apply retroactively, Ellis would have difficulty demonstrating prejudice even if he had cause for not raising the conspiracy claim earlier


       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 CUTSFORTH, INC.,
                     Appellant

                           v.

               MOTIVEPOWER, INC.,
                      Appellee
               ______________________

                      2015-1316
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2013-
00274.
                 ______________________

              Decided: January 22, 2016
               ______________________

    MATHIAS WETZSTEIN SAMUEL, Fish & Richardson P.C.,
Minneapolis, MN, argued for appellant. Also represented
by ROBERT P. COURTNEY, CONRAD GOSEN.

    JASON ALEXANDER ENGEL, K&L Gates LLP, Chicago,
IL, argued for appellee. Also represented by BENJAMIN
EDWARD WEED, ALAN L. BARRY, ROBERT J. BARZ.
                ______________________
2                     CUTSFORTH, INC.   v. MOTIVEPOWER, INC.

    Before PROST, Chief Judge, CLEVENGER, and MOORE,
                      Circuit Judges.
CLEVENGER, Circuit Judge.
    This appeal arises from the inter partes review (“IPR”)
of U.S. Patent No. 7,990,018 (“the ’018 patent”) owned by
Cutsforth, Inc. (“Cutsforth”). The United States Patent
and Trademark Office, Patent Trial and Appeal Board
(“the Board”) held that claims 1–24 of the ’018 patent are
unpatentable as obvious under 35 U.S.C. § 103. Motive-
Power, Inc. v. Cutsforth, Inc., IPR2013-00274, Paper No.
31 (PTAB Oct. 30, 2014). Cutsforth appeals the Board’s
decision. Because the Board did not adequately describe
its reasoning for finding the claims obvious, we vacate
and remand for further proceedings.
                             I
    The ’018 patent is directed to a removable brush hold-
er that can be used to pass electrical current in electrical
devices or slip ring assemblies, such as electric generators
and motors. The patent generally describes a brush holder
assembly that allows a current to pass from a stationary
device (such as a brush) to a moving contact, or vice versa.
The brush is made of a conductive material and is held in
place by a brush holder to remain in continuous contact
with a moving conductive surface to generate an electrical
current. The invention makes it easier to remove and
replace brushes during operation as the brushes wear
down, which allows for safer and more cost effective
maintenance.
    Independent claim 1 is representative of the claimed
invention and reads as follows:
    1. A brush holder assembly for holding a brush
       having a conductive element, the brush holder
       assembly comprising:
CUTSFORTH, INC.   v. MOTIVEPOWER, INC.                    3

       an elongated mounting block having a ma-
         jor axis, an upper end and a lower end,
         and a first and second outer side sur-
         faces substantially parallel to said ma-
         jor axis, and including a stationary
         brush release proximate said lower end;
         and
       a brush holder component adapted for re-
         movably mounting to the mounting
         block, the brush holder component
         comprising a brush box and a channel
         for receiving a portion of the mounting
         block therein, the channel including
         first and second inner side surfaces;
       the brush holder component further com-
         prising a brush catch having a first po-
         sition and a second position, the brush
         catch preventing sliding movement of a
         brush within the brush box in the first
         position, and the brush catch permit-
         ting sliding movement of a brush within
         the brush box in the second position;
       wherein the stationary brush release is
         positioned on the mounting block so
         that when the brush holder component
         is mounted on the mounting block, the
         stationary brush release engages with
         the brush catch, moving the brush catch
         into the second position.
U.S. Patent No. 7,990,018 col. 17 l. 64–col. 18 l. 20 (filed
Sept. 21, 2010).
    On May 8, 2013, MotivePower, Inc. (“MotivePower”)
petitioned for IPR, challenging all claims of the ’018
4                     CUTSFORTH, INC.   v. MOTIVEPOWER, INC.

patent. 1 The Board instituted review of all claims (1–24)
based on the ground that all asserted claims would have
been obvious in light of U.S. Patent No. 3,432,708 (“Bis-
sett”), U.S. Patent No. 5,043,619 (“Kartman”), and U.S.
Patent No. 3,864,803 (“Ohmstedt”). The Board issued its
Final Written Decision on October 30, 2014. The Board
first construed “mounting block” to mean “a base for
affixing to another structure,” and “removably mounting”
to mean “mounting in a manner that is not permanent.”
In light of these constructions, the Board determined that
all claims were obvious over Bissett, Kartman, and
Ohmstedt, which also disclose various brush holder
assemblies.
    Cutsforth timely appealed the Board’s decision to this
Court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(4)(A). In addition to its challenge to the Board’s
obviousness conclusions, Cutsforth also challenges the
Board’s interpretation of the “mounting block” limitation.
As noted, the Board concluded that “mounting block”
means “a base for affixing to another structure,” and need
not be fixed to another structure, as Cutsforth argues. We
see no error in the Board’s interpretation of “mounting
block,” and thus reject Cutsforth’s argument, as we also
did in Appeal No. 2015-1315, Cutsforth, Inc. v. Motive-
Power, Inc., No. 2015-1315, 2015 WL 9207283 (Fed. Cir.
Dec. 17, 2015).

    1   MotivePower petitioned for IPR of five related pa-
tents, including the ’018 patent. The Board instituted all
five IPRs and every challenged claim was either cancelled
by Cutsforth or found to be unpatentable by the Board.
Cutsforth appealed three of the five decisions, including
this one and Appeal No. 2015-1314 and Appeal No. 2015-
1315, which were consolidated for oral argument before
this Court.
CUTSFORTH, INC.   v. MOTIVEPOWER, INC.                    5

                              II
    Under 35 U.S.C. § 103, an invention is unpatentable if
the differences between the invention and the prior art
are such that a person of ordinary skill in the art would
have found the claimed invention obvious. The Board’s
ultimate determination of obviousness is a legal question,
which we review de novo. In re Kotzab, 217 F.3d 1365,
1369 (Fed. Cir. 2000). However, we review the underlying
factual findings for substantial evidence. Id. Substantial
evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” In re
Gartside, 203 F.3d 1305, 1312 (Fed. Cir. 2000) (citation
omitted).
    The issue in this case is whether the Board correctly
determined that the ’018 patent is obvious over Bissett,
Ohmstedt, and Kartman. While we review this question
de novo, we first consider the findings made by the Board
to reach its conclusion.
    First, regarding independent claim 1, the Board’s
analysis begins by summarizing MotivePower’s argu-
ments for why claim 1 is obvious over Bissett, Ohmstedt,
and Kartman. The Board briefly describes MotivePower’s
belief that Bissett discloses several limitations of claim 1
and that it would have been obvious to adapt the brush
holder of Bissett and combine it with key elements of
Ohmstedt to produce the remaining limitations from
claim 1. The Board also includes MotivePower’s argument
that it would be obvious to adapt the mounting block of
Bissett (i.e., dovetails 18) with the mounting block of
Kartman (i.e., detachable connecting means 42). This
adaptation is referred to as the Bissett/Kartman mount-
ing block. However, the Board stated no independent
reasons for why claim 1 is obvious nor did it formally
adopt MotivePower’s arguments as its own reasoning.
    Second, the Board found that dependent claim 5 is ob-
vious in light of the prior art. Claim 5 reads “The brush
6                     CUTSFORTH, INC.   v. MOTIVEPOWER, INC.

holder assembly of claim 1, wherein the mounting block
includes a spring that applies spring force against at least
a portion of the brush holder component when the brush
holder component is mounted to the mounting block.” The
Board recites MotivePower’s argument that the adapted
Bissett/Kartman mounting block does include a spring
(i.e., spring lead receptacle 32 of Bissett). The Board then
determined “that positioning spring lead receptacle 32 on
the Bissett/Kartman mounting block is a matter of design
choice because its placement there would not alter the
operation of the modified mounting block.”
    Third, the Board found that dependent claim 8 is ob-
vious. Claim 8 reads “The brush holder assembly of claim
1, wherein the mounting block includes a portion that is
moveable relative to the remainder of the mounting block
and operable to engage with the removable brush holder
component to secure the removable brush holder compo-
nent to the mounting block.” The Board again recited
MotivePower’s argument that one of ordinary skill in the
art would know to move crosspiece 40 of Bissett to the
mounting block, thereby incorporating a moveable portion
on the mounting block. However, the Board gave no other
reason for why this modification is obvious.
    As we held in In re Sang-Su Lee, 277 F.3d 1338 (Fed.
Cir. 2002), the Board must articulate its reasoning for
making its decision. The Board must develop and explain
the basis for its findings. This enables the reviewing court
to conduct meaningful review of the proceedings. Broad,
conclusory statements are not enough to satisfy the
Board’s obligation to provide reasoned explanation for its
decision. In re Sang-Su Lee, 277 F.3d at 1343–45. In a
case of obviousness, the Board must explain why a person
of ordinary skill in the art would modify the prior art
references to create the claimed invention. See In re
Kotzab, 217 F.3d at 1371; In re Rouffet, 149 F.3d 1350,
1359 (Fed. Cir. 1998).
CUTSFORTH, INC.   v. MOTIVEPOWER, INC.                   7

    In this case, the Board made broad, conclusory state-
ments in its analysis to determine that the claims of the
’018 patent are obvious. The majority of the Board’s Final
Written Decision is spent summarizing the parties’ argu-
ments and offers only conclusory analysis of its own.
While the decision does specify when it is rejecting a
party’s argument, the Board does not explain why it
accepts the remaining arguments as its own analysis.
This leaves little explanation for why the Board found the
claimed invention obvious.
    The first basis for the Board’s obviousness conclusion
is that it would have been obvious to modify elements
from the Bissett and Kartman references to get the Bis-
sett/Kartman mounting block. The Board’s decision
appears to assume this combination is obvious. It offers
no explanation for why a person of ordinary skill in the
art would adjust Bissett and Kartman to create the
claimed mounting block of the ’018 patent. The Board
only states that MotivePower argued it was obvious to do
so. Merely reciting MotivePower’s argument does not
satisfy the Board’s responsibility to explain its own rea-
soning. The decision must explain why a person of ordi-
nary skill in the art would find it obvious. The Board
gives no such explanation.
    For claim 5, which requires that the mounting block
include a spring, the Board explains that the placement of
the spring on the mounting block is simply a design
choice. In Bissett, lead receptacle 32 is located on a sta-
tionary brush frame, not the mounting block. Yet, the
Board determined that lead receptacle 32 could be posi-
tioned on the modified Bissett/Kartman mounting block
and the elements would function as disclosed in the ’018
patent. Thus, the Board found that the location of the
spring is a design choice and is obvious. This statement
alone is not enough to explain why the Board found claim
5 obvious. Merely stating that a particular placement of
an element is a design choice does not make it obvious.
8                    CUTSFORTH, INC.   v. MOTIVEPOWER, INC.

The Board must offer a reason for why a person of ordi-
nary skill in the art would have made the specific design
choice to locate the spring on the mounting block. Here, it
does not.
    For claim 8, the Board’s explanation is nominal.
Claim 8 requires that the mounting block include a mova-
ble portion. The Board recited MotivePower’s argument
that a person of ordinary skill in the art could modify and
relocate an element of Bissett to the mounting block and
this claim would be satisfied. There is no further explana-
tion. Again, conclusory statements do not give adequate
justification for why a claim is obvious. The Board does
not give any reasons for how a person of ordinary skill
would find this modification obvious.
                            III
    For the foregoing reasons, we hold that the Board’s
Final Written Decision does not provide enough explana-
tion to support its finding of obviousness. Therefore, this
Court cannot properly review whether there is substantial
evidence to support the underlying factual findings of the
Board’s determination. When the Board determines that
modifications and combinations of the prior art render a
claimed invention obvious, the Board must fully explain
why a person of ordinary skill in the art would find such
changes obvious. We vacate the Board’s decision and
remand “for proceedings appropriate to the administra-
tive process.” In re Sang-Su Lee, 277 F.3d at 1346.
             VACATED AND REMANDED


People v Batista (2019 NY Slip Op 00560)

People v Batista

2019 NY Slip Op 00560

Decided on January 29, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 29, 2019

Friedman, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.

8227 353/16

[*1]The People of the State of New York,	 Respondent,
vAnthony Batista, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.

An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Richard M. Weinberg, J. at plea; Kevin McGrath, J. at sentencing), rendered August 11, 2016,
Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,
It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 29, 2019
DEPUTY CLERK
Counsel for appellant is referred to
§ 606.5, Rules of the Appellate
Division, First Department.


608 F.2d 1137
CRI, INC., Appellee,v.Frederick O. WATSON, Appellant,Northland Investment Company, Appellee.CRI, INC., Appellee,v.Frederick O. WATSON, Appellant,v.NORTHLAND INVESTMENT COMPANY, Appellee.
Nos. 78-1751, 79-1129.
United States Court of Appeals,Eighth Circuit.
Submitted April 19, 1979.Decided Nov. 5, 1979.

John M. Mason, Dorsey, Windhorst, Hannaford, Whitney & Halladay, Minneapolis, Minn., for appellant.
Charles Quaintance, Jr., Maslon, Kaplan, Edelman, Borman, Brand & McNulty, Minneapolis, Minn., for appellee CRI.
Lawrence J. Hayes, Maun, Green, Hayes, Simon, Aretz & Murray, St. Paul, Minn., for appellees CRI and Northland Investment Company.
Before LAY, HEANEY and McMILLIAN, Circuit Judges.
LAY, Circuit Judge.

1
Frederick O. Watson appeals judgments in favor of Capital Realty Investments, Inc., (CRI) and Northland Investment Company (Northland) for compensatory damages and prejudgment interest, which arose out of Watson's breach of an exclusive agency agreement.

2
The agreement concerned sale of an equity interest in a limited partnership that owned a major regional shopping center, Valley West, which was under construction during the time in question.  Watson entered negotiations with Northland, a mortgage brokerage firm, to secure additional financing.  Northland suggested equity financing, sale of an ownership interest and disproportionate tax losses, in addition to debt financing.  It drew up an investment proposal and introduced Watson to CRI, a firm in the business of finding real estate investments for its investor-customers.  While negotiating with CRI, Watson was simultaneously negotiating through Heitman Mortgage Company sale of a 50% Ownership interest in Valley West for $3,500,000: an equity investment of $100,000 and a second mortgage loan of $3,400,000.  On September 18, 1975, Watson signed a contract prepared by Northland that gave CRI the exclusive right between September 18 and November 1, 1975, to produce and show evidence of a corporate buyer who would purchase an 11% Interest and 80% Of the project's tax losses through 1977 and 11% Of certain other assets for a price of $525,000.  The agreement was subject to the condition that a "bankable written commitment obtained by Heitman Mortgage for a $3,400,000, 93/4%, 50 year term, self-amortizing second mortgage and a $100,000 equity investment for purchase of 50% Of the partnership's interest in the subject property" be delivered and accepted in writing by Watson.  Watson agreed in the contract to pay Northland a fee of $40,000 at the initial closing.

3
The lower court found Watson notified Northland he was not going to go through with the contract on October 6, 1975, and did so for the sole reason that he hoped to obtain greater profit elsewhere.1  Because Watson's repudiation made CRI's performance impossible, even though CRI was ready and willing to perform, the court awarded CRI damages in the amount of profit it would have realized had the sale to CRI's prospective purchasers gone through, $125,000.  It found Northland lost the benefit of its bargain to receive the $40,000 fee specified in the contract and awarded it that amount in damages.I. Jurisdiction.

4
Watson argues Northland's intervention in the lawsuit as of right destroyed diversity of citizenship jurisdiction, because Northland and Watson are both Minnesota citizens.  Northland clearly had sufficient interest in the suit and risked sufficient impairment of that interest to intervene as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure, and Watson does not argue otherwise.2  Its position, therefore, was comparable to that of a party to be joined if feasible under Rule 19(a)(2)(i).  Notes of Advisory Committee on Rules, 1966 amendment, Rule 24, 28 U.S.C.A.; 7A C. Wright and A. Miller, Federal Practice and Procedure § 1917 at 604 and n. 73 (1972); See Smuck v. Hobson, 132 U.S.App.D.C. 372, 375, 408 F.2d 175, 178 (D.C.Cir.1969).  Since Northland was a party whose presence was desirable but would deprive the court of jurisdiction, the question was whether "in equity and good conscience" the action should have proceeded among the parties before the court or be dismissed because Northland was indispensable.  Fed.R.Civ.P. 19(b).

5
CRI's suit for damages was based upon its exclusive right to find a buyer within the time period, have Watson consummate the sale, and make a profit from the difference between sale price and Watson's price.  Northland's duties were distinct from CRI's.  Northland's former assistant vice president, Luxem, testified that after he met several times with Watson and CRI representatives and prepared the September 18th agreement, his performance was complete.3  Northland had substantially and practically performed prior to Watson's repudiation and had earned the $40,000 fee, which was intended to be entirely its own.  Thus, its right to the fee, although contingent on CRI's performance, was sufficiently distinct to justify enforcement in a separate action from CRI's suit for its lost profits.  Cf. Fremon v. W. A. Sheaffer Pen Co., 209 F.2d 627, 633-34 (8th Cir. 1954); Bry-Man's, Inc. v. Stute, 312 F.2d 585 (5th Cir. 1968) (one fee split).  Because Northland's rights and obligations could not be determined if it were not a party to the action, or privy to a party, the only prejudice it would risk would be that of adverse precedent, which is not the type of prejudice contemplated by Rule 19(b).  See Helzberg's v. Valley West Des Moines Shopping Center, Inc., 564 F.2d 816, 819 (8th Cir. 1977).  A separate and adequate judgment could be awarded CRI in Northland's absence.  We conclude Northland was not indispensable to the action; its presence by intervention therefore did not divest the court of jurisdiction.

6
II. District Court Findings Clearly Erroneous Rule.

7
Watson argues alternatively that CRI is precluded from recovering damages because its fiduciary role as agent precluded "secret profits."  The premise, that CRI's profit was secret or from a collateral sale, is fallacious; the court found Watson "expected CRI to sell the interest for substantially in excess of $525,000, the excess constituting CRI's fee."  It stated that although Watson testified CRI did not inform him of the amount of its expected profit, he did not ask, did not want to pay CRI a fee himself, was happy to leave the fee arrangement up to CRI and the prospective purchaser, and clearly did not believe CRI was operating without expectation of profit.  These findings rested upon credibility determinations and are not clearly erroneous.

8
Watson also argues his performance was excused because two conditions were not met: (1) a bankable commitment from Heitman Mortgage Company was not delivered or accepted; and (2) CRI did not find a corporate buyer.

9
The court concluded Watson's written acceptance of a proposal embodying the essential terms of the Heitman proposal as described in the September 18th agreement was a condition precedent to Watson's performance, but also concluded the condition was met or excused by Watson's unjustified repudiation.  It was met by Watson's acceptance of a Heitman proposal identical to that described in the September 18th agreement except for an immaterial alteration in price.4  It was excused to the extent it was not met, because Watson repudiated the September 18th agreement solely to receive greater profit elsewhere, a repudiation found unjustified, arbitrary and in bad faith.

10
Watson argues rules about conditions precedent should not apply, because the contract gave him a right to reject the Heitman deal and therefore the entire contract, by the literal language: "and written acceptance by you."5

11
The court's finding that Watson did not reject the Heitman proposal, because the proposal he renegotiated was substantially the same as the one contemplated by the September 18th agreement, is supported by the record.  Luxem testified that because the CRI and Heitman sales were complementary parts of a financing package, the condition was drafted to provide the CRI deal was off if Heitman could not secure its client's consent to the second mortgage equity interest purchase deal, and that he understood Heitman's fee and the other figures were not final.  The Heitman sale price, $3,900,000, was not much greater than the price in the September 18th contract, $3,500,000, when one considers Heitman's $300,000 fee was mentioned apart from the price in an earlier proposal but was not mentioned in the second proposal.  The finding that Watson repudiated solely to obtain greater profit in the tax loss sale is supported both by Watson's own testimony that he sought more money and his later, more profitable sale to Edidin.

12
In light of these findings, Watson is reduced to arguing the contract gave him a right to reject on whim, a right unlimited by requirements of good faith or fair dealing.  Apart from construction of this specific contract provision, under common law principles of agency a principal is generally liable for arbitrary or bad faith renunciation of an agreement.  See Klawitter v. Billick, 308 Minn. 325, 331-32, 242 N.W.2d 588, 593 (1976); Olson v. Penkert, 252 Minn. 334, 90 N.W.2d 193 (1958), and good faith and fair dealing between parties is an implicit term of any contract.  Earle R. Hanson & Assoc. v. Farmer's Coop.  Creamery Co., 403 F.2d 65, 69 (8th Cir. 1968) (Minnesota law, equity); Van Gemert v. Boeing Co., 553 F.2d 812, 815 (2d Cir. 1977).  In light of CRI's frustration with Watson's previous indecision, which prompted its insistance on a signed agreement, it is reasonable to assume the parties expected Watson had committed himself to Something.  Moreover, a promise to act in good faith and reasonably in bringing the condition about, in accepting or rejecting the Heitman proposal, is necessarily implied.  Otherwise, Watson's promise would have been conditioned upon the future happening of an event entirely within his control, and therefore illusory.  1, 1A A. Corbin, A Comprehensive Treatise on the Working Rules of Contract Law, §§ 149, 163, 165 (1963); J. Calamari and J. Perillo, The Law of Contracts §§ 70, 71 (1970); See, e. g., Richard Bruce & Co. v. J. Simpson & Co., 40 Misc.2d 501, 243 N.Y.S.2d 503 (1963).  The term acceptance, in an enforceable bilateral contract such as this became once CRI partially performed, cannot mean privilege to repudiate solely on whim, but excuse for non-performance to be exercised in good faith and honest judgment.  See Jay Dreher Corp. v. Delco Appliance Corp., 93 F.2d 275, 277 (2d Cir. 1937); Commercial Credit Co. v. Insular Motor Corp., 17 F.2d 896, 899-900 (1st Cir. 1927).

13
Watson also challenges the court's finding that, "(b)y refusing to perform in accordance with the terms of the September 18 contract, Watson made it impossible for CRI to produce a buyer as required.  CRI, at all times, stood ready, willing, and able to produce a buyer, but was precluded from doing so only by Watson's repudiation of the agreement."  Watson's factual arguments do not refute the finding that there was "reasonable likelihood of (CRI's) ability to produce a buyer," Klawitter v. Billick, 308 Minn. at 333-34, 242 N.W.2d at 594, or that Watson's breach prevented CRI from performing.  The court not only found CRI made substantial efforts and lined up at least two potential purchasers, but also that CRI itself was prepared to purchase.  Although Watson points out the September 18 contract did not compel CRI to buy, this alone would not preclude finding CRI was ready and willing to do so.  Watson requests this court to reassess the evidence; he does not show the findings below were clearly erroneous.

14
III. Damages.

15
Watson asserts error in the damage awards, arguing: (1) Northland may not recover its commission, but only compensation for damage actually caused by breach; (2) there is no evidence of the reasonable value of CRI's or Northland's services, and the amount of CRI's damage award is fundamentally unfair; and (3) Northland and CRI are limited to recovery of net gains.

16
Under Minnesota law, an agent who has substantially and practically performed before breach, as Northland was found to have done here, can recover either the agreed upon commission or compensation for loss of what he would have received if he had been permitted to perform.  Klawitter v. Billick,308 Minn. at 329, 242 N.W.2d at 592.  The magistrate found Northland's recovery under either standard would be the same: $40,000.

17
Evidence of the reasonable value of Northland's and CRI's services is irrelevant, since each waived that theory of recovery.  Nor is CRI's $125,000 award fundamentally unfair.  The evidence supports it as the amount of profit CRI realistically expected, and it is not greater than Edidin's profit as Watson's agent in the sale of a smaller interest.

18
Net losses caused or gains prevented are the appropriate measure of damages for breach of an exclusive listing agreement.  Klawitter v. Billick,308 Minn. at 332, 242 N.W.2d at 593.  As Northland had performed all its obligations at the time of breach, it had already incurred costs deductible from its $40,000 fee.  Similarly, CRI had "made substantial efforts" at the time of breach and thus had probably already incurred substantial expenses.  Further expenses may have been anticipated, so CRI's award may not accurately represent its expected Net gain.  However, the record does not indicate that Watson raised this issue during trial or even at the later hearing on prejudgment interest.  He only challenged the award because it was a "secret profit" and because no certain figure could be set.  He did not give or elicit evidence to support deductions from $125,000, the figure CRI claimed as its minimum expectation of profit.  Failure to raise this issue below precludes its consideration on appeal.

19
Finally, Watson urges CRI was barred from bringing the action because it did not have a Minnesota real estate broker's license.6  We agree with the district court that the subject of the contemplated sale was not a business opportunity, but rather an equity interest in an Iowa limited partnership that owned a shopping center.  Indeed, the investment comes closer to the definition of a security in Chapter 80A of the Minnesota statutes, which has its own registration and broker licensing requirements.

20
IV. Prejudgment Interest.

21
In a consolidated appeal, Watson challenges awards of prejudgment interest of $15,760.65 to CRI and of $6,372.62 to Northland.  Judgment was entered on August 17, 1978, and notice of appeal was filed on September 8, 1978.  CRI and Northland moved under Rule 60 of the Federal Rules of Civil Procedure for an award of prejudgment interest on October 3 and 10, 1978; the judgment was amended to include interest on December 22, 1978.  The magistrate stated he had inadvertently failed to specify an award of interest and held such a judicial mistake came within Rule 60(b)'s provision for relief on the grounds of "mistake, inadvertence, surprise, or excusable neglect."

22
In this circuit, relief may be granted under Rule 60(b)(1) for judicial error when inadvertence is shown.  See Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir. 1969) (inadvertence not shown in allegedly erroneous award of interest); Southern Fireproofing Co. v. R. F. Ball Constr.  Co., 334 F.2d 122, 129 (8th Cir. 1964).  However, when the alleged error could have been corrected by appeal, the motion must be made within the time period allowed for appeal, so as to prevent its use as a substitute for timely appeal.  Id. at 836; See also Gila River Ranch, Inc. v. United States, 368 F.2d 354, 357 (9th Cir. 1966); Morgan Guaranty Trust Co. v. Third Nat'l Bank, 545 F.2d 758, 760 n. 3 (1st Cir. 1976); 7 Moore's Federal Practice P 60.22(3) at 262-63 (2d ed. 1979).  This requirement was not met here.

23
Judgment is ordered affirmed in part and reversed in part in accord with this opinion.

1
 The case was tried, by stipulation, to a magistrate; the district court adopted his findings and accepted his recommendation

2
 It is clear from the contract that Northland's receipt of its fee was contingent upon CRI's success in finding a buyer.  Thus, Northland had an interest in the contract and in CRI's performance and action for breach.  It also risked, as a practical matter, impairment of its ability to protect its interest by disposition of the suit in its absence.  Even though Northland would not have been bound if it were not a party, judgment in Watson's favor would clearly have been compelling precedent adverse to its own cause of action.  See Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531, 541-42 (8th Cir. 1970); Blake v. Pallan, 554 F.2d 947, 954 (9th Cir. 1977); Francis v. Chamber of Commerce, 481 F.2d 192, 195 n. 8 (4th Cir. 1973); Martin v. Travelers Indem. Co., 450 F.2d 542 (5th Cir. 1971); Nuesse v. Camp, 128 U.S.App.D.C. 172, 179-80, 385 F.2d 694, 701-02 (D.C.Cir.1967).  Northland's legal position in establishing the commission as the measure of its damages was unique to it and satisfied the requirement of a "minimal" showing of inadequate representation by other parties.  Trbovich v. United Mine Workers, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972)

3
 Luxem gave the following testimony:
A.  Well, at that point my role ceased.  I had no further responsibilities.  I had brought the parties together, screened the transaction, underwritten it, provided all the documentation.  I had put together an agreement that had been signed.  Northland had accepted the reduced fee.  I cleared that with the people there, and it was now CRI's responsibility to perform as Fred had expected them to.  I had no further involvement except if somebody was to contact me or ask me to deliver a copy or get some additional information that would be required to close.

4
 Watson does not dispute that he agreed with Heitman on September 30, 1975 to sell a 50% Interest for $3,900,000 rather than $3,500,000 as the September 18th contract stated, and tentatively agreed to sell a 10% Interest with a tax loss feature through Heitman.  The tax loss deal was not a condition of the $3,900,000 deal; that is, Watson was not necessarily precluded from the CRI tax loss sale by the higher price of the Heitman deal.  Watson consummated the basic Heitman proposal, after making some adjustments.  Through a former Heitman employee, Edidin and his partner, he sold tax losses and only approximately one-half the equity interest he would have sold under the CRI deal, for a higher price

5
 He also argues a "bankable written commitment" was not delivered.  This was a condition precedent that Watson caused to fail by rejecting the Heitman proposal

6
 Minn.Stat. § 82.33(1) provides in part:
No person shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any of the acts for which a license is required under this chapter without alleging and proving that he was a duly licensed real estate broker or salesperson at the time the alleged cause of action arose.
Minn.Stat. § 82.17(4) provides in part:
"Real estate broker" or "broker" means any person who:
(c) For another and for commission, fee or other valuable consideration or with the intention or expectation of receiving the same directly or indirectly lists, sells, exchanges, buys, rents, manages, offers or attempts to negotiate a sale, option, exchange, purchase or rental of any business opportunity or business, or its goodwill, inventory, or fixtures, or any interest therein;


546 F.2d 908
Cochranv.Ford Motor Co.*
No. 75-2730
United States Court of Appeals, Fifth Circuit
1/31/77

1
N.D.Ala.

AFFIRMED

*
 Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966


LAUREN CHASE, Respondent Below, Appellant,
v.
DOROTHY LOGAN, Petitioner Below, Appellee.
No. 170, 2009.
Supreme Court of Delaware.
July 21, 2009.

ORDER
MYRON T. STEELE, Chief Justice
This 21st day of July 2009, it appears to the Court that, on June 3, 2009, the Court issued a notice to show cause why this appeal should not be dismissed pursuant to Supreme Court Rule 29(b) for the appellant's failure to diligently prosecute the appeal by not by paying the Family Court filing fee and transcript costs. The appellant has failed to respond to the notice to show cause within the required ten-day period; therefore, dismissal of this action is deemed to be unopposed.
NOW, THEREFORE, IT IS HEREBY ORDERED, pursuant to Supreme Court Rules 3(b) and 29(b), that the within appeal is DISMISSED.