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Hovensa LLC v. Kristensons-Petroleum, Inc.

United States District Court, Second Circuit

May 16, 2013

HOVENSA LLC, Plaintiff,
KRISTENSONS-PETROLEUM, INC., Defendant/Third-Party Plaintiff,
OIL OVERSEAS S.A., Third-Party Defendant.

Geoffrey D. Ferrer, Esq., Christopher Raleigh, Esq., Cozen O'Connor, New York, NY, Counsel for Plaintiff.

Jeanne-Marie D. Van Hemmen, Esq., Josh Greco, Esq., Josh Parks, Esq., Betancourt, Van Hemmen, Greco & Kenyon LLC, Red Bank, N.J. Counsel for Defendants/Third-Party Plaintiff.

Scott R. Johnston, Esq., John G. Poles, Esq., Poles Tublin Stratakis & Gonzalez, LLP, New York, NY, Counsel for Third-Party Defendant.


SHIRA A. SCHEINDLIN, District Judge.


Third-party plaintiff Kristensons-Petroleum, Inc. ("KPI") moves for reconsideration of this Court's April 26, 2013 Opinion and Order ("Order") dismissing the Third Party Complaint against Oils Overseas S.A. ("OOSA") for lack of personal jurisdiction.[1] For the following reasons, the motion is denied.


Motions for reconsideration are goveitied by Local Rule 6.3 and are committed to the sound discretion of the district court.[2] "[R]econsideration will generally be denied 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.'"[3] "Typical grounds for reconsideration include an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'"[4] Yet, because "the purpose of Local Rule 6.3 is to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters, '"[5] the Rule must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court.[6] Specifically, "a motion for reconsideration is not a substitute for [an] appeal."[7]


KPI has not pointed to any points that the Court overlooked in its Order, or to any changes in the applicable law. Instead, its argument for reconsideration consists solely of untimely supplemental briefing. For this reason, it must be denied.

The sole basis advanced by KPI for asserting jurisdiction over third-party defendant Oil Overseas, S.A. ("OOSA") is Article 12(c) of KPl's "Standard Terms and Conditions of Sale of Marine Fuel" (the "KPI Terms"), which was incorporated in the purchase confirmation that KPI sent to OOSA when OOSA purchased fuel from it. Article 12(c) states:

All other disputes between [OOSA] and [KPI] not arising out of or relating to the quantity or quality of fuel delivered to or to be delivered hereunder shall be resolved in an action brought in the United States District Court for the Southern District of New York. However, if [OOSA], its agents, servants or assigns, the receiving vessel, her owners, charterers, or any other entity liable to [KPI] under this contract, or at law, are not available in the jurisdiction of New York for service of process, then [KPI] is free to bring suit against any or all of them in any jurisdiction where any or all of them may be found for purposes of service of process.[8]

The Order held that "[the] first clause [of Article 12(c)] establishes mandatory venue in the Southern District of New York, but its second clause conditions this venue on the existence of traditional indicia of personal jurisdiction when suit is brought by KPI.[9] The basis for this holding was that if the first clause evidenced OOSA s consent to personal jurisdiction in New York, there would be no reason to condition KPI's right to bring suit under the contract in any other jurisdiction based on a party's unavailability in New York for service of process.[10]

On reconsideration, KPI rehashes the argument that it previously made, namely that the first clause establishes mandatory venue, while "[t]he second sentence [] provides KPI with the power, at its option, to bring claims in another jurisdiction if a party is not available to be served with process in New York.'"[11] KPI cites to no controlling legal authority overlooked in the Order, and its additional argument falls well short of evidencing that the Court committed a manifest injustice.[12] The proper recourse for KPI is to appeal the Order. KPI's motion for reconsideration is denied. The Clerk of the Court is directed to close this motion (Doc. No. 27).


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