CaringOnDemand, LLC et al v. Ventive LLC

Filing 51

ORDER denying 47 Motion for Reconsideration. Signed by Judge Beth Bloom on 7/18/2018. See attached document for full details. (ail)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-80211-BLOOM/Reinhart
CARINGONDEMAND, LLC
and AVIOR SCIENCES, LLC,
Plaintiffs,
vs.
VENTIVE LLC,
Defendant.

ORDER
THIS CAUSE is before the Court upon Plaintiff’s1 Motion for Reconsideration of Order
Compelling Arbitration and the Appointment of an Arbitrator, ECF No. [47] (the “Motion”).
The Court has carefully considered the Motion, the record in this case, and is otherwise fully
informed. For the reasons that follow, Plaintiff’s Motion is denied.
“[T]he courts have delineated three major grounds justifying 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.” Williams v. Cruise Ships Catering & Serv.
Int’l, N.V., 320 F. Supp. 2d 1347, 1357-58 (S.D. Fla. 2004) (citing Sussman v. Salem, Saxon &
Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994)); see Burger King Corp. v. Ashland
Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002). “[R]econsideration of a previous
order is an extraordinary remedy to be employed sparingly in the interests of finality and
conservation of scarce judicial resources.” Wendy’s Int’l, Inc. v. Nu-Cape Const., Inc., 169
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This Motion is only filed on behalf of Plaintiff CaringOnDemand, LLC and not on behalf of Plaintiff
Avior Sciences, LLC. See ECF No. [47].

Case No. 18-cv-80211-BLOOM/Reinhart
F.R.D. 680, 685 (M.D. Fla. 1996); see also Campero USA Corp. v. ADS Foodservice, LLC, 916
F. Supp. 2d 1284, 1290 (S.D. Fla. 2012). “A motion for reconsideration should not be used as a
vehicle to present authorities available at the time of the first decision or to reiterate arguments
previously made.” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla.
1992). “Motions for reconsideration are appropriate where, for example, the Court has patently
misunderstood a party.” Compania de Elaborados de Cafe v. Cardinal Capital Mgmt., Inc., 401
F. Supp. 2d 1270, 1283 (S.D. Fla. 2003); see Eveillard v. Nationstar Mortgage LLC, No. 14CIV-61786, 2015 WL 1191170, at *6 (S.D. Fla. Mar. 16, 2015). Similarly, reconsideration may
be appropriate when the court “‘has made a decision outside the adversarial issues presented to
the [c]ourt by the parties, or has made an error not of reasoning but of apprehension.’”
Mierzwicki v. Citigroup, Inc., No. 14-CV-61753, 2015 WL 13388667, at *1 (S.D. Fla. Oct. 13,
2015) (quoting Z.K. Marine, 808 F. Supp. at 1563). “[T]he movant must do more than simply
restate his or her previous arguments, and any arguments the movant failed to raise in the earlier
motion will be deemed waived.” Compania, 401 F. Supp. 2d at 1283.
Plaintiff asks the Court to reconsider its Omnibus Order in which it granted in part
Plaintiffs’ Urgent Verified Motion to Compel Arbitration, ECF No. [5] (“Motion to Compel
Arbitration”), and ordered the parties to “submit ‘all disputes’ to arbitration in accordance with
Section 13 of the Consultant Agreement.” See ECF No. [46]. Following the issuance of the
Omnibus Order, Plaintiff filed a demand for arbitration in Palm Beach County, Florida with
JAMS, but Defendant submitted a letter rejecting such an arbitration demand. See ECF No. [47]
at 2. Defendant thereafter filed a Motion to Appoint Arbitrator in the parallel lawsuit pending in
the District of Idaho, Case No. 18-cv-00120 (“the Idaho action”) and asked that district court to
“select and appoint a retired state or federal court judge in the State of Idaho to administer
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Case No. 18-cv-80211-BLOOM/Reinhart
arbitration in this matter, including the determination of the venue or location of the arbitration
hearing, if necessary.” See ECF No. [47-7]; [48-1] at 15. Plaintiff now asks this Court to
reconsider its Omnibus Order by entering an “order pursuant to 9 U.S.C. § 5 to appoint an
arbitrator to arbitrate the disputes between Plaintiff and the Defendant, Ventive, LLC.” Id. at 1.
In support of this request, Plaintiff states “the Omnibus Order did not address the appointment of
an arbitrator,” which “has perpetuated this dispute as the Defendant objects to JAMS
administration of the arbitration and appointing an independent arbitrator.” Id. at 1-2, 4.
According to the Motion, there are two grounds upon which the Court should reconsider
its Omnibus Order: (1) the availability of new evidence and (2) the need to correct clear error or
prevent manifest injustice. Id. at 7. Neither avenue affords Plaintiff the relief requested. This is
because Plaintiff never asked this Court to appoint an arbitrator in the Complaint or in the
Motion to Compel Arbitration. The Complaint requested “an Order pursuant to 9 U.S.C. § 4
compelling arbitration of the Plaintiffs’ claims against the Defendant (and any counterclaims the
Defendant may have) detailed herein.” ECF No. [1] at 1. Nowhere in the Complaint is there a
request for the appointment of an arbitrator pursuant to 9 U.S.C. § 5. Id. Similarly, Plaintiff’s
Motion to Compel Arbitration, which is the subject of the Omnibus Order, only requested two
forms of relief (1) the entry of an order compelling arbitration in Delray Beach, Florida and (2)
an award of attorney’s fees. See ECF No. [5]. It contains no request to appoint an arbitrator. Id.
In fact, this Court closed the case in the Omnibus Order because no other claim for relief
remained pending once arbitration had been compelled. See ECF No. [46]. Plaintiff’s own
submissions recognize that when the Court issued its Omnibus Order, all pending matters had
been ruled upon. Specifically, Plaintiff asks the Court to take judicial notice of two filings from

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Case No. 18-cv-80211-BLOOM/Reinhart
the Idaho action. See ECF Nos. [49] and [50]. Within one of these filings, Plaintiff recognizes
that “the Florida court resolved all pending matters before it at that time.” ECF No. [50] at 5.
Put simply, there is nothing for the Court to reconsider as the relief Plaintiff now seeks
was never sought in the first place. This is not a situation where the Court misunderstood
Plaintiff’s position or made a decision outside the adversarial issues presented by the parties so
as to warrant reconsideration.2 Likewise, this is not a situation where Plaintiff has uncovered
“new evidence” pertinent to the issues ruled upon as Plaintiff’s proffer of “new evidence” relates
to a dispute that was never before this tribunal - the appointment of an arbitrator. Rather,
Plaintiff is using a motion for reconsideration as a vehicle to seek relief that it could have
requested but failed to request. A party “cannot use a Rule 59(e) motion to relitigate old matters,
raise argument or present evidence that could have been raised prior to the entry of judgment.”
Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). It is therefore
ORDERED AND ADJUDGED that Plaintiff’s Motion for Reconsideration of Order
Compelling Arbitration and the Appointment of an Arbitrator, ECF No. [47], is DENIED.
DONE AND ORDERED in Miami, Florida, this 18th day of July, 2018.

____________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

Copies to:
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In addition, Plaintiff’s filing in the Idaho action recognizes that, under the Omnibus Order, the
appointment of the arbitrator “would appear to need to be submitted to an arbitrator.” ECF No. [50] at 6.
Plaintiff’s statement recognizes that the question of the appointment of the arbitrator is not a matter for
this Court to decide.

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Case No. 18-cv-80211-BLOOM/Reinhart
Counsel of Record

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