United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
M. FURMAN, UNITED STATES DISTRICT JUDGE.
Opinion and Order entered on November 28, 2017, familiarity
with which is assumed, this Court held that Article 35 of the
Montreal Convention - which provides that “[t]he right
to damages shall be extinguished if an action is not brought
within a period of two years” - does not apply to
claims for contribution and indemnification. See AGCS
Marine Ins. Co. v. Geodis Calberson Hungaria Logisztikai
KFT, No. 16-CV-9710 (JMF), 2017 WL 5891818 (S.D.N.Y.
Nov. 28, 2017) (Docket No. 59). On that basis, the Court
denied the motions of Third-Party Defendants El Al Israel
Airlines Ltd. (“El Al”), Alliance Ground
International, LLC (“Alliance”), and PAI Trucking
Corp. (“PAI”) to dismiss as time barred the
third-party claims for contribution and indemnification filed
by Defendant and Third-Party Plaintiff Geodis Calberson
Hungaria Logisztikai KFT (“Geodis”). Third-Party
Defendants now move for reconsideration or, in the
alternative, for certification of an interlocutory appeal
pursuant to Title 28, United States Code, Section 1292(b).
(Docket Nos. 63 and 69).
for reconsideration are governed principally by Federal Rule
of Civil Procedure 59(e) and Local Civil Rule 6.3, which are
meant 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.” Medisim Ltd. v. BestMed LLC, No.
10-CV-2463 (SAS), 2012 WL 1450420, at *1 (S.D.N.Y. Apr. 23,
2012) (citation and internal quotation marks omitted). The
major grounds justifying reconsideration are “an
intervening change in controlling law, the availability of
new evidence, or the need to correct a clear error or prevent
manifest injustice.” Virgin Atl. Airways, Ltd. v.
Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992) (citation and internal quotation marks omitted).
“It is well established that the rules permitting
motions for reconsideration must be narrowly construed and
strictly applied so as to avoid repetitive arguments on
issues that have been considered fully by the Court.”
SOHC, Inc. v. Zentis Food Sols. N. Am., LLC, No.
14-CV-2270 (JMF), 2014 WL 6603951, at *1 (S.D.N.Y. Nov. 20,
2014) (internal quotation marks and brackets omitted).
Indeed, a motion for reconsideration “is not a vehicle
for relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise
taking a second bite at the apple.” Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52
(2d Cir. 2012) (citation and internal quotation marks
omitted). Ultimately, a “district court has broad
discretion in determining whether to grant a motion”
for reconsideration. Baker v. Dorfman, 239 F.3d 415,
427 (2d Cir. 2000).
against those standards, Third-Party Defendants' motion
for reconsideration borders on frivolous for one simple
reason: The principal argument they make - that the Court
erred in treating Geodis as the “contracting
carrier” and El Al as the “actual carrier”
and, on that basis, looking to Chapter V of the Convention
(Docket No. 64 (“El Al Mem.”), at 3-13) - is not
an argument they made (or made with any clarity) on the first
go around. In its opposition to Third-Party
Defendants' motions to dismiss, Geodis repeatedly
referred to itself as the “contracting carrier, ”
(Docket No. 52, at 3, 5, 8, 10, 13), and argued that, as a
contracting carrier, its claims for contribution and
indemnification against Third-Party Defendants were governed
by Chapter V of the Montreal Convention, not Article 35.
(See Id. at 8-10). In their joint reply memorandum
of law, however, Third-Party Defendants did not respond to
those points, let alone give any indication that the
applicability of Chubb Insurance Co. of Europe S.A. v.
Menlo Worldwide Forwarding, Inc., 634 F.3d 1023 (9th
Cir. 2011) - the principal authority upon which Geodis relied
in its opposition (and upon which this Court ended up relying
in its November 28, 2017 Opinion and Order) - turned on
whether Geodis was a contracting carrier and El Al was the
actual carrier. (See Docket No. 57 (“Joint
Reply”), at 8-9). In fact, Third-Party Defendants
mentioned the terms “contracting carrier, ”
“actual carrier, ” and Chapter V only once,
quoting Article 40 of the Convention for the proposition that
“[i]f an actual carrier performs the whole or part of
carriage which . . . is governed by this Convention, both the
contracting carrier and the actual carrier shall, except as
otherwise provided in this Chapter, be subject to the rules
of this Convention.” (See Id. at
If anything, therefore, Third-Party Defendants accepted
Geodis's characterization of itself as a
“contracting carrier” and El Al as the
“actual carrier” and argued that the
characterizations did not matter - exactly the opposite of
what they argue now.
raising their new argument that Geodis does not qualify as a
“contracting carrier, ” Third-Party
Defendants' motion merely rehashes arguments that they
made in their initial motion papers: that Chubb was
wrongly decided and is distinguishable (compare El
Al Orig. Mem. 7; Joint Reply 8-9, with El Al Mem.
7-11; El Al Reply 5 n.4); that the Court should look to
precedent applying Article 29 of the Warsaw Convention
(compare El Al Orig. Mem 4-6; Joint Reply 2-3,
with El Al Mem. 15-18); and that the plain language
of the Montreal Convention requires dismissal
(compare Joint Reply 5-8, with El Al Mem.
12; El Al Reply 1, 4). The Court considered and rejected
these arguments in its November 28, 2017 Opinion and Order.
AGCS Marine Ins. Co., 2017 WL 5891818, at *3-4.
Third-Party Defendants' disagreement with the Court's
decision alone is not a basis for reconsideration. See,
e.g., Analytical Surveys, 684 F.3d at 52;
see also, e.g., Empire Merchants, LLC v.
Merinoff, No. 16-CV-9590 (JMF), 2018 WL 317848, at *2
(S.D.N.Y. Jan. 5, 2018) (denying a motion for reconsideration
on the ground that the moving parties were seeking “an
impermissible second bite at the apple”).
to authorize an interlocutory appeal is a closer question, if
only because all parties support certification, (El Al Mem.
21-25; Geodis Opp'n 10-11), and the applicability of
Article 35 of the Convention is an important issue upon which
only one other Court (the Ninth Circuit in Chubb)
has opined. Nevertheless, the Court concludes, with some
misgivings, that certification is inappropriate due to
Third-Party Defendants' failure to press the
carrier” argument until their motion for
reconsideration. Under Section 1292(b), a district court has
discretion to certify an order for interlocutory appeal if
the moving party shows that the order (1) “involves a
controlling question of law”; (2) “there is
substantial ground for difference of opinion”; and (3)
“an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” 28
U.S.C. § 1292(b); see, e.g., Atlantica
Holdings, Inc. v. Sovereign Wealth Fund Samruk-Kazyna
JSC, No. 12-CV-8852 (JMF), 2014 WL 1881075, at *1
(S.D.N.Y. May 9, 2014). Had Third-Party Defendants properly
raised the “contracting carrier”/“actual
carrier” argument in their initial motion papers, those
requirements might well have been met here. But in light of
their failure to do so, they fail to meet two of the
conditions for certification of an interlocutory appeal.
the order (really, orders - plural - as the appeal
would have to be taken from this Order as well) does not
involve a pure issue of law. Instead, the Court of Appeals
would have to review the record to determine if Third-Party
Defendants waived the “contracting
carrier”/“actual carrier” argument.
See, e.g., Pratt v. Hometown Fin., Inc.,
99-13888-FJO-7, 2002 WL 1046702, at *1 (S.D. Ind. May 14,
2002) (noting that the determination of whether an argument
was waived was not “something the court of appeals
could decide quickly and cleanly without having to study the
record” and, thus, that a related order was “not
a proper subject for certification” of an interlocutory
appeal (citation and internal quotation marks omitted)).
Second, the posture makes it less likely that an immediate
appeal would materially advance the ultimate termination of
the litigation. If the Second Circuit were to agree with this
Court's determination that Third-Party Defendants waived
the “contracting carrier”/“actual
carrier” argument, it might well decline to take the
appeal. See, e.g., Smith v. Laddin, 424
B.R. 529, 537 (N.D. Ala. 2010) (noting an appellate court
would likely decline interlocutory review where an argument
was not raised in the court below). Alternatively, it might
take the appeal and then decide not to reach the ultimate
issue in light of the less-than-ideal record in this case.
See, e.g., United States v. Caremark, Inc.,
634 F.3d 808, 811 n.1 (5th Cir. 2011) (“[W]here an
issue is not fully developed in the district court, we may
decline to reach it [on interlocutory appeal].”);
Hendricks & Lewis PLLC v. Clinton, 766 F.3d 991,
998-99 (9th Cir. 2014) (refusing to consider on interlocutory
review an argument raised for the first time in
defendant's motion for reconsideration); Forras v.
Andros, 184 F.App'x 33, 35 (2d Cir. 2006) (declining
to address on interlocutory review several issues that were
not raised before the district court). In either case, the
only effect of certification would be delay.
reasons stated above, Third-Party Defendants' motion for
reconsideration or, in the alternative, for certification of
an interlocutory appeal pursuant to Section 1292(b) is
DENIED. The Clerk of the Court is directed to terminate
Docket Nos. 63 and 69.
 In light of that, the Court need not
and does not consider Third-Party Defendants' argument on
the merits. The Court notes, however, that there is
substantial authority supporting the conclusion that Geodis
qualifies as a “contracting carrier” for purposes
of the Convention. (See Docket No. 71 (“Geodis
Opp'n”), at 4-7 (citing cases)). El Al more or less
concedes as much in its reply memorandum of law.
(See Docket No. 72 (“El Al Reply”), at 5
(criticizing Geodis's authorities as inapposite and
 That is once more than in El Al's
opening memorandum of law, where the words “actual
carrier, ” “contracting carrier, ” and
“Chapter V” did not appear at all. (See
Docket No. 45 (“El Al Orig. Mem.”)).
 Third-Party Defendants Alliance and
PAI went even further, explicitly arguing in their
supplemental memorandum of law in support of the motions to
dismiss that “it is not disputed that Geodis is an
indirect air carrier.” (Docket No. 48, at 7). They also
argued, for purposes of the Montreal Convention, “the
period of ‘carriage by air'” included not
only the time when the goods at issue were being flown by El
Al, but also the time when they were transported on land by
PAI. (Id. at 7-8). Conspicuously, PAI does not join
the motion ...