after an appeal of the original action. There was no way the appellate mandate could provide for Amtrak's decision to seek further relief since that decision did not become full-blown until after the mandate had issued. Moreover, it would be in incongruous for district courts to have the absolute right to hear petitions for further relief when no appeal is lodged but no right after an appeal unless expressly granted by an appellate court. On the basis of the foregoing, the Court finds jurisdiction proper.
B. Scope of Section 2202
Horn & Hardart's second concern is with the reach of section 2202. The respondent concedes that "further relief" embraces coercive remedies like damages. See Borchard, supra, at 441. However, Horn & Hardart argues that any damages "must in fact be 'further relief' which is 'based on' the declaratory judgment -- an alternative form of relief to which the litigant has already proved his entitlement in the declaratory judgment action." Respondent's Motion to Dismiss at 10 (citing 28 U.S.C. § 2202).
Respondent's construction of section 2202 is unduly narrow and does not state the law of the federal courts. Section 2202 expressly provides that "further relief" must be "based on" a declaratory judgment. Respondent construes the words "based on" to mean that further relief is only appropriate to effect a declaratory judgment. A few state courts have so held. In Oklahoma Alcohol Beverage Control Bd. v. Central Liquor Co., 421 P.2d 244 (Okla. 1966), the Court held that the Oklahoma Declaratory Judgment Act, which tracks the Uniform Declaratory Judgments Act, 9A Uniform Laws Annotated 1, only authorizes "further relief" "wherever such relief becomes necessary in order to effectuate the declaratory judgment." Central Liquor Co., supra, 421 P.2d at 247 (emphasis added). See also State Farm Mutual Auto Ins. Co. v. Mohan, 85 Ill. App. 2d 10, 228 N.E.2d 283, 290 (Ill.App.Ct. 1967) (the Illinois Declaratory Judgments Act "contemplates further relief based on the rights determined [in the earlier declaratory judgment proceeding]").
State precedent is, of course, not binding on this Court. Moreover, the cases relied upon by Horn & Hardart are not persuasive since neither bothers to closely read the language of their respective declaratory judgments statutes. Further relief, based on the original declaratory judgment, may be granted wherever it is either "necessary or proper." 28 U.S.C. § 2202 (emphasis added). Propriety is of course a broader concept than necessity. In consideration of this language, the requirement that a plea for further relief must be "based on" the declaratory judgment should be broadly read. In Edward B. Marks M. Corp. v. Charles K. Harris Music Publishing Co., 255 F.2d 518 (2d Cir.), cert. denied, 358 U.S. 831, 3 L. Ed. 2d 69, 79 S. Ct. 51 (1958), the Second Circuit held that a plaintiff who had initiated a declaratory judgment action to establish ownership rights in certain copyrights could thereafter petition for further relief pursuant to section 2202 for an adjudication of infringement and an accounting. Id. at 520, 522. Likewise, Amtrak's present claims for damages flow directly from the judgment of this Court. The Court finds it both proper and efficient for Amtrak to prosecute its claims in a petition for further relief. Having decided the action upon which Amtrak's petition is founded, the Court is familiar with the case. To force Amtrak to initiate a new lawsuit which might be heard by a different court would be wasteful of judicial resources.
Horn & Hardart's third contention is that Amtrak's request for further relief is time barred by Federal Rule of Civil Procedure ("Rule") 59(e). That Rule states, "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." Fed. R. Civ. P. 59(e).
In support of its position, respondent cites to numerous cases holding that attorney fees, recovery for which is integral to the merits of a case, must satisfy the requirements of Rule 59(e). See, e.g., Hairline Creations, Inc. v. Kefalas, 664 F.2d 652, 660 (7th Cir. 1981); Hooper v. FDIC, 785 F.2d 1228, 1232 (5th Cir. 1986). Horn & Hardart asks the Court to analogize this reasoning to the instant case. Although no court has ever applied Rule 59(e) to petitions for "further relief," Horn & Hardart maintains that the absence of judicial application does not imply that Rule 59(e) should not be applied in declaratory judgment actions. Respondent's Reply at 7. To the contrary, the Court construes judicial silence in this area as an indication that the respondent's argument has no merit.
Rule 59(e) is phrased in terms of altering or amending a judgment; section 2202 provides for a different kind of remedy: further relief. Moreover, Rule 59(e) explicitly states that any motions to alter or amend a judgment "shall be served not later than 10 days after entry of the judgment." Fed. R. Civ. P. 59(e). There is no similar language in section 2202. The Court will not divine congressional intent to impose a rigid 10-day time limit on petitions for further relief without the slightest hint that such an obstacle is meant to exist.
More properly, the rule in the federal courts is that a petition for further relief can be brought so long as the petitioner is not barred by laches. See Edward B. Marks Music Corp., supra, 255 F.2d at 522; see also Besler v. United States Dep't of Agriculture, 639 F.2d 453 (8th Cir. 1981) (20 months elapsed before petitioner sought further relief); see generally 10A C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure § 2771 (1983) (section 2201 "is broad enough to permit the court to grant additional relief long after the declaratory judgment has been entered, provided that the party seeking relief is not barred by laches"). Applying this standard, Amtrak's action, filed less than two months after the decision of the Court of Appeals affirming Horn & Hardart I, was undoubtedly timely.
Horn & Hardart next sets up a defense based on Rule 13(a). In pertinent part, that Rule states the following:
[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim. . . .