Inetianbor v. Cashcall, Inc. et al
ORDER denying 61 Motion for Reconsideration; denying 62 Motion to Reopen Case. Signed by Judge James I. Cohn on 6/20/2013. (ams)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-60066-CIV-COHN/SELTZER
ORDER DENYING MOTION FOR RECONSIDERATION
THIS CAUSE is before the Court upon Plaintiff’s Motion to Reconsider and
Report Regarding the Status of the Case [DE 61], and Plaintiff’s Motion to Reopen
Case [DE 62]. The Court has considered the motions, Defendant’s responses
[DE’s 65, 66], Plaintiff’s replies [DE’s 67, 69], the record in this case, and is otherwise
fully advised in the premises.
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
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.
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. See DE 33 at 8.
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 Plaintiff had provided persuasive evidence 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 granted Plaintiff’s motion and
reopened the case. See DE 45.
On April 23, 2013, CashCall filed a Renewed Motion to Compel Arbitration and
Dismiss or Stay Case [DE 53] (“Renewed Motion to Compel”), wherein it submitted
evidence 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 preexisting relationship with either party in this case.” See DE 57-1. Based
on this evidence, the Court granted the Renewed Motion to Compel on May 17, 2013.
DE 59 (“May 17 Order”).
In both of the motions presently before the Court, Plaintiff asks the Court to
reconsider its May 17 Order and to reopen the case on the grounds that Mr. Chasing
Hawk is biased in favor of CashCall. CashCall opposes the relief sought.
II. LEGAL STANDARDS
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. See Fed. R. Civ. P. 54(b); Coty Inc. v. C Lenu, Inc., Case No.
10-21812-CIV-HUCK/O’SULLIVAN, 2011 U.S. Dist. LEXIS 14813, at *7 (S.D. Fla. Feb.
15, 2011) (“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
‘interlocutory 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 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 the court to reverse its prior decision.” Reyher, 900 F.
Supp. at 430.
Here, Plaintiff asks the Court to reconsider an order compelling arbitration. As
the Court previously explained,
The Court’s role in deciding a dispute is quite limited when there is an
agreement to arbitrate. “[T]he threshold questions a district court must
answer when determining whether a case may be properly referred to
arbitration are: (1) whether the parties entered into a valid arbitration
agreement; and (2) whether the specific dispute falls within the scope of
the agreement.” Viamonte v. Biohealth Techs., No. 09-21522-CIVGOLD/McALILEY, 2009 U.S. Dist. LEXIS 119200, *6 (S.D. Fla. Nov. 24,
DE 59 at 4. Therefore, in order to meet his burden for reconsideration, Plaintiff must
show a change in controlling law, newly-available evidence, or a need to correct clear
error that pertains to the threshold questions of arbitrability.
Here, Plaintiff asserts that he has uncovered two new pieces of evidence that
indicate that Mr. Chasing Hawk is biased toward CashCall. First, Plaintiff claims that
Mr. Chasing Hawk’s daughter, Shannon Chasing Hawk, is employed by Western Sky.
Plaintiff has attached what he claims is a printout of Ms. Chasing Hawk’s Facebook
profile page, listing “Western Sky Financial” as her employer. See DE 61 at 9. He
further alleges that Mr. Chasing Hawk has “10+ kids and every single one of them has
either worked for, currently works at CashCall or one of its subsidiaries . . . or had
illegally attempted to conduct an unsuccessful arbitration for the defendant.” DE 67 at 2
n.1. Second, Plaintiff alleges that CashCall and Mr. Chasing Hawk have colluded in the
initiation of arbitration proceedings. Plaintiff attaches what he claims is an email chain
between Mr. Chasing Hawk and an employee of Lakota Cash, LLC (“Lakota Cash”), a
subsidiary of Western Sky, which purportedly shows that Lakota Cash prepared the
letter for Mr. Chasing Hawk. See id. at 7-8. Plaintiff further claims that he called Mr.
Chasing Hawk, and that Mr. Chasing Hawk admitted during the phone call that
CashCall had prepared the letter for him. Plaintiff represents that he has tried calling
Mr. Chasing Hawk again, but that he told Plaintiff that “I am not able to talk to you
because cash call (sic) will get mad. You have to call the attorney, sorry.” Id. at 3.
Plaintiff argues that, taken together, such facts show that there is “evident
partiality . . . in the [arbitrator],” and that any arbitration proceedings will be corrupt.
See DE 69 at 1-3 (citing 9 U.S.C. § 10(a)(2)). However, even if the Court accepts
Plaintiff’s allegations as true, such allegations do not provide a basis for avoiding
arbitration. As outlined above, the Court’s inquiry on a motion to compel arbitration is
limited to determining the two threshold issues of arbitrability. Here, Plaintiff fails to
show how Mr. Chasing Hawk’s alleged bias either invalidates the arbitration agreement,
or places Plaintiff’s claims outside the scope of the agreement.
Additionally, it 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, 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. See 9 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. Therefore, because Plaintiff has failed to
provide grounds for reconsideration of the May 17 Order, the motion will be denied.
Thus, for the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion to Reconsider and
Report Regarding the Status of the Case [DE 61], and Plaintiff’s Motion to Reopen
Case [DE 62] are DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 20th day of June, 2013.
Copies provided to:
Counsel of record via CM/ECF
Abraham Intetianbor, pro se
4271 NW 5th Street, #247
Plantation, FL 33317
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?