FORD v. EF EXPLORE AMERICA, INC et al
Filing
92
OPINION & ORDER; denying 85 Motion for Reconsideration; etc. Signed by Judge Kevin McNulty on 10/25/2019. (sms)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NATASHA FORD, individually and
on behalf of her minor child C.F.
(Minor),
Civ. No. 18-2800 (KM)
Plaintiffs,
OPINION & ORDER
V.
EF EXPLORE AMERICA, INC.;
HOLIDAY CLARK, LLC; and U.S.
SECURITY ASSOCIATES, INC.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
By this motion (DE 85), the plaintiff seeks reconsideration of the Court’s
prior Opinions (DE 49, DE 83) and Order (DE 84). The earlier (DE 49) focused
on the enforceability of a forum selection clause as between Ford and EF; the
later (DE 83) focused on the enforceability of the clause in light of the interests
of the non-signatory defendants. Both times, I found against plaintiff and
ultimately transferred venue to the U.S. District Court for the District of
Massachusetts. (DE 84) See 28 U.S.C.
§ 1404(a). In doing so, I applied In re:
Howmedica Osteonics Carp, 867 F.3d 390, 402 (3d Cir. 2017), cert. denied, 138
S. Ct. 1288 (2018). I
write
for the parties, and familiarity with the prior
decisions and proceedings is assumed.
The standards governing a motion for reconsideration are well settled.
See generally D.N.J. Loc. Civ. R. 7.1(i). Reconsideration is an “extraordinary
remedy,” to be granted “sparingly.” NL Indus. Inc. v. Commercial Union Ins. Co.,
935 F. Supp. 513, 516 (D.N.J. 1996). Generally, reconsideration is granted in
three scenarios: (1) when there has been an intervening change in the law;
(2) when new evidence has become available; or (3) when necessary to correct a
clear error of law or to prevent manifest injustice. See North River Ins. Co. v.
1
CIGNA Reinsurance Co., 52 F.Sd 1194, 1218 (3d Cir. 1995); Carmichael v.
Everson, No. 3-cv-4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004). Local
Rule 7.1(i) requires such a motion to specifically identify “the matter or
controlling decisions which the party believes the Judge or Magistrate Judge
has overlooked.” Id.; see also Egloff u. New Jersey Air Nat’! Guard, 684 F. Supp.
1275, 1279 (D.N.J. 1988). Evidence or arguments that were available at the
time of the original decision will not support a motion for reconsideration.
Damiano v. Sony Music Entm’t, Inc., 975 F. Supp. 623, 636 (D.N.J. 1997); see
also North River Ins. Co., 52 F.3d at 1218; Bapu Corp. a Choice Hotels Int’l, Inc.,
No. 7-cv-5938, 2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010) (citing P.
Schoenfeld Asset Mgmt. LLC u. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J.
2001)).
The motion for reconsideration is succinct and focused, as it should be,
on particular facts that the plaintiff did not possess at the time of the original
decision. The plaintiffs state that, two days after my earlier decision, they
obtained from defendants copies of certain records of the police department of
Clark, New Jersey. The police investigation, plaintiffs state, revealed that the
security guard had a criminal record. It also listed the names of some seven
police officers or prosecutors involved in the case, as well as five employees of
the hotel and U.S. Security. These the plaintiff refers to as “key witnesses,”
although the basis for any such conclusion is not stated.
Plaintiff first states that this evidence was unavailable, because the
police department “had been served with an order to produce” but had not
complied timely. The use of the passive voice obscures that it was the
defendant who sought and obtained this information, and then shared it with
the plaintiff. So the plaintiffs have not established that they themselves made
diligent efforts to obtain such evidence in New Jersey, their preferred forum. I
do not accept that the plaintiffs could not have uncovered these facts on their
own, if they had made an effort to do so. For this reason alone, I would deny
reconsideration.
2
At any rate, this allegedly newly discovered evidence would not sway the
court’s decision. As to Ford and the signatory, EF, the location of additional
evidence or witnesses would not transform this into the “most unusual case” in
which a contractual forum selection clause would be overridden. (See Opinion,
DE 49,) Indeed, such private interests carry no weight as between parties who
have contracted for a contrary result. Howmedica, 867 F.3d at 402. In short, it
is likely that plaintiffs would be litigating, at least as against EF, in
Massachusetts, irrespective as to my decision regarding other defendants.
As to the interests of other parties, the location of evidence and witnesses
can play some role in the Howmedica calculus. It is, however, but one of the
multiple “private interests” that are at stake. In my earlier opinion, I noted that
many of the witnesses and documents would be located outside of New Jersey,
although some would be in this state. Although I did not then focus on the law
enforcement and prosecution personnel now named, it is not at all clear that
they—as opposed to the facts they uncovered—would be such “key witnesses,”
as claimed. In any event, they remain available for examination, and this new
material does not outweigh the factors of contractual choice, efficiency, etc., as
well as the public interests discussed in the earlier opinion.
I do not lose sight, moreover, of the fundamental principle that it is
primarily the interests of the nonsignatozy codefendants that are implicated in
this analysis. These codefendants do not object to a Massachusetts forum, and
indeed are obligated to litigate any claims between themselves and EF in
Massachusetts.
ORDER
For the reasons stated above, the motion for reconsideration (DE 85
is DENIED.
Pj
KEVIYMCNULTY,
3
.S.D.J.
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