Inetianbor v. Cashcall, Inc.

Citation962 F.Supp.2d 1303
Decision Date19 August 2013
Docket NumberCase No. 13–60066–CIV.
PartiesAbraham INETIANBOR, Plaintiff, v. CASHCALL, INC., Defendant.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

OPINION TEXT STARTS HERE

Aaron Goss, John S. Hughes, Mona Lisa Wallace, Cathy Anne Williams, Wallace & Graham, P.A., Salisbury, NC, Brian William Warwick, Varnell & Warwick PA, The Villages, FL, for Plaintiff.

Andrew Mikel Shapiro, Stacy Jaye Rodriguez, Christopher Stephen Carver, Akerman Senterfitt, Miami, FL, for Defendant.

ORDER GRANTING PLAINTIFF'S RENEWED MOTION FOR COURT TO RECONSIDER ITS ORDER REQUIRING ARBITRATION

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court upon Plaintiff's Renewed Motion for Court to Reconsider Its Order Requiring Arbitration [DE 72]. The Court has considered the motion, Defendant's response [DE 81], Plaintiff's reply [DE 86], the representations of counsel at the August 16, 2013 hearing, the record in this case, and is otherwise fully advised in the premises.

I. BACKGROUND

On January 5, 2011, Plaintiff Abraham Inetianbor entered into a consumer loan agreement with Western Sky Financial, LLC (“Western Sky”), for $2,525.00, with an annual interest rate of 135%. DE 16–2 at 3–4. Defendant CashCall, Inc. (CashCall), is the servicer, handler, and collector on the loan. DE 16 at 2. Plaintiff claims that he has paid off the loan in full, but that CashCall has continued to report to credit bureaus that he has upcoming or late payments. DE 1–3 at 2. On July 12, 2012, Plaintiff brought suit in the Seventeenth Judicial Circuit Court, Broward County, Florida, alleging that CashCall had defamed Plaintiff's character by misrepresenting his creditworthiness to credit reporting agencies. See DE 1–2 at 3–4. On December 17, 2012, Plaintiff filed an Amended Complaint in state court. CashCall then removed the action to this Court on January 11, 2013. DE 1 at 2–3.

The subject loan agreement requires that all disputes arising out of the agreement “be resolved by Arbitration, which shall be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement.” DE 16–2 at 5. The agreement further provides that

Arbitration shall be conducted in the Cheyenne River Sioux Tribal Nation by your choice of either (i) a Tribal Elder, or (ii) a panel of three (3) members of the Tribal Council, and shall be conducted in accordance with the Cheyenne River Sioux Tribal Nation's consumer dispute rules and the terms of this Agreement .... The party receiving notice of Arbitration will respond in writing by certified mail return receipt requested within twenty (20) days. You understand that if you demand Arbitration, you must inform us of your demand of the Arbitrator you have selected. You also understand that if you fail to notify us, then we have the right to select the Arbitrator.

Id. at 6. Accordingly, on January 24, 2013, CashCall filed a Motion to Compel Arbitration and Dismiss or Stay Case [DE 16]. On February 15, 2013, the Court issued an Order (February 15 Order”) granting the motion to compel, and directing the parties to submit the claims to arbitration. See923 F.Supp.2d 1358, 1363–64 (S.D.Fla.2013).

Then, on March 12, 2013, Plaintiff filed a Motion to Reopen Case [DE 37], in which he advised the Court that, subsequent to the February 15 Order, he attempted to submit the case for arbitration to the Cheyenne River Sioux Tribal Nation (“the Tribe”). However, the Tribe, through Judge Mona R. Demery, responded with a letter dated March 8, 2013, stating that “the Cheyenne River Sioux Tribe ... does not authorize Arbitration as defined by the American Arbitration Association (“AAA”) here on the Cheyenne River Sioux Reservation located in Eagle Butte, SD 57625.” DE 37 at 5. Plaintiff argued that arbitration before the designated forum was unavailable, and requested that the Court reopen the case. CashCall responded that arbitration could still be conducted by Tribe members on the reservation, but failed to clarify how this contention was consistent with the letter from the Tribal court. See DE 39. The Court determined that the arbitral forum designated in the loan agreement was unavailable, and that the choice of forum was integral to the agreement to arbitrate. Thus, the Court found that the arbitration agreement failed, and reopened the case. SeeDE 45 (“April 1 Order”), 2013 WL 1325327.

Subsequently, CashCall served a Demand for Arbitration [DE 53–1] requesting that arbitration be conducted before a Tribal Elder. See DE 53–1, DE 53 at 1–2. Then, on April 23, 2013, CashCall filed a Renewed Motion to Compel Arbitration and Dismiss or Stay Case [DE 53] (“Renewed Motion to Compel), arguing that the arbitral forum was in fact available. CashCall attached a letter from Robert Chasing Hawk, Sr., a Tribal Elder of the Cheyenne River Sioux Tribal Nation, stating that he agreed to serve as arbitrator for the case, and that he [has] no preexisting relationship with either party in this case.” See DE 57–1. CashCall also submitted a letter from Judge Demery, dated April 4, 2013, in which she stated that:

The [Tribal] Court does not provide arbitration. Arbitration, as in a contractual agreement, is permissible. However, the Court does not involve itself in the hiring of the arbitrator or setting dates or time for the parties. After there is an arbitration award, the parties may seek to confirm the award in Tribal Court.

DE 53–3 at 2. Based on this evidence, the Court determined that the forum was available, and granted the Renewed Motion to Compel on May 17, 2013. SeeDE 59 (“May 17 Order”), 2013 WL 2156836.

On May 21, 2013, Plaintiff filed a Motion to Reconsider and Report Regarding the Status of the Case [DE 61] and a Motion to Reopen Case [DE 62], each asking the Court to reconsider the May 17 Order compelling arbitration. As grounds for relief, Plaintiff asserted that he had uncovered two new pieces of evidence indicating that Mr. Chasing Hawk is biased toward CashCall. First, Plaintiff claimed that Mr. Chasing Hawk's daughter, Shannon Chasing Hawk, is employed by Western Sky. Plaintiff attached a printout of Ms. Chasing Hawk's Facebook profile page, listing “Western Sky Financial” as her employer. See DE 61 at 9. Second, Plaintiff alleged that CashCall and Mr. Chasing Hawk colluded in the initiation of arbitration proceedings. Plaintiff attached a purported email chain between Mr. Chasing Hawk and an employee of Lakota Cash, LLC (“Lakota Cash”), a subsidiary of Western Sky, showing that Lakota Cash prepared the letter for Mr. Chasing Hawk. See id. at 7–8. The Court denied reconsideration, finding that:

[I]t is well-established that “reviews [of an arbitrator's alleged bias] are confined under the [FAA] to judicial decisions to confirm, modify, or vacate an arbitration award after a final arbitration decision has been made.” Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 203 F.R.D. 677, 687 (S.D.Fla.2001) (emphasis in original); see also Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d 376 [476], 490 (5th Cir.2002) (holding that “where arbitrator bias is at issue, the FAA does not provide for removal of an arbitrator from service prior to an award, but only for potential vacatur of any award.”). Indeed, the section of the FAA cited by Plaintiff, § 10(a), provides the grounds for vacating an arbitration award, not for avoiding arbitration altogether. See9 U.S.C. § 10(a). Accordingly, Plaintiff's bias argument is not relevant to whether arbitration was properly compelled. Rather, this argument is more properly raised on a motion to confirm, modify, or vacate an award after the parties have completed arbitration.

DE 70 at 6–7.

On July 16, 2013, Plaintiff filed the instant motion, asserting numerous grounds for reconsideration of the May 17 Order. CashCall opposes the motion.

II. RECONSIDERATION STANDARD

The May 17 Order was not a final order. Therefore, pursuant to Federal Rule of Civil Procedure 54(b), it is subject to revision at any time before the entry of a final judgment. SeeFed.R.Civ.P. 54(b); Coty Inc. v. C Lenu, Inc., Case. No. 04–20073–CIV, 2007 WL 4699017 at *1, 2007 U.S. Dist. LEXIS 95914, at *3 (S.D.Fla. Oct.11, 2007) (“A district court, in its discretion, can modify or vacate a non-final order at any point prior to the entry of a final judgment.”). While Rule 54(b) does not specify a standard for reconsideration, “the Advisory Committee Notes make clear that jinterlocutory judgments ... are left subject to the complete power of the court rendering them to afford such relief as justice requires.' ” Grupo Televisa v. Telemundo Communs. Group, Inc., Case. No. 04–20073–CIV, 2007 WL 4699017, at *1, 2007 U.S. Dist. LEXIS 95914, at *3 (S.D.Fla. Oct. 11, 2007) (quoting Fed.R.Civ.P. 54(b), advisory committee's note).

Generally, the “purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Burger King Corp. v. Ashland Equities, Inc., 181 F.Supp.2d 1366, 1369 (S.D.Fla.2002) (citing Z.K. Marine, Inc. v. M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D.Fla.1992)). There are three major grounds that justify reconsideration: (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.” Burger King, 181 F.Supp.2d, at 1369. A motion for reconsideration should not be used to present authorities that were available at the time of the first decision, or to reiterate arguments previously made. Z.K. Marine, 808 F.Supp. at 1563;see also Reyher v. Equitable Life Assur. Soc., 900 F.Supp. 428, 430 (M.D.Fla.1995) (“The Court will not reconsider when the motion ... only relitigates what has already been found lacking.”). Rather, the movant “must demonstrate why the court should reconsider its prior decision and set forth facts or law of a strongly convincing nature to induce...

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