Wendell et al v. Verizon Communications, Inc. et al

Filing 45

ORDER denying 33 Motion for Reconsideration Signed by Honorable David C. Bramlette, III on 1/27/2017 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JAMES WENDELL, JESSICA WENDELL, AND
S.W., A MINOR BY AND THROUGH HIS PARENTS,
JESSICA WENDELL AND JAMES WENDELL
VS.

PLAINTIFFS

CIVIL ACTION NO. 5:16-cv-50(DCB)(MTP)

CELLCO PARTNERSHIP D/B/A
VERIZON COMMUNICATIONS, INC.;1
TELECOMMUNICATION SYSTEMS, INC.;2
AND JOHN DOES 1-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Plaintiffs’ Motion for
Reconsideration (docket entry 33) filed by James Wendell, Jessica
Wendell, and S.W., a Minor by and through his parents, Jessica
Wendell and James Wendell.

Having carefully considered the motion

and the response of defendant Cellco Partnership d/b/a Verizon
Communications (hereafter “Verizon”), the memoranda of the parties
and the applicable law, and being fully advised in the premises the
Court finds as follows:
On November 14, 2016, the Court granted Verizon’s Motion to
Compel Arbitration and to Stay Case.

In their present motion, the

1

The proper name of this entity is Cellco Partnership d/b/a
Verizon Wireless (see docket entry 8, p. 7).
2

Defendant Safety and Security Technologies, Inc., was
voluntarily dismissed by the plaintiffs on June 23, 2016, and
defendant TeleCommunication Systems, Inc. was substituted in its
place. The plaintiffs’ First Amended Complaint (docket entry 15) is
identical to their original Complaint (docket entry 1) except for the
substitution of parties.

plaintiffs argue that the Customer Agreement between plaintiffs and
Verizon is one of adhesion wherein all bargaining power is held by
Verizon.

The plaintiffs further state that questions concerning

the validity of the contract are examined under Mississippi law,
and that Mississippi courts have frequently addressed the issue of
unequal bargaining power without deferring that question to the
arbitrator. The plaintiffs contend that the contract providing for
arbitration is substantively unconscionable and should not be
enforced.

In the alternative, they request that the costs of

arbitration be borne by Verizon.
“A motion for reconsideration may not be used to rehash
rejected arguments or introduce new ones.”

LeClerc v. Webb, 419

F.3d 405, 412 n.13 (5th Cir. 2005); accord Nationalist Movement v.
Town of Jena, 321 F. App’x 359, 364 (5th Cir. 2009); Malcolm v.
Vicksburg Warren School Dist. Bd. of Trustees, 2016 WL 6916791, at
*3 (S.D. Miss. Nov. 22, 2016).

On the contrary, “the narrow

purpose of a motion for reconsideration is to allow a party to
correct manifest errors of law or fact or present newly discovered
evidence.”

Nationalist Movement, 321 F. App’x at 364 (5th Cir.

2009); accord In re Rodriguez, 695 F.3d 360, 371 (5th Cir. 2012)
(motions to reconsider “call into question the correctness of a
judgment and are properly invoked to correct manifest errors of law
or fact or to present newly discovered evidence”)(quotation marks
omitted)). Reconsideration “is an extraordinary remedy that should

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be used sparingly.”

In re Gonzalez, 695 F.3d at 371; accord Life

Ins. Co. of N. Am. v. Ard, 2015 WL 898302, at *1 (S.D. Miss. Mar.
3,

2015).

Whether

to

discretion of the Court.
The

plaintiffs’

reconsider

is

committed

to

the

sound

LeClerc, 419 F.3d at 412 n.13.

argument

that

the

Customer

Agreement

is

substantively unconscionable because it is a contract of adhesion
was fully addressed in the Court’s previous Memorandum Opinion and
was rejected. The Court concluded that the question of whether the
Customer

Agreement

arbitrator

to

is

address.

an

adhesion
The

contract

plaintiffs’

is

for

argument

one

the

that

the

Mississippi Supreme Court, in Caplin Enters., Inc. v. Arrington,
145 So.3d 608, 614 (Miss. 2014), did not refer a dispute over
whether a contract was one of adhesion to the arbitrator is beside
the point.

As interpreted by the Supreme Court of the United

States, the Federal Arbitration Act requires that “a challenge to
the validity of the contract as a whole, and not specifically to
the arbitration clause, must go to the arbitrator.”

Buckeye Check

Cashing, Inc. v. Cardegna, 546 U.S. 440, 449 (2006). That has been
the black-letter rule since the Supreme Court’s 1967 decision in
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967).
The plaintiffs further claim that the arbitration agreement is
substantively unconscionable because, even though it requires both
sides to take small-value claims to court, in practice that
requirement favors Verizon because it is more likely than the

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plaintiffs to have small-value claims.

This argument was also

considered and rejected by the Court, and the plaintiffs have not
come forward with any evidence to support their contention.
The plaintiffs also urge the Court to require Verizon to pay
all costs of arbitration. This argument was not put forward by the
plaintiffs in their response to the motion to compel arbitration,
and is therefore waived.
offered

any

evidence

prohibitively
arbitration

Furthermore, the plaintiffs have not

that

expensive.

agreement

the

arbitration

Finally,

establishes

Verizon
that

costs

would

asserts

that

the

pay

for

Verizon

will

be

arbitration, and therefore the issue of arbitration costs is moot.
For

the

foregoing

reasons,

the

plaintiffs’

Motion

for

the

Plaintiffs’

Motion

for

Reconsideration shall be denied.
Accordingly,
IT

IS

HEREBY

ORDERED

that

Reconsideration (docket entry 33) is DENIED.
SO ORDERED, this the 27th day of January, 2017.

/s/ David C. Bramlette
UNITED STATES DISTRICT JUDGE

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