Southern Coal Corporation v. IEG PTY LTD. et al

Filing 155

OPINION AND ORDER denying 148 MOTION for Reconsideration of Order Granting BBC's Motion to Dismiss by Southern Coal Corporation. Southern's claim against BBC was time-barred as Southern brought suit more than one year after receipt of the goods. Accordingly, the Court DENIES Southern's motion. ECF No. 148.Copy provided to all counsel of record.Signed by District Judge Robert G. Doumar on 1/29/2016. (bgra)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

JAN 2 9 2016
SOUTHERN COAL CORPORATION,
c

Plaintiff,

i

v.

IEG PTY, LTD,
CIVIL NO. 2:14c\617

INTERMARINE, LLC,
BBC

CHARTERING

&

LOGISTIC

GMBH & CO. KG,
and

MS "ANITA" KAI FREESE
Defendants.

OPINION AND ORDER

This matter comes before the Court upon the filing of "Southern Coal's Motion for
Reconsideration of Order Granting BBC's Motion to Dismiss" by Southern Coal Corporation
("Southern"). ECF No. 148. For the reasons stated herein, the Court DENIES Southern's
motion. ECF No. 148.

I.

FACTUAL AND PROCEDURAL HISTORY

The factual and procedural history of this case have previously been fully outlined in the
Court's Order dated December 4, 2015 ("December Order"). ECF No. 142. Following the entry
of the Court's December Order, on December 29, 2015, Southern filed the instant motion
("Reconsideration Motion") requesting reconsideration of the December order's dismissal of

BBC Chartering & Logistic GmbH & Co. KG ("BBC"). ECF No. 148. BBC filed its opposition

to Southern's motion on January 12, 2016. ECF No. 150. On January 13, 2016, Southern filed a
1

related motion requesting hearing of its motion for reconsideration. ECF No. 151. On January

19,2016, Southern replied to BBC's Opposition. ECF No. 152. These motions are now ripe.
II.

STANDARD OF REVIEW

Southern has moved for reconsideration under Federal Rule of Civil Procedure 54(b).

Rule 54(b) provides, in pertinent part:
[A]ny order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the

entry of a judgment adjudicating all the claims and all the parties' rights and
liabilities.

Fed. R. Civ. P. 54(b). The resolution of motions to reconsider pursuant to Rule 54(b) is at the
discretion of the district court and may be exercised "as justice requires." Am. Canoe Ass'n v.

Murphv Farms. Inc.. 326 F.3d 505, 514-15 (4th Cir. 2003).

Although the United States Court of Appeals for the Fourth Circuit in its opinion on Am.
Canoe Ass'n made clear that the standards governing reconsideration of final judgments are not
determinative of a Rule 54(b) motion, many courts in this circuit have appropriately considered

those factors in guiding the exercise oftheir discretion under Rule 54(b).1 Thus, courts generally
do not depart from a previous ruling unless "(1) a subsequent trial produces substantially
different evidence, (2) controlling authority has since made a contrary decision of law applicable
to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice."
Am. Canoe Ass'n, 326 F.3d at 515 (quoting Seiman v. Warner-Lambert Co.. Inc., 845 F.2d 66,

69 (4th Cir. 1988)). Such problems "rarely arise and the motion to reconsider should be equally

1See, e.g.. TomTom. Inc. v. APT Svs. GmbH. 17 F. Supp. 3d 545, 546-47 (E.D .Va.2014): Al Shimari v.
CACI Intern.. Inc.. 933 F. Supp.2d 793 (E.D. Va.2013); Above the Belt. Inc. v. Mel Bohannan Roofine. Inc.. 99
F.R.D. 99, 101 (E.D.Va 1983).

rare." TomTom. Inc. v. APT Svs. GmbH. 17 F. Supp. 3d 545, 546-47 (E.D. Va. 2014) (quoting
Above the Belt. Inc. v. Mel Bohannan Roofing. Inc.. 99 F.R.D. 99, 101 (E.D. Va 1983)).

A motion for reconsideration is "an extraordinary remedy which should be used

sparingly." Zaklit v. Global Linguist Solutions. 2014 WL 4161981, at *1-2 (E.D. Va. Aug. 19,
2014) (quoting Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co.. 148 F.3d 396, 403 (4th Cir. 1998)).
Generally, "[cjourts do not entertain motions to reconsider which ask the Court to 'rethink what

the Court had already thought through—rightly or wrongly.'" McAfee v. Boczar. 2012 WL
2505263, at *l-3 (E.D. Va. June 28, 2012) (quoting Above the Belt. Inc. v. Mel Bohannan
Roofing. Inc.. 99 F.R.D. 99, 101 (E.D. Va 1983)).
III.

ANALYSIS

In its Motion to Reconsider, Southern fails to identify any change in applicable law or

pertinent facts since the entry of this Court's December Order. Instead, Southern asks the court
to reconsider its application of Norfolk S. Rv. v. Kirby. 543 U.S. 14 (2004) to the case.

Specifically, Southern asserts that the circumstances addressed in Kirby are dissimilar to those
present between Southern and BBC. ECF No. 149. Based on this, Southern argues the Court has
committed a "clear error of law and a misapprehension of the facts." ECF No. 152 at 3. Southern

in its filings goes so far as to claim that the Court's application of Kirby.
is not merely permitting BBC to enjoy the benefit of the liability limitation
provision contained in the Freese Booking Note/First Bill of Lading. Instead, this
Court is fashioning a new rule that permits carriers like Freese to form entirely
new contracts of carriage containing whatever terms they find useful to achieving
their own ends and then binding a shipper that had nothing to do with that new
contract to those terms that shipper specifically wanted to avoid.
ECF No. 149 at 7. Southern, however, has misunderstood the Court's ruling in the December
Order.

As the December Order clearly states as the only holding related to holdings of Kirbv.

"BBC may rely on the enforceability of the Second Bill of Lading and the liability limitations of
the Second Bill of Lading."

ECF No. 142 at 6. BBC's ability to rely upon the liability

limitations in the Second Bill of Lading, on the basis that it had contracted with an intermediary

in possession of the cargo, only governs the claim against BBC. Such reliance is clearly in
accordance in with the ruling in Kirbv where the Supreme Court in restating the holding of Great
N. R. Co. v. O'Connor, "because the intermediary had been 'entrusted with goods to be shipped

by railway, and, nothing to the contrary appearing, the carrier had the right to assume that [the
intermediary] could agree upon the terms of the shipment.'" 543 U.S. at 34 (quoting Great
Northern. 232 U.S. 508, 514 (1914)).

Whether or not the intermediary had the authority to enter into such a contract has not in

any way been determined and is far better taken up with Southern's claims against the
intermediary. Additionally, if the intermediary had the authority to contract with a secondary

carrier any gaps between the liability limitations would fall to the intermediary rather than to
BBC. This is exactly the approach suggested by the Supreme Court in Kirbv where the Court

held, "It seems logical that [the intermediary]—the only party that definitely knew about and was
party to both of the bills of lading at issue here—should bear responsibility for any gap between
the liability limitations in the bills." Kirbv. 543 U.S. at 35.

This Court finds no clear error of law in its previous ruling dismissing BBC. BBC had the

right to rely upon the Second Bill of Lading's liability limitations including the one time-bar of
the Carriage of Goods by Sea Act (COGSA) which was applied by contract. As such, Southern's

claim against BBC was time-barred as Southern brought suit more than one year after receipt of
the goods. Accordingly, the Court DENIES Southern's motion. ECF No. 148.

The Clerk is DIRECTED to forward a copy ofthis Order to all CoiuiscfofRecord.
&U
IT IS SO ORDERED.
Robert G.Douniar\
Senior United Sti

UNITED STATES DISTRICT JUDGE

Norfolk. VA

January •*•/ , 2016