Opinion
A05-86 CV (JWS), Re: Motion at Docket 21.
October 11, 2005
ORDER FROM CHAMBERS
I. MOTION PRESENTED
At docket 21, defendants move for reconsideration of the court's order at docket 19. The court has not requested a response to defendants' motion.
II. STANDARD OF REVIEW
Under District of Alaska Local Rule 59.1, a party may move the court to reconsider its non-appealable orders. The local rule does not provide criteria for when reconsideration is appropriate, but case law from within the Ninth Circuit does. Under that case law, reconsideration should be granted in three circumstances. First, upon the discovery of material facts that were previously unavailable or undiscoverable through reasonable diligence. Second, if the court overlooked material facts that were presented to it before it made its decision. Third, if there is a change in the law after the court's decision. A motion should not be granted if it simply repeats arguments advanced in pleadings that the court considered when it made its decision.
Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003).
Id.
Id.
Id.
III. DISCUSSION
Besides not arguing that any of the circumstances warranting reconsideration exist, there are three other problems with defendants' motion. Of those problems, the motion's first is that it mistakenly assumes that the court drew a distinction between the phrases "arising under" and "arising out of." The distinction that the court actually drew was between the phrases "arising under" and "relating to." In the Ninth Circuit, the phrase "relating to" encompasses a broader array of claims than the phrase "arising under." Because the forum selection clause in the parties' contract contains a phrase similar to "arising under," it covers relatively few kinds of claims.To the extent that the motion argues that the phrases "arising under" and "relating to" are equally expansive, its second problem is that it supports that proposition with decisions that rely on a policy that does not apply here. Those decisions cite the federal policy favoring arbitration to justify their extremely broad construction of arbitration clauses, to the point of implying that the phrases "arising under" and "relating to" cover the same claims. Because this case involves a typical forum selection clause and not an arbitration clause, which is a "specialized forum selection clause," the federal policy favoring arbitration does not apply. Consequently, it cannot be used to interpret "arising under" in the forum selection clause in the parties' contract to mean the same thing as "relating to."
See Battaglia v. McKendry, 233 F.3d 720, 724-27 (3d Cir. 2000); Gregory v. Electro-Mech. Corp., 83 F.3d 382, 384-86 (11th Cir. 1996).
Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n. 4 (citing Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974)).
This raises the question why the court relied on the Ninth Circuit's decision in Mediterranean Enterprises, Inc. v. Ssangyong Corp., which involved an arbitration clause. The reason is that an arbitration clause is, as discussed above, a type of forum selection clause, and the Mediterranean court's interpretation of the arbitration clause in that case was not influenced by the federal policy favoring arbitration. Thus, Mediterranean is an example of a text-based, as opposed to a policy-based, construction of a type of forum selection clause. For that reason, it is useful authority to follow when interpreting the forum selection clause in the parties' contract, which does not implicate the federal policy favoring arbitration.
708 F.2d 1458 (9th Cir. 1983).
The motion's third problem is that, even though there is controlling Ninth Circuit precedent, it relies on authority from other circuit courts. Those cases criticize the Second Circuit case that the Ninth Circuit relied on in Mediterranean. No matter what other circuits think of that case, In re Kinoshita Co., this court's only concern is what the Ninth Circuit thinks of it. In Mediterranean, the Ninth Circuit approved of Kinoshita and, as even the cases cited by defendants acknowledge, it continues to rely on that case.
287 F.2d 951 (2d Cir. 1961).
Battaglia, 233 F.3d at 727 (citing Ninth Circuit case after Mediterranean that also follows Kinoshita); Gregory, 83 F.3d at 385 (same).