United States District Court,
S.D. New York.
HARTFORD FIRE INSURANCE CO. a/s/o Evergreen Solar, Inc., Plaintiff,
v.
EXPEDITORS INTERNATIONAL OF WASHINGTON, INC., et al., Defendants.
No. 10 Civ. 5643(KBF).
Dec. 11, 2012.
MEMORANDUM DECISION & ORDER
KATHERINE B. FORREST, District Judge.
*1 On July 9, 2012, this Court granted defendant Intransit Container, Inc.’s (“Intransit”) motion for summary judgment as to all claims against Intransit. Hartford Fire Ins. Co. v. Expeditors Int’l of Wash., Inc., No. 10 Civ. 5643, 2012 WL 2861433 (S.D.N.Y. July 9, 2012) (the “July 9 decision”). The Court found that the Carriage of Goods by Sea Act (“COGSA”)—not the Carmack Amendment—applied to the instant dispute, and that under COGSA, plaintiff Hartford Fire Insurance Co. (“Hartford”) had failed to make out a prima facie case of liability or to raise a triable issue of fact sufficient to defeat summary judgment. Id. at *6–7.
On July 23, 2012, Hartford moved for reconsideration of the July 9 decision. (ECF No. 50.) On July 31, 2012, the Transportation and Logistics Council (“TLC”) filed a motion for leave to file brief as amicus curiae in support of Hartford’s motion. (ECF No. 52.) For the reasons set forth below, both motions are DENIED.
DISCUSSION
The undisputed facts were set forth in the Court’s July 9 decision. See Hartford Fire Ins. Co., 2012 WL 2861433, at *1–3. Familiarity with that decision is assumed.
The standard for granting reconsideration is strict. Generally, motions for reconsideration are not granted “unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995); see also Rule 6.3, Local Civil Rules, S.D.N.Y. “Controlling authority means decisions of the Second Circuit Court of Appeals or the U.S. Supreme Court.” Ivan Visin Shipping. Ltd. v. Onego Shipping & Chartering B.V., 543 F.Supp.2d 338, 339 (S.D.N.Y.2007) (citation omitted). The Court should not revisit a prior order unless there is “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992) (quotation marks omitted). A motion for reconsideration should be denied if the moving party “merely offers substantially the same arguments [ ] offered on the original motion.” U.S. v. Kerik, 615 F.Supp.2d 256, n. 27 (S.D.N.Y.2009) (internal quotation marks omitted). Ultimately, however, the decision to grant or deny the motion for reconsideration is within “the sound discretion of the district court.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir.2009) (citation omitted).
Hartford seeks reconsideration of the July 9 decision on two grounds. First, Hartford seeks reconsideration of the Court’s determination that COGSA, rather than the Carmack Amendment, applies to the instant dispute, on the grounds that because Intransit acted as a “receiving rail carrier” and was thus, subject to the Surface Transportation Board’s jurisdiction, it should have issued a Carmack-compliant bill of lading, meaning that Carmack should apply to this dispute. Specifically, Hartford argues that the Court did not correctly apply the Supreme Court’s decision in Kawasaki Risen Kaisha Ltd. v. Regal–Beloit Corp., 130 S.Ct. 2433 (2010) (“Regal–Beloit” ) to the facts of the instant action. (Mem. of Law in Support of Pl.’s Mot. for Reconsid. at 1–3, ECF No. 51.) FN1
FN1. TLC’s amicus brief argues in support of the motion for reconsideration on much the same ground. (See generally Mem. of Law of the Transp. & Logistics Council in Supp. of Mot. for Leave to File Br. Amicus Curiae (“TLC Mem.”) (ECF No. 52.).) “District courts have broad discretion to permit or deny an appearance by amicus curiae in a case.” Auto. Club of New York. Inc. v. Port Auth. Of New York & New Jersey, No. 11 Civ. 6746, 2011 WL 5865296, at *1 (S.D.N.Y. Nov. 22, 2011). Amicus curiae, literally meaning “friend[s] of the court,” are meant to “aid the court and offer insights not available from the parties.” Id. Amicus briefs should be accepted “when a party is not represented competently or is not represented at all … or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.” Id. (quotation marks omitted).
In its amicus brief, TLC has set forth the same bases as plaintiff in support of the reconsideration motion. In addition, TLC disclosed that its Executive Director, George Pezold, is also a senior partner in the firm representing plaintiff in this action. (TLC Mem. at 2 n1.) Although TLC’s Board of Directors (of which Mr. Pezold is not a member) voted on whether to file the amicus brief, Mr. Pezold’s close relationship with TLC demonstrates that TLC is more a “friend of the plaintiff rather than a “friend of the court .” Accordingly, TLC’s request for leave to file its amicus curiae brief is denied.
*2 For all the reasons set forth in the Court’s July 9 decision, the Court affirms its determination that COGSA applies to the instant dispute. See also Royal & Sun Alliance Ins., PLC v. Serv. Transfer, Inc., No. 12 Civ. 97(DLC), 2012 WL 6028991, at *3–4 (S.D .N.Y. Dec. 4, 2012).
Second, Hartford also argues that reconsideration is warranted because it adduced evidence at least to create a triable issue of fact on the question of liability. Hartford argues that the Court incorrectly shifted the burden of proof onto it in deciding Intransit’s motion for summary judgment. That is incorrect. By virtue of having moved for summary judgment, Intransit argued that there was not triable issue of fact with respect to Hartford’s ability to establish a prima facie case of liability as to Intransit. Thus, on Intransit’s motion, Hartford has the burden to make out a prima face case of liability and raise a triable issue of fact. See Transatlantic Marine Claims Agency, Inc. v. OOCL Inspiration. 137 F.3d 94, 98 (2d Cir.1998). That it has not done, and thus, Intransit is entitled to summary judgment. See Sam Jin World Trading, Inc. v. M/V Cap San Nicolas, No. 09 Civ. 3997(LMM), 2010 WL 2670847, at *2 (S.D.N.Y. July 2, 2010).
To the extent that plaintiff seeks to rely on the Report of Survey as evidence the Court “overlooked,” the Survey did not provide evidence of loading—i.e., facts demonstrating that the goods were delivered to the carrier in good condition.FN2 See Hartford Fire Ins. Co., 2012 WL 2861433, at *3. The Survey states only where the container was loaded, not about how it was loaded. Id. Although the Survey, concludes, that “[p]ackaging [of the goods] is not involved,” id., that only addresses the issue of packaging and not whether the method or manner of loading (for instance, stacking) did or did not occur by Evergreen, and whether the goods were therefore loaded in good condition. There is simply no admissible evidence to support the conclusion that-or raise a triable issue of fact as to whether-Evergreen loaded the solar panels in good condition.
FN2. The Survey was not presented to the Court as an expert opinion, and has not been accepted as such.
Thus, Hartford has not set forth any admissible evidence that the Court overlooked in determining that Hartford failed to raise a triable issue of fact. Plaintiff’s motion for reconsideration is denied.
CONCLUSION
For the aforementioned reasons, Hartford’s motion for reconsideration is DENIED. The Transportation & Logistics Council, Inc.’s motion for leave to file amicus curiae brief is DENIED.
The Clerk of the Court is directed to terminate the motions at Docket No. 50 and 52.
SO ORDERED:
