The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On May 5, 2011 Defendant TA Operating LLC ("TA") moved for clarification or reconsideration of this Court's April 21, 2011 Opinion and Order pursuant to Local Rule 6.3. TA seeks clarification or reconsideration of "whether the Court held that TA's duty is a question of law for which it has reserved judgment until trial or whether the Court considers this determination to be a question for the jury." (TA's Mem. in Supp. at 1.) TA also seeks certification to the Second Circuit pursuant to 28 U.S.C. § 1292(b).
On June 7, 2011, Plaintiff Royal Sun Alliance Insurance, PLC ("RSA"), moved for a ruling "that the jury instructions on damages (i) be based on federal law and (ii) include a joint and several liability instruction pursuant to the Supremacy Clause of the United States Constitution." (Pl.'s Mot. at 1.)
While Defendant's and Plaintiff's motions involve distinct issues, in the interest of efficiency they are both decided herein.
The factual background giving rise to this case was set forth in detail in the Court's April 21, 2010 Opinion and Order, and familiarity with those facts is presumed.
To summarize briefly, this case arose out of two thefts of pharmaceuticals from truck stops operated by Defendant TA in 2008. Plaintiff Royal Sun Alliance ("RSA") insured the two cargo shipments, and on June 18, 2009 filed this cause of action accusing TA of negligence in conjunction with the May 6, 2008 theft of pharmaceuticals from TA's location in Antioch, Tennessee and the July 16, 2008 theft of pharmaceuticals from TA's location in Jeffersonville, Ohio. (Compl. ¶ ¶ 11, 16.) On October 15, 2010, TA moved for summary judgment, claiming, among other things, that RSA's negligence claims were barred because TA owed Plaintiff no duty of care under either Ohio or Tennessee law. In its April 21, 2010 Opinion deciding this summary judgment motion, this Court dismissed RSA's claims with regard to the July 2008 theft at TA Jeffersonville, holding that RSA failed to establish that that theft was foreseeable under Ohio law and therefore no duty was owed by TA. Conversely, the Opinion permitted RSA's negligence claims with regard to the March 2008 theft at TA Antioch to proceed, on finding that, under Tennessee law, TA did owe a duty to the owners of cargo that moved through its facilities to provide reasonable protection against foreseeable thefts.
I. Reconsideration and/or Clarification Under Local Rule 6.3
TA now requests, with regard to the Court's denial of summary judgment as to the Tennessee theft, "clarification and/or reconsideration of whether the Court held that TA's duty is a question of law for which it has reserved judgment until trial or whether the Court considers this determination to be a question for the jury." (Pl.'s Mem. in Supp. at 1.) TA also requests certification to the Second Circuit of the question of "whether the duty of a business owner to protect customers on its property from the foreseeable criminal acts of third parties should be expanded to include an additional class of plaintiffs, specifically a duty to protect customers of those customers, who themselves have never entered the subject property." (Id.)
For the reasons stated below, TA's motion for clarification is granted herein, while its motions for reconsideration and certification to the Second Circuit are denied.
Where "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," a motion for reconsideration is appropriate. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 617 F. Supp. 2d 216, 219 (S.D.N.Y. 2009). The "motion is not a vehicle for 'presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple."" Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). With respect to TA's motion for clarification, "clarification of a prior order is within the sound discretion of the Court." A.V. by Versace, Inc. v. Gianni Versace, S.p.A., 126 F. Supp. 2d 328, 334 (S.D.N.Y. 2001).
II. TA's Duty to Protect Plaintiff's Subrogors from Foreseeable Criminal Acts of Third Parties
In its brief in support of summary judgment, TA argued that RSA's negligence claims were legally barred for two reasons. First, TA argued that it categorically does not owe a duty of care to parties who are not its direct customers. Second, TA contended that the Tennessee theft at issue was not foreseeable, and that therefore it did not owe Plaintiff's subrogors a duty to protect against the theft under Tennessee law.
In the May 21 Opinion and Order, the Court held that TA owes a duty of reasonable care to the owners of cargo that is transported through its facilities, despite the fact that such owners are not direct customers of TA.*fn1 As the Court explained, "TA benefits from the movement of cargo bearing trucks in and out of its facilities, and knew that in the ordinary course of business, truckers carrying potentially valuable cargo would be likely to use the stop," and moreover that "TA was undoubtedly aware that the truck drivers using its facilities were being paid by the cargo's shipper or recipient, either of whom could be the cargo's owner at the time of the theft." (May 21, 2011 Opinion and Order at 9.) The Court then applied the general principal that a business has a duty to protect customers from foreseeable criminal acts, as set forth by the Tennessee Supreme Court in McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 902 (Tenn. 1996), to cover injured parties in a position such as Plaintiff; parties who are not direct customers, but are foreseeable victims and who indirectly confer a business benefit on the Defendant. By paying truckers to transport cargo, companies such as Plaintiff's subrogors provide Defendant with customers who will use the many services that TA's truck stops provide, and thereby generate profits for TA. TA was aware that its customers-interstate truck drivers-were patronizing TA's Antioch location, which is located just off of Interstate Highway 24, in conjunction with their duties as carriers of cargo belonging to third parties. ...