Summary
holding the application of settled law on the enforceability of forum selection clauses to the facts at hand is not a question of law over which there is a "substantial ground for difference of opinion."
Summary of this case from Emerson Elec. Co. v. YeoOpinion
Case No. 04-61432-CIV-ZLOCH.
February 21, 2006
ORDER
THIS MATTER is before the Court upon Defendant Christensen Shipyards, Ltd.'s Motion For Reconsideration, Or In The Alternative, Motion To Dismiss Woods' and Privacy, Ltd.'s Claims, Or In The Alternative Motion To Amend (DE 72). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises.
To the extent the instant Motion (DE 72) seeks reconsideration of the Court's prior Order (DE 70) denying Defendant's Motion To Dismiss (DE 35), the Court construes the instant Motion as seeking relief from the Court's prior Order (DE 70) pursuant to Federal Rule of Civil Procedure 60(b). Defendant Christensen (hereinafter "Christensen") states that it is filing the instant Motion (DE 72) pursuant to Federal Rule of Civil Procedure 54 which provides that
any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment, adjudicating all of the claims and the rights and liabilities of all of the parties.
Fed.R.Civ.P. 54. While the Court may revise any of its intermediary orders, in essence the relief that Christensen is seeking in the instant Motion (DE 72) is "relief from judgment or order," in this case an order, which is specifically addressed by Rule 60. Accordingly, the Court will review the instant Motion (DE 72) pursuant to Rule 60.
I. Background
In the instant Motion (DE 72), Christensen requests the Court to reconsider its Order (DE 70) denying Christensen's Motion (DE 35) to dismiss the above-styled cause because it states that the "`potential' for inconsistent judgments is not, in and of itself, sufficient to support the court's conclusion that enforcement of the forum selection clause would be unreasonable." DE 72, p. 5. Christensen cites, Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1296 (11th Cir. 1998) which states when a forum selection clause will be found unreasonable and unenforceable only when certain circumstances are present. DE 72, p. 5. Further, Christensen distinguishes the Court's prior Order (DE 70) from various cases, and states that Plaintiffs Woods and Privacy, Ltd. "cannot otherwise avoid an otherwise enforceable forum selection clause by joining parties that did not sign the contract," DE 72, p. 10, and provides citations in support of said argument. Finally, Christensen seeks leave from the Court to certify the question regarding the enforceability of the forum selection clause pursuant to 28 U.S.C. § 1291.
II. Rule 60(b)
The Court notes that it may grant relief from an order for any of the grounds set forth in Fed.R.Civ.P. 60 (b). Rule 60(b) provides in relevant part that:
[T]he court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment have prospective application; or
(6) any other reason justifying relief from the operation of judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Fed.R.Civ.P. 60(b). A district court is justified in reconsidering a prior order pursuant to Federal Rule of Civil Procedure 60(b) when (1) there is an intervening change of law; (2) new evidence is available; or (3) there is a need to correct clear error or manifest injustice. Lamar Adver. of Mobile, Inc. v. City of Lakeland, Florida, 189 F.R.D. 480, 489 (M.D. Fla. 1999) A motion to reconsider must demonstrate why the court should reconsider its prior decision and "set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Socialist Workers Party v. Leahy, 957 F. Supp. 1262, 1263 (S.D. Fla. 1997) (quoting Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294, 295 (M.D. Fla. 1993)). Such a motion "is not a vehicle for rehashing arguments already rejected by the court or for refuting the court's prior decision." Wendy's Int'l, Inc. v. Nu-Cape Constr., Inc., 169 F.R.D. 680, 686 (M.D. Fla. 1996). Finally, the determination of Rule 60(b) motion is generally left to the sound discretion of the district court.See Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (citing Am. Bankers Ins. Co. v. Nw. Nat'l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999)).
In its prior Order (DE 70), the Court reviewed the forum selection clause pursuant to the factors set forth by the United States Supreme Court in Bremen v. Zapata Off-Shore Company, 407 U.S. 1 (1972), which was later employed by the 11th Circuit inLipcon. Forum selection clauses are presumptively valid "where the underlying transaction is fundamentally international in character." Lipcon, 148 F.3d at 1295 (citations omitted). The test, then, that was set forth in Bremen and applied inLipcon was a test for overcoming the presumption of validity for an agreement that is "fundamentally international in character." See id. at 1295-96. In the instant case an international agreement is not at issue as was present inBremen and in Lipcon, but rather a domestic agreement. The test is applicable to a domestic agreement, but as the Supreme Court when reviewing a domestic agreement stated in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 592 (1991),Bremen "did not define precisely the circumstances that would make it unreasonable for a court to enforce a forum selection clause." In light of the posture, facts, and circumstances of the above-styled cause, in particular that it involves a domestic agreement, and the Supreme Court jurisprudence addressing the enforcement of forum selection clauses, the Court determined that the forum selection clause in the above-styled clause is unenforceable.
While 28 U.S.C. § 1404, "Change of Venue," as addressed by the Supreme Court in Stewart Organization, Inc. v. Ricoh Corporation, 487 U.S. 22 (1988), did not govern this Court's consideration, its "individualized case-by-case consideration of convenience and fairness," id. at 29, is illuminative when reviewing a forum selection clause whose enforcement would function as a transfer of the action upon Plaintiffs' refiling of the case in a different forum.
As the Court stated in its prior order (DE 70), upon the enforcement of the forum selection clause both parties would be required to litigate Plaintiff Elin Woods' claims here in this Court. Also, upon the refiling of claims by Woods and Privacy, Ltd. in Washington state, there would result parallel proceedings in different forums on the same set of facts and legal issues. Therefore, there is a strong potential for competing or opposing verdicts on the same facts. Further, considerations of judicial economy precluded the enforcement of the forum selection clause. After a careful review of the instant Motion (DE 72) and the entire court file herein, the Court finds that there has been no intervening change in law, no new evidence, or any reason to correct clear error or manifest injustice. Further, the Court finds that the arguments asserted by Christensen in the instant Motion (DE 72) rehash the arguments that Christensen previously asserted and that were rejected by this Court. While Christensen objects to the Court's reliance on cases not cited by either party (DE 80, p. 2), the Court finds that this does not provide a basis for reconsideration. Further, Christensen's request to dismiss only Woods' and Privacy Ltd.'s claims does not provide a basis for Christensen's instant Motion (DE 70). The case law in support of Christensen's request was available at the time of its instant Motion (DE 35), but was not asserted in said Motion (DE 35). Christensen should not be permitted to conduct piecemeal litigation by requesting in the instant Motion (DE 72) that Woods' and Privacy, Ltd.'s claims be dismissed when said relief could have been requested in its original Motion To Dismiss (DE 35). Therefore, the Court finds that there is no basis for the Court to reconsider it's prior Order (DE 70).
III. Interlocutory Appeal
In the instant Motion (DE 72), Christensen requests, pursuant to 28 U.S.C. § 1291, that if "this Court does not reverse its decision on Christensen's Motion To Dismiss then this Court should amend its Order to certify this question for interlocutory appeal." DE 72, p. 13. The Court notes that 28 U.S.C. § 1291 permits appeals from "[f]inal decisions of district courts," and the denial of a motion to dismiss based on a contractual forum selection clause is not immediately appealable pursuant to 28 U.S.C. § 1291. See Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, (1989). However, in its Reply (DE 80), Christensen states that it incorrectly cited 28 U.S.C. § 1291 instead of 28 U.S.C. § 1292(b).
28 U.S.C. § 1292(b) provides,
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.28 U.S.C. § 1292(b) (1993). For a question to be a "controlling question of law," it must be "a question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine," and "does not mean the application of settled law to fact." McFarlane v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir. 2004) (quoting Ahrenholz v. Board of Trustees of the Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000)). Regarding the "substantial ground for difference of opinion" requirement, the United States Court of Appeals for the Eleventh Circuit has "held the question of law as to which [it] [is] in `complete and unequivocal' agreement with the district court is not one for § 1292(b) review." Id. (citation omitted). Finally, the resolution of a question will "materially advance the ultimate termination of the termination of the litigation" when such resolution "would service to avoid a trial or otherwise substantially shorten the litigation." Id. at 1259.
First, Christensen does not set forth a question of law over which there is a "substantial ground for difference of opinion," rather, Christensen disputes the way in which this Court applied the law to the facts in the above-styled cause. The Court set forth the settled law on the enforceability of forum selection clauses, as explained above, and applied that to the facts in the case at hand. Such a dispute about the factual application is not a question for interlocutory appeal. Id. at 1258. Therefore, the Court finds that there is no basis to certify its prior Order (DE 70) for interlocutory appeal.
In addressing 28 U.S.C. § 1292 in its Reply (DE 80), Christensen cites a passage from the Senate Judiciary Comments cited in McFarlin which addresses the saving of time and expense by the parties with a case in which the federal court did not have jurisdiction. Christensen states that were this Court to certify its Order (DE 70) for interlocutory appeal "considerable time and expenses will be saved." DE 80, p. 9. Unlike McFarlin, in the above-styled cause there is no question regarding jurisdiction without which a court cannot properly act. A case in which jurisdiction at issue is one which might warrant interlocutory appeal because a court must determine its jurisdiction over a case before proceeding to the merits. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 98 (1998) (citation omitted). Here the Court has jurisdiction pursuant to 28 U.S.C. § 1332, and the essential foundation of whether the Court has jurisdictional authority to proceed over the above — styled cause is not in dispute. What was in dispute in this case, however, was the enforcement of the forum selection clause which the Court determined was unenforceable for the reasons set forth in its prior Order (DE 70). Further, the Court notes that the Supreme Court "has declined to find the costs associated with unnecessary litigation to be enough to warrant allowing the immediate appeal of a pretrial order." See Lauro Lines, S.R.L. 490 U.S. at 499 (citation omitted).
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED Defendant Christensen Shipyards, Ltd.'s Motion For Reconsideration, Or In The Alternative, Motion To Dismiss Woods' and Privacy, Ltd.'s Claims, Or In The Alternative Motion To Amend (DE 72) be and the same is hereby DENIED.
DONE AND ORDERED.