United States District Court, D. New Jersey
NATASHA FORD, individually and on behalf of her minor child C.F. Minor, Plaintiffs,
EF EXPLORE AMERICA, INC.; HOLIDAY CLARK, LLC; and U.S. SECURITY ASSOCIATES, INC., Defendants.
OPINION & ORDER
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 Osteomas Corp, 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.
standards governing a motion for reconsideration are well
settled. See generally D.N.J. Loc. Civ. R. 7.l(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. CIGNA
Reinsurance Co., 52 F.3d 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. l(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 Egloffv. New Jersey Air Nat'l 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. v. Choice Hotels Int% Inc., No.
7-cv-5938, 2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010)
(citing P. Schoenfeld Asset Mgmt. LLC v. Cendant
Corp., 161 F.Supp.2d 349, 352 (D.N.J. 2001)).
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 die
plaintiff refers to as "key witnesses," although
the basis for any such conclusion is not stated.
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 die
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.
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.
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.
not lose sight, moreover, of the fundamental principle that
it is primarily the interests of the nonsignatory
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.
reasons stated above, the motion for ...