and reasonable attorney fees incurred in opposing the requests for preliminary injunctions in this Court and in prosecuting their successful appeals.
The Order of the Court of Appeals prescribes that each party is to bear its own costs. This determination is dispositive of the question of costs on appeal and cannot be reconsidered here. It is also proper to infer from the aforementioned Order that each party is to bear his or its own expenses and attorney fees incurred on appeal.
There remains for consideration defendants' requests for costs, expenses and attorney fees incurred by the defendants in opposing the requests for preliminary injunctions in this Court. I conclude this request is prematurely made. It is the generally followed federal rule that there can be no recovery of damages caused by a preliminary injunction even if set aside, unless final judgment after trial is in favor of the party who has been enjoined. Madison Shipping Corp. v. National Maritime Union, 204 F. Supp. 22, 23 (E.D. Pa. 1962); Meeker v. Stuart, 188 F. Supp. 272, 276 (D.D.C. 1960), aff'd, 110 U.S. App. D.C. 161, 289 F.2d 902 (1961), and cases cited therein; 3 Barron & Holtzoff, Fed. Prac. & Proced. § 1435 (1958).
There has been no final determination of plaintiffs' claims for injunctive relief. The Court of Appeals expressly reversed the trial court on procedural grounds alone and did not reach or consider the merits of the lower court's decrees. Due to the agreement and stipulation of counsel for the parties, the merits of plaintiffs' requests have not been reached by this Court. In the present posture of the case, the requests for both preliminary and final injunctive relief remain pending before the Court. Absent any final determination upon the merits of the requests for injunctive relief, defendants are not entitled to recover.
This conclusion now made renders it unnecessary for the Court to decide whether the terms of Section 7 of the Norris-LaGuardia Act, 29 U.S.C.A. § 107, requiring security for reasonable attorney's fees and legal expenses, must be read into a bond filed precedent to the issuance of an injunction against concerted activity alleged to be in violation of a collective bargaining agreement.
An appropriate Order is entered.
Now, this 30th day of September 1970, defendants' Motions for costs, expenses and attorney fees are hereby denied without prejudice to their right to re-submit similar motions should the outcome of the proceedings warrant the same.
Presently before the Court is a Motion of certain of the defendants requesting reconsideration of the Order of this member of the Court dated September 30, 1970 denying the Motion of all defendants for costs, expenses and attorneys fees. In the Court's Opinion filed with the aforesaid Order, it was concluded that defendants were precluded from recovering costs, expenses and attorneys fees incurred on appeal from the Order of this Court dated June 25, 1970, since the Order of the Court of Appeals specifically provided that each party was to bear his own costs of the appeal. Also, it was concluded that defendants' requests for costs, expenses and attorneys fees incurred in this Court prior to the appeal were premature, since there had been no final determination of the merits of plaintiffs' claim for injunctive relief.
Defendants' filing the instant Motion for Reconsideration requested that this Court defer ruling upon the Motion until the Court of Appeals had acted upon defendants' request therein for a clarification of its Order reversing the Order of this Court dated June 25, 1970. Upon consideration of defendants' Motion for Clarification, the Court of Appeals denied the same on October 20, 1970. This decision of the Court of Appeals provides no basis for reconsideration here.
Defendants also assert as a basis for reconsideration the oral statements made by this member of the Court at a hearing conducted upon defendants' Motions to Dismiss on September 22, 1970, wherein the Court indicated that it might favorably entertain the request of defendants for dismissal of plaintiffs' claims for injunctive relief. For reasons stated in an Opinion filed on December 16, 1970, the Court has deemed it appropriate to retain jurisdiction of the claims for injunctive relief. However, even if the claims for injunctive relief had been dismissed, the dismissals would have been based upon an event occurring subsequent to the filing of the requests for preliminary injunctive relief, i.e. the return of the men to work. The Court fails to see how dismissals founded upon such changed circumstances could reflect upon the propriety of plaintiffs' original requests for preliminary injunctions restraining work stoppages existing at the time of the filing thereof.
Accordingly, reconsideration will be denied. An appropriate order is entered.
NOW, this 16th day of December 1970, defendants' Motion for Reconsideration is denied.