1

10-414

National Union Fire Insurance v. Las Vegas Professional Football

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY

PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 20 day of December, two thousand ten, th

Present: ROSEMARY S. POOLER,

BARRINGTON D. PARKER,

RICHARD C. WESLEY,

Circuit Judges.

_____________________________________________________

NATIONAL UNION FIRE INSURANCE COMPANY

OF PITTSBURGH, PA,

Petitioner-Appellee,

 -v- 10-414-cv

LAS VEGAS PROFESSIONAL FOOTBALL LIMITED 

PARTNERSHIP D/B/A LAS VEGAS GLADIATORS,

Respondent-Appellant.

 

Appearing for Appellee: Michael S. Davis (Anthony I. Giacobbe, Jr., on the brief), Zeichner

Ellman & Krause LLP, New York, N.Y.

 

Appearing for Appellant: James L. Ferraro, The Ferraro Law Firm, Miami, Florida.
2

Appeal from the United States District Court for the Southern District of New York 

(Castel, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

Las Vegas Professional Football Limited Partnership, d/b/a Las Vegas Gladiators (the

“Gladiators”) appeal from the January 15, 2010 memorandum and order of the United States

District Court for the Southern District of New York (Castel, J.) denying the Gladiators’ motion

for reconsideration of the district court’s prior decision, dated November 17, 2009, which granted

the motion to compel arbitration brought by American International Group Inc. (“AIG”), the

parent company of the National Union Fire Insurance Company of Pittsburgh, PA. We assume

the parties’ familiarity with the underlying facts, procedural history, and specification of issues

for review.

The Gladiators, a professional football team in the Arena Football League, purchased

workers’ compensation insurance from the plaintiff. The agreement between the parties includes

(a) the Payment Agreement; (b) an Addendum to the Payment Agreement; (c) a large risk rating

plan endorsement; and (d) a workers’ compensation policy. 

All of the documents that make up the agreement between the parties were effective from

December 15, 2006 to December 15, 2007. However, the original agreement between the parties

included only the workers’ compensation policy, which did not contain an arbitration provision. 

The Gladiators allege that three weeks after the start of the 2006 arena football season, AIG

required the Gladiators to provide $600,000 in collateral and sign the Payment Agreement, which

contained the arbitration clauses at issue here. The Gladiators allege they had no choice but to

sign, as they could not field a team without the requisite insurance coverage, thus risking the

entire arena football season. The Gladiators signed the Payment Agreement on February 8, 2007,

with the effective date going back to December 15, 2006. 

The Payment Agreement provides in relevant part that if the Gladiators dispute any

amount owed National, they must inform AIG/National of the dispute in writing, and National

will respond. Disputed “items not resolved within 60 days after our [National’s] response to

Your [the Gladiators’] written particulars must immediately be submitted to arbitration as set

forth below.” A second subsection relates to “disputes other than disputes about payment due,”

and states: “Any other unresolved dispute arising out of this Agreement must be submitted to

arbitration. You must notify us in writing as soon as You have submitted a dispute to arbitration.

We must notify You in writing as soon as we have submitted a dispute to arbitration.” Under

the section addressing arbitration procedures, the Payment Agreement provides that the

arbitrators “will have exclusive jurisdiction over the entire matter in dispute, including any

question as to its arbitrability.” 

The Addendum to the Payment Agreement contains a forum selection clause that
3

provides: “any action or proceeding concerning arbitrability, including motions to compel or to

stay arbitration, may be brought only in court [] of competent jurisdiction in the City, County,

and State of New York.” 

On January 29, 2009, the Gladiators, upset over a billing dispute, filed a complaint

seeking injunctive relief and a declaratory judgment in the United States District Court for the

Southern District of Florida, seeking to clarify the parties’ rights and obligations under a

workers’ compensation and employers’ liability insurance policy. 

 On August 26, 2009, National served the Gladiators with a demand for arbitration. The next

day, National filed a petition to compel arbitration in the United States District Court for the

Southern District of New York. On August 27, 2009, the district court issued an order to show

cause as to why the petition to compel not be granted, and as to why the action should not be

transferred to the district court in Florida. On August 28, 2009, AIG filed a motion to dismiss

the Florida complaint on the grounds that the agreement between the parties called for

arbitration. 

On November 17, 2009, the district court ordered the parties to proceed to arbitration

based on the arbitration clause contained in the Payment Agreement. On December 2, 2009, the

Gladiators filed a motion for reconsideration, which the district court denied on the grounds that

the Gladiators raised only arguments in their motion for reconsideration that could have, and

should have, been raised earlier. 

The problem for the Gladiators is a simple one: they did not raise their challenge to the

enforceability of the arbitration clauses in their original opposition to the motion to compel. In

their original motion, the Gladiators argued that the claims asserted in its Florida complaint arose

only under the Policy, and thus were not subject to the arbitration clause contained in the

Payment Agreement. The district court properly found all the claims were covered by the

arbitration clauses and on appeal the Gladiators do not contest that ruling. 

Instead, on appeal, the Gladiators argue that the arbitration clause is unconscionable and

should not be enforced. The Gladiators argue that, by waiting until after the start of the arena

football season, National unconscionably forced the Gladiators to relinquish their right to

prosecute their claims in court, rather than through arbitration. By way of explanation, the

Gladiators told the district court they did not raise the unconscionability issue “in an effort to

avoid duplicity [sic] and conserve judicial resources,” as its claims of “duress and

unconscionability that had been asserted before the Florida Court.” 

 The district court properly determined that the argument was not properly raised for the

first time on a motion for reconsideration, and deemed it waived - a finding we affirm. It is black

letter law that a “motion for reconsideration may not be used to advance new facts, issues or

arguments not previously presented to the Court, nor may it be used as a vehicle for relitigating

issues already decided by the Court.” Davidson v. Scully, 172 F. Supp. 2d 458, 461 (S.D.N.Y.
4

2001) citing Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). 

The district court also properly determined that the first filed rule did not apply. “Where

there are two competing lawsuits, the first suit should have priority, absent the showing of

balance of convenience in favor of the second action, or unless there are special circumstances

which justify giving priority to the second.” Motion Picture Lab. Technicians Local 780,

I.A.T.S.E. v. McGregor & Werner, Inc., 804 F.2d 16, 19 (2d Cir. 1986) (citation and quotation

omitted). Forum shopping is one of those special circumstances. Id.; see also New York Marine

and Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 113 (New York choice of law clause

and Southern District of New York forum selection clause favor disregarding first-filed rule). 

Here, the Payment Addendum contains a forum clause providing that “any action or proceeding

concerning arbitrability, including motions to compel or stay arbitration, may be brought only in

a court of competent jurisdiction in the City, County and State of New York.” Thus, the district

court rightly concluded that the proper venue for any action involving the arbitrability of the

agreement was in New York, because it is what the parties agreed to. There is no error.

We have considered the remainder of the Gladiators’ arguments and find them to be

without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk