The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
This matter appears on a motion for reargument filed pursuant to District Court of New Jersey Local Civil Rule 7.1(g) by defendants Spruce Maritime S.A. ("Spruce Maritime"), and The Sanko Marine Co., Ltd. ("Sanko Marine") (collectively, "defendants"). Defendants object to this Court's order entered July 20, 1998, and challenge the decision to enforce the forum selection clause in this case only as to plaintiff Union Steel America Co.'s ("Union Steel") cause of action against defendant Yukong Line Limited ("Yukong"). Defendants continue to argue that Union Steel also must sue them in the selected forum, even though they were not parties to the bills of lading containing the forum selection clause. *fn1 For the reasons that follow, this Court will deny the motion for reargument.
"The standard of review involved in a motion for reargument is quite high, and therefore relief under this rule is granted very sparingly." United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994); accord Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J. 1986). A party seeking reconsideration must show more than a disagreement with the court's decision. "[R]ecapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." Carteret Savings Bank, S.A. v. Shushan, 721 F.Supp. 705, 709 (D.N.J. 1989), modified on other grounds, 919 F.2d 225 (3rd Cir. 1990); see also Pelham v. United States, 661 F.Supp. 1063, 1065 (D.N.J. 1987); Maldonado, 636 F.Supp. at 630; Lite, N.J. Federal Practice Rules 7.1(g), comment 8(c). Thus, the district court will deny a motion for reconsideration where the plaintiff fails to "provide the court with any pertinent case law or fact which th[e] court may have overlooked." Egloff v. New Jersey Air Nat'l Guard, 684 F.Supp. 1275, 1279 (D.N.J. 1988).
A. The Basis for the Instant Motion
The forum selection clause in this case provides that "any dispute arising under this bill of lading shall be decided in the country where the Carrier has his principal place of business." Defendants contend that this Court "overlooked" authorities they cited in their briefs when it decided that only Yukong Line, as a contracting party, could enforce the forum selection clause.
In its briefs, Union Steel argued that defendants' liability under the Carriage of Goods by Sea Act, 46 U.S.C.App. §§ 1300-1315 ("COGSA"), will be reduced under Korean law because it will not recognize Spruce Maritime and Sanko Marine as carriers, and that its tort claims against those parties do not "arise under" the bills of lading. These arguments raised the collateral question of whether, as a general matter, claims against non-parties to the bills of lading must be brought in the chosen forum.
This question was addressed in part by defendants where they argued that the phrase "any dispute" shows that one need not be a carrier to invoke the clause; this portion of their argument contained no citations. Defs. Rep. Br. at 26. Defendants also pointed to the facts of two cases to show that non-parties have benefitted from forum selection clauses. Id. The cases this Court is reported to have "overlooked" were not cited in this portion of the discussion. Where they were cited, it was not for any discussions of the instant issue. As in their instant brief, defendants cited the "overlooked" cases not for any discussions of applicable law, but only to show that non-parties to bills of lading successfully have invoked forum selection clauses (apparently, in part, because no one in those cases questioned their ability to do so). The cases defendants now cite for legal standards supporting their position are cases which appeared nowhere in their prior briefing.
In short, defendants' claim that this Court "overlooked" a number of cases they had cited is incorrect and somewhat disingenuous. Nonetheless, since this Court's consideration of the issue sub judice was to some degree sua sponte, *fn2 since defendants now cite additional pertinent authorities, and in light of the specter of litigation in two countries with its attendant expense and risk of inconsistent results, this Court has given the issues presented at this stage of the case another searching review.
B. Enforcement of the Forum Selection Clause as to Sanko Marine and Spruce Maritime
There are two issues. First, do Sanko Marine and Spruce Maritime have the right to invoke the forum selection clause? Second, do Yukong Line's rights under the forum selection clause include the right to compel Union Steel to sue these defendants in the chosen forum? While the inquiries might overlap to some degree, these two questions present different issues. One goes at base to the scope of the forum selection clause, while the other goes to the question of who may invoke it. This Court finds the issues involved to be difficult and subtle.
Ultimately, however, this Court need not resolve these issues. For at this stage in the litigation, this Court cannot be certain that plaintiff's COGSA rights will be protected in the event that this Court dismisses Union Steel's claims. This uncertainty arises from an issue left unresolved in this Court's July 20 opinion: whether a Korean court ...