Inetianbor v. Cashcall, Inc. et al
ORDER granting 72 Motion for Reconsideration re 59 Order on Motion to Compel, Order on Motion to Dismiss/Lack of Jurisdiction, Order on Motion to Stay; denying as moot 77 Motion for Discovery; denying as moot 82 Motion for Extension of Time to File Response/Reply re 77 Motion for Discovery. The stay in this case is LIFTED. Signed by Judge James I. Cohn on 8/19/2013. (ams)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-60066-CIV-COHN/SELTZER
ORDER GRANTING PLAINTIFF’S RENEWED MOTION FOR COURT TO
RECONSIDER ITS ORDER REQUIRING ARBITRATION
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.
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. . . . 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
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 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. See DE 45
(“April 1 Order”).
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. See DE 59
(“May 17 Order”).
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, 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.
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. 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.
The Court has previously held that the availability of the Tribal forum is an
integral part of the agreement to arbitrate, and that the unavailability of that forum would
void the agreement. See DE 45 at 5-7. Indeed, the primary factor guiding the Court’s
reasoning in both the April 1 Order and the May 17 Order was the availability of the
forum described in the parties’ agreement. Thus, a showing of new evidence or a need
to correct clear error regarding the existence or availability of the Tribal forum would
support reconsideration of the May 17 Order.
Here, the parties agreed to a very specific manner of arbitration. The loan
agreement provides that arbitration will be conducted 1) by the Tribe, through an
authorized representative, and 2) in accordance with the Tribe’s consumer dispute
rules. Plaintiff asserts that the Tribe does not conduct arbitrations through an
authorized representative. Plaintiff further asserts that the Tribe does not have any
consumer dispute rules. Therefore, Plaintiff argues that the agreed upon arbitral forum
is not available. As described below, the Court agrees, and will grant reconsideration of
the May 17 Order.
A. Whether the Tribe Conducts Arbitration
Plaintiff claims that he has new evidence concerning whether the Tribe, through
an authorized representative, conducts arbitrations. Plaintiff represents that, on June
21, 2013, the parties in this action attended a preliminary arbitration hearing before Mr.
Chasing Hawk. Plaintiff has attached a transcript of that hearing as an exhibit to this
motion. See DE 73-22. At the hearing, Plaintiff inquired into who was responsible for
selecting Mr. Chasing Hawk as an arbitrator, asking as follows:
Your Honor, who selected you to be an arbitrator, the
Tribe or CashCall?
Mr. Chasing Hawk: The Western Dakota owner.
So the owner of Western Sky asked you to be an
arbitrator for this case . . . ?
Mr. Chasing Hawk: Yes because I’ve been on the Tribal Council for 20
Yeah, is the Tribe aware of this selection process?
Mr. Chasing Hawk: [Inaudible] . . . because again this is a private
business deal. The Tribe has nothing to do with any
of this business.
DE 73-22 at 18. Based on this exchange, Plaintiff argues that Mr. Chasing Hawk is not
an authorized representative of the Tribe, and the Tribe does not conduct arbitrations.
The Court’s previous determinations on this issue have been based principally
on three pieces of evidence. First, in the April 1 Order, the Court relied upon the letter
from Judge Demery in which she stated that “the Cheyenne River Sioux Tribe . . . does
not authorize Arbitration. . . . “ DE 37 at 5. As Defendant failed to provide any
evidence to the contrary at that time, the Court found that the forum was not available.
Then, in filing its motion to reconsider the April 1 Order, CashCall submitted a second
letter from Judge Demery, issued as a clarification of the previous letter, stating that
“[t]he [Tribal] Court does not provide arbitration. Arbitration, as in a contractual
agreement, is permissible.” DE 53-3 at 2. CashCall also provided a letter from
Mr. Chasing Hawk in which he represented that he “[had] received the Demand for
Arbitration from CashCall, Inc. [. . . ] and will be serving as the arbitrator for this
dispute.” DE 57-1 at 2. Thus, the basis for the Court’s April 1 Order – Judge Demery’s
initial letter – was undermined by her subsequent letter. Moreover, while it was not
clear that Mr. Chasing Hawk was an authorized representative of the Tribe, there was
no evidence to rebut CashCall’s assertion that the forum was available. Accordingly,
the Court compelled arbitration.
Now, however, the Court has evidence before it that Mr. Chasing Hawk is not an
authorized representative of the Tribe for the purpose of conducting this arbitration, and
that the Tribe “has nothing to do with any of this business.” Conspicuously, CashCall
does not directly answer Plaintiff’s charge. Instead, CashCall argues that, even if Mr.
Chasing Hawk could not serve as an arbitrator, CashCall has located several other
Tribal Elders that would be available. DE 81 at 9. However, CashCall does not specify
whether these Elders would be conducting arbitration as authorized representatives of
the Tribe, as required by the arbitration agreement. At the August 16, 2013 hearing on
the motion, counsel for CashCall stated that the Tribe authorizes arbitrations, but
offered no factual basis for this contention.
Therefore, based on the record evidence, the Court makes two findings. First,
the Court finds that Mr. Chasing Hawk is not, and does not purport to be, conducting
arbitration as an authorized representative of the Tribe. Second, having failed to select
an arbitrator who is an authorized representative, CashCall has further failed – despite
numerous opportunities – to show that the Tribe is available through an authorized
representative to conduct arbitrations. Accordingly, the Court concludes that Plaintiff
has provided new evidence showing that the agreed upon arbitral forum is not
available, and that reconsideration is appropriate.
B. Existence of Tribal Consumer Dispute Rules
Second, Plaintiff contends that he has obtained new evidence showing that the
Tribe does not have any consumer dispute rules. Plaintiff submits an affidavit stating
that, after the June 21, 2013 preliminary hearing, CashCall sent him a copy of the Tribal
legal code, but that it did not contain any consumer dispute rules. DE 86-1 at 2-3. He
further claims that he had previously asked CashCall for a copy of the consumer
dispute rules and the Tribal laws, but that he was rebuffed. Id.
In its Response to the present motion, CashCall does not respond to the merits
of Plaintiff’s argument. Instead, CashCall argues that Plaintiff has already raised this
argument before the Court and the Court has rejected it. Specifically, CashCall
contends that Plaintiff raised this argument at paragraph eight of his reply brief in
support of his Motion to Reconsider and Report Regarding the Status of the Case
[DE 67]. This is plainly incorrect. In that reply brief, Plaintiff asserted that Mr. Chasing
Hawk would not follow tribal arbitration rules, and would instead follow arbitration
procedures as dictated by this Court. DE 67 at 3. However, that argument is entirely
different from his present contention that tribal consumer dispute rules simply do not
exist. While the former assertion implicates the conduct of the arbitrator and the
fairness of the proceeding, the latter goes to the availability of the forum, and therefore
affects the validity of the arbitration agreement.
At the August 16, 2013 hearing, CashCall conceded that, while the Tribe has
rules concerning consumer relations – e.g., usury statutes – it does not have any
consumer dispute rules. Without such rules, it is obvious that arbitration cannot be
conducted “in accordance with [Tribal] consumer dispute rules” as required by the
arbitration agreement. Accordingly, the Court concludes that Plaintiff has provided new
evidence demonstrating that 1) the arbitral forum does not exist, and 2) rules governing
the purported forum do not exist.1 Moreover, for the reasons stated in the April 1 Order,
the selection of the Tribe as arbitrator was integral to the agreement to arbitrate.
Indeed, the lack of any Tribal rules governing these types of disputes only
bolsters the Court’s conclusion that the Tribe does not conduct arbitrations concerning
Because the Tribe is not available to arbitrate the parties’ claims in this action, the
arbitration agreement is void. Therefore, Plaintiff’s motion will be granted and the case
will be reopened for further proceedings.
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED as follows:
Plaintiff’s Renewed Motion for Court to Reconsider Its Order Requiring
Arbitration [DE 72] is GRANTED;
The Order Compelling Arbitration [DE 59] is VACATED;
The stay in this case is LIFTED and the Clerk of Court is directed to
REOPEN this case;
Plaintiff’s Motion Requesting Discovery on Arbitration Clause and Related
Issues [DE 77] is DENIED as moot;
CashCall’s Motion for Extension of Time to Respond to Plaintiff’s Motion
Requesting Discovery on Arbitration Clause and Related Issues [DE 82] is
DENIED as moot; and
The Court will enter a separate Order concerning the scheduling of this
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 19th day of August, 2013.
Copies provided to:
Counsel of record via CM/ECF.
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