J. RANDAL HALL, District Judge.
Presently before the Court is Plaintiff Gold Cross EMS, Inc.'s ("Gold Cross") Motion for Reconsideration (doc. 62) following this Court's Order (doc. 61) granting, in part, Defendant The Children's Hospital of Alabama's ("CHOA") Motion for Summary Judgment. In the alternative, Gold Cross asks the Court to either certify the question to the Supreme Court of Georgia or certify that the issue warrants immediate interlocutory review by the Eleventh Circuit Court of Appeals. The facts giving rise to this dispute were fully set forth in the Court's Order on the summary judgment motion and so the Court does not restate them here. For the reasons stated herein, the Court
Pursuant to Federal Rule of Civil Procedure 59(e), a party may seek to alter or amend a judgment in a civil case within twenty-eight days after the entry of the judgment. "[R]econsideration of a previous order is `an extraordinary remedy, to be employed sparingly.'" Williams v. Cruise Ships Catering & Serv. Int'l, N.V., 320 F.Supp.2d 1347, 1358 (S.D.Fla.2004) (citation omitted). In fact, a motion for reconsideration is not an appeal, and thus it is improper on a motion for reconsideration to "ask the Court to rethink what it ha[s] already thought through — rightly or wrongly." Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983), quoted in Weitz Co. v. Transp. Ins. Co., No. 08-23183, 2009 WL 1636125, at *1 (S.D.Fla. June 11, 2009) and Vidinliev v. Carey Int'l, Inc., No. 1:07-cv-762, 2008 WL 5459335, at *1 (N.D.Ga. Dec. 15, 2008). A movant must "set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294, 294 (M.D.Fla.1993) (citation omitted).
Although Rule 59(e) does not set forth the grounds for relief, district courts in this Circuit have identified three that merit reconsideration of an order: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See, e.g., Ctr. for Biological Diversity v. Hamilton, 385 F.Supp.2d 1330, 1337 (N.D.Ga.2005); Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.Fla.1994).
Gold Cross moves for reconsideration based on a need to correct clear error or prevent manifest injustice. "A motion to reconsider is properly brought to correct a clear error in the court's interpretation of either the facts or the law. It should be used in order to prevent manifest injustice, however it is an extreme measure, and substantial discretion rests with the court in granting such a motion." Medley v. Westpoint Stevens, Inc., 162 F.R.D. 697, 698 (M.D.Ala.1995) (internal citations omitted). "This ordinarily requires a showing of `clear and obvious error where the interests of justice demand correction.'" McGuire v. Ryland Grp., Inc., 497 F.Supp.2d 1356, 1358 (M.D.Fla.2007) (quoting Prudential Sec., Inc. v. Emerson, 919 F.Supp. 415, 417 (M.D.Fla.1996)). "An error is not `clear and obvious' if the legal issues are `at least arguable.'" United States v. Battle, 272 F.Supp.2d 1354, 1358 (N.D.Ga.2003) (quoting Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir.1985)).
To support its claim of clear error, Gold Cross first argues that a case relied upon by CHOA and the Court, Gay v. Piggly Wiggly S., 183 Ga.App. 175, 358 S.E.2d 468 (1987), actually supports a contrary result. However, the Piggly Wiggly court addressed both a factually and legally distinguishable issue. In Piggly Wiggly, the plaintiff was injured by the driver of a Piggly Wiggly truck. Id. at 469. Following that injury, the plaintiff purportedly received negligent care from two doctors and an individual employed by Physical Therapy Associates, Inc. ("PTA"). Id. at 470. The appeal, which addressed appropriate venue, centered on whether the defendants were successive rather than joint tortfeasors. Id. The trial court held that Piggly Wiggly was the original tortfeasor and PTA the successive. Id. For that reason, the court transferred the Piggly Wiggly portion of the action to another county. Id. The appellants argued that the driver and doctors, as well as their respective employers, were joint tortfeasors making the original venue appropriate. In addressing the respective relationships between the tortfeasors, the Georgia Court of Appeals posed the following two options as to their employers:
Id. at 471.
Gold Cross focuses its attention on this quote and argues that the Court committed clear error by not relying on it for its conclusion on the contribution issue. The Court disagrees. Factually, this Court was presented with a single hospital that contracted with an ambulance service which then selected its drivers. In contrast, the Piggly Wiggly court was presented with two distinct sets of employees and employers. To put the distinction into visual terms, the relationship between the Piggly Wiggly entities (two employers and their two employees) forms a square. In the case at bar, the relationship is more akin to a straight line: CHOA hired Gold Cross and Gold Cross in turn selected its drivers.
As quoted above, the Piggly Wiggly court presented two options. If the employees were considered joint tortfeasors amongst each other, then their employers could be vicarious joint tortfeasors. If the employees were not joint tortfeasors amongst each other, then their employers would not be either. The legal significance of these two options, however, is materially impacted by the language that precedes the court's presentation of them:
Id. (internal quotation marks omitted) (emphasis added). The law stated in Piggly Wiggly applies to appropriate venue. Indeed, the court expressly recognized that when addressing venue, the courts may expand the traditional joint tortfeasor doctrine to consider vicarious joint tortfeasors. Expanding the definition as it applies to venue makes sense, as the plaintiff's selection of forum will necessarily occur prior to any discovery on the merits of a joint tortfeasor relationship. Importantly, however, the Piggly Wiggly court did not hold that "vicarious joint tortfeasors" are liable amongst each other for contribution, as that issue was not before the court.
As Gold Cross recognizes — and takes issue with — this Court relied only on a limited portion of Piggly Wiggly. The Court quoted the following language: "[A] negligent employee and his vicariously liable employer are not `joint tortfeasors' in the classic sense, in that the employer has committed no separate and distinct act of negligence and the employee has no right of contribution against his employer." Id. The Court did not engage in a factual comparison of Piggly Wiggly and the instant case, as no such comparison logically exists. Instead, the Court simply quoted the above-referenced sentence and cited a number of other cases supporting the same proposition. Gold Cross contends that this rule is inapplicable to the present facts, as it did "not seek contribution from [CHOA] based on an employer/employee relationship" given that "an `employee,' virtually by definition, is a natural person." (Doc. 62-1 at 5 (citing Black's Law Dictionary and Merriam-Webster Dictionary).) The Court does not find Gold Cross's extremely restrictive definition of employee persuasive. Indeed, Gold Cross does not cite any authority to support the proposition that one company cannot hire another. To the contrary, in many contexts courts recognize companies as people. See, e.g., Nina Totenberg, When Companies Become
Next, Gold Cross directs the Court to two Restatement sections: (1) the Restatement (First) of Restitution and (2) the Restatement (Second) of Agency. As a preliminary matter, neither of these sections have been adopted or cited by Georgia courts. And although Gold Cross argues that because "[n]othing cited by [CHOA] or the Court demonstrates that these principles have been rejected by Georgia courts[,]" (doc. 62-1 at 7), such lack of explicit rejection does not convert an otherwise unutilized Restatement into accepted Georgia law, much less support an argument that the Court committed clear error by not relying on it.
In any event, the Court finds these sections inapplicable to the facts presented. As to the Restatement (First) of Restitution, the cited section provides as follows:
RESTATEMENT (FIRST) OF RESTITUTION § 99 (1937). To clarify the scope of this section, the following two examples are provided:
Id. In each of these situations, two or more entities contract with and hire another. Thus, to apply to the instant case, Gold Cross must allege that Gold Cross and CHOA contracted to employ Mims and Johnson. Regardless of how Gold Cross now wishes to characterize the relationship, the record supports a conclusion that CHOA contracted with Gold Cross for ambulatory services. No evidence shows that CHOA had any part in determining which Gold Cross employees would drive the ambulance. The present situation is thus more akin to a company that contracts for janitorial services, for example. There, as here, Company A would contract with Company B, who would then assign the work to one or more of its employees. Thus, the present case falls outside the scope of Restatement § 99.
Addressing the Restatement (Second) of Agency, the cited section states as follows:
RESTATEMENT (SECOND) OF AGENCY § 317A(1) (1958). To support application of this section to the present facts, Gold Cross cites (1) the above language; (2) a case out of the Court of Common Pleas in Pennsylvania holding that co-employers are jointly and severally liable for the actions of a joint employee and thus subject to contribution, (3) this Court's Order and other Georgia case law holding that one may be the servant of two masters, and (4) an Eleventh Circuit Court of Appeals case addressing contribution between a hospital and its wholly-owned subsidiary. None of these citations give rise to clear error sufficient to support reconsideration.
Turning first to the Restatement section quoted above, which again has never been cited with approval by Georgia courts,
Gold Cross additionally cites a Pennsylvania case for the proposition that co-employers are jointly and severally liable to plaintiff to the extent of the joint employee's liability. See Sleasman v. Brooks, 32 Pa. D. & C. 3d 187, 195 (1984). Even assuming this case is consistent with Georgia law, Gold Cross again presents no argument as to its application in this case.
Next, Gold Cross cites case law from Georgia that one may be the servant of two masters. The Court does not disagree with this statement of the law, but Gold Cross already argued this point in its summary judgment briefing. Seeking to relitigate the matter is inappropriate on a motion for reconsideration.
Finally, Gold Cross cites a case out of the Eleventh Circuit Court of Appeals for the proposition that multiple employers of a negligent employee can be joint tortfeasors. Columbus Reg'l Healthcare Sys., Inc. v. Beck, No. 06-13444, 2006 WL 3406543 (11th Cir.2006) (per curiam). The Eleventh Circuit case, however, is clearly distinguishable as it addressed a contribution issue in a medical malpractice case where the doctors and nurses were employees of both a hospital and a medical center. Id. at *1. There, the court had to determine whether the two entities should be considered one for contribution purposes in light of the fact that the medical center was a wholly-owned subsidiary of the hospital. Id. Stated differently, the issue before the court was "whether the same party is being held liable twice for the same set of acts." Id. At no point did the court address the relationship between the employers and the employees, as the nature of that relationship was undisputed.
In sum, Gold Cross's presentation of authority in brief does not demonstrate clear error in the Court's ruling.
Alternatively, Gold Cross asks the Court to certify the issue to the Georgia Supreme Court. Georgia law authorizes district courts to certify questions of state law to the Georgia Supreme Court if "there are no clear controlling precedents in the decisions[.]" O.C.G.A. § 15-2-9(a). Certification is not obligatory, however, and "[i]ts use in a given case rests in the sound discretion of the federal court." Lehman Bros. v. Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974). In this regard, the Eleventh Circuit's
City of Rome v. Hotels.com, L.P., 549 Fed. Appx. 896, 904 (11th Cir.2013) (quoting Escareno v. Noltina Crucible & Refractory Corp., 139 F.3d 1456, 1461 (11th Cir.1998)).
To support its contention that the Court's conclusion was merely conjectural, Gold Cross relies on the same arguments it presented in support of reconsideration — that the Court improperly applied Piggly Wiggly and that the Restatement provisions dictate a contrary result. Gold Cross maintains that because "[n]either [CHOA] nor the Court has identified any controlling precedent that rejects the principles
Gold Cross finally asks this Court to include a certification under 28 U.S.C. § 1292 that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that immediate appeal from the order may materially advance the ultimate termination of the litigation." In enacting this section, Congress clearly intended for it to be used sparingly and "only in exceptional cases where a decision of the appeal may avoid protracted and expensive litigation, as in antitrust and similar protracted cases, where a question which would be dispositive of the litigation is raised and there is serious doubt as to how it should be decided [.]" S.Rep. No. 85-2434, reprinted in 1958 U.S.C.C.A.N. 5255, 5260. Indeed, interlocutory review is not intended where there exists a "mere question as to the correctness of the ruling[.]" Id.
For all of the reasons described above, both in reference to the motion for reconsideration and the request for certification to the Georgia Supreme Court, the Court finds that interlocutory review under § 1292 is not warranted in this matter.
Based on the foregoing, Gold Cross's Motion for Reconsideration (Doc. 62) is hereby
477 F.Supp.2d 1272, 1274-75 (S.D.Ga.2007).