HOOVER v. SEARS HOLDING CORPORATION
OPINION filed. Signed by Judge Anne E. Thompson on 9/7/2017. (mps)
NOT FOR PUBLICATION
SEP 0 .7 2017
UNlTED ~TATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM HOOVER, on his behalf
WILLIAM T. WALSH
. behalfofall others similarly situated,
Civ. No. 16-4520
SEARS HOLDING CORPORATION.,
This matter comes before the Ciurt upon the motion by Plaintiff William Hoover
("Plaintiff') for reconsideration (ECF No. 45) of this Court's Opinion and Order granting the
motion to compel and to stay (ECF NJ 43, 44). Defendant Sears Holding Corporation1
("Defendant") opposes. (ECF No. 48). The Court has issued the opinion below based upon the
written submissions of the parties and ithout oral argument pursuant to Local Civil Rule
78.1 (b). For the reasons stated herein, ilaintiff' s motion for reconsideration will be denied.
This is an action brought pursult to the Telephone Consumer Protection Act, 47 U.S.C.
§ 227, et seq. ("TCPA"). Plaintiff's alljgations, in brief, are as follows: Defendant "bombarded"
Plaintiff's cellular telephone with approrimately sixty-eight automated, promotional
telemarketing text messages for Sears stores between October 4, 2015 and June 26, 2016,
without Plaintiff's prior written consentj (Am. Comp!. Tl[ 2, 12, ECF No. 14). The text
messages were "fully automated" and
individualized to Plaintiff in any way." (Id. '1[ 15).
Note, Sears Holding Corporation is distinct from Sear stores.
Plaintiff did not authorize, enroll in, ol provide prior express consent for the automated text
W 19, 21, 22).
Defendant alleges that Plainti, consented to "Shop Your Way" automated advertisement
messages from K-Mart, and this authored the Sears store messages, as they are related
companies. (See Def.'s Br. 1-2, ECF To. 34-1).
It is undisputed that Plaintiff signed up for Shop Your Way text messages at a K-Mart
store via pin pad. The pin pad sign up
lcreen stated, "I agree to get SYWR text messages
1Omsgs/mo + confirmation of opt out. asked for/agree to SYWR Terms. Msg+Data rates may
apply. CONFIRM YOUR MOBILE#." Plaintiff selected, "YES I agree and# is correct."
Defendant moved to dismiss th case, strike the class allegations, or to stay. That motion
was denied in its entirety on February 16, 2017. (ECF Nos. 26, 27). Defendant then moved to
compel arbitration and to stay. That motion was granted on June 14, 2017. (ECF Nos. 43, 44).
Plaintiff has moved for reconsideration of that opinion and order. (ECF No. 45). That motion is
presently before the Court.
Reconsideration is an extraordJary remedy that is to be granted ''very sparingly."
Friedman v. Bank ofAm., N.A., No. 09-!2214, 2012 WL 3146875, at *2 (D.N.J. Aug. 1, 2012).
Pursuant to Federal Rule of Civil Procjure 59(e) and Local Civil Rule 7.1, a motion for
reconsideration may be based on one of three separate grounds: ( 1) an intervening change in
controlling law; (2) new evidence not p eviously available; or (3) to correct a clear error oflaw
or to prevent manifest injustice. See North River Ins. Co. v. CIGNA Reins. Co., 52 F .3d 1194,
1218 (3d Cir.
A motion for reconsideration is not an opportunity to ask the Court to rethink what it has
already thought through. See Oritani S & L v. Fidelity & Deposit, 744 F. Supp. 1311, 1314
(D.N.J. 1990). Rather, a motion for rernsideration may be granted only if there is a dispositive
factual or legal matter that was'presentied but not considered that would have reasonably resulted
in a different conclusion by the court. lsee
Cham~ion Labs., Inc. v. Metex Corp., 677 F. Supp. 2d
748, 750 (D.N.J. 2010). Mere disagrient with a court's decision should be raised through the
appellate process and is inappropriate jn a motion for reconsideration. United States v.
Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999).
Furthermore, the fact that a leg1 issue was not explicitly mentioned by the court does not
preclude a finding that it was not overlfoked in the court's initial consideration of the matter.
Ashton v. AT&T Corp., 2006 WL 6909588, at *2 (D.N.J. Feb. 2, 2006) ("An argument is not
deemed overlooked because it
i~ not sprfically addressed in a court's opinion."). Rather, "[a]n
argument may be regarded as having
considered if it is presented to the court in written
submissions and in oral argument." U.S. ex rel. Simpson v. Bayer Corp., 2015 WL 3618295, at
*2 (D.N.J. June 9, 2015); see also Eich@rn v. AT & T Corp., 1999 WL 33471890 (D.N.J. Aug.
Plaintiff moves for reconsideraTn based upon an alleged clear error oflaw and to
prevent manifest injustice. (Pl.'s Br. at 11, ECF. No. 45). Plaintiff argues that the Court
mischaracterized his argument that the jgreement to arbitrate was illusory and unenforceable,
and, therefore, the Court committed a clL error of law. "Plaintiff is not arguing that the
arbitration clause is invalid because the roader agreement contains an unlawful clause which
would make an agreement illegal or that the entire agreement was created through fraud.
Instead, Plaintiff is arguing that, by thr express tenns of the [Shop Your Way Tenns and
Conditions]2, the arbitration clause itself is illusory." (Id. at 3). Plaintiff argues that because the
Tenns and Conditions permit Defendit to unilaterally alter the Program and Terms and
Conditions, and the arbitration clause is included within that, the arbitration clause could be
unilaterally cancelled by Defendant
is therefore illusory and unenforceable. (Id.).
In his original oppositiOn to thJ[ motion to compel, Plaintiff argued, "Because Sears
retained the right to modify the [Mem ership Terms and Conditions for the Shop Your Way
Program] at any time, C, any reason, I ·thout consent or notice, it is an i·11usory contract with no
mutual obligation between the parties
dis, therefore, unenforceable." (ECF No. 40, at 8).
"Therefore, the arbitration provision is based on an illusory promise, unenforceable, and
Defendant's motion should be denied.'1 (Id. at 11).
In his motion for reconsideration, Plaintiff simply restates his prior argument, which the
Court already considered and found unlvailing. Plaintiff attempts to narrow the Court's focus,
arguing that he argued specifically that re agreement to arbitrate was illusory, not the contract as
a whole. However, the Court has already considered this issue and rejected Plaintiffs
arguments. (See ECF Nos. 43, 44).
Even ifthe Court reconsidered Taintiff's argument, "as a matter of substantive federal
arbitration law, an arbitration provision 1is severable from the remainder of the contract ... [and]
unless the challenge is to the arbitration clause itself, the issue of the contract's validity is
considered by the arbitrator in the first instance." Buckeye Check Cashing, Inc. v. Cardegna, 546
U.S. 440, 445--46 (2006). "Generally,
should seek to enforce contracts and avoid deeming
Plaintiff uses the ~cronym "MTCSYWj' thr?ughout his brief, b~~ does not define it. The Court
has assumed that this refers to the Memqership Terms and Conditions for the Shop Your Way
Program, based upon Plaintiffs Opposition Brief to the original motion to compel (ECF No. 40).
them illusory." Del Son.tro v. Cendai Corp., 223 F. Supp. 2d 563, 577-78 (D.N.J. 2002) (citing
Russell v. Princeton Labs. Inc., 50 N.J. 30, 38 (N.J. 1967)).
At no point does Plaintiff ar,e that the clause that allows Defendant to alter the Terms
and Conditions is within the arbitration provision itself, or that the arbitration clause is not
severable from the rest of the contracJ if indeed the contract is illusory. The unilateral change
provision that Plaintiff complains of
a~pears to pertain only to the rewards program's point
system and administration, not to the ritration provision or other parts of the contract. (Deel.
Laura Novak, Ex. B, ECF No. ·34-2 aT 5, , 2). Therefore, the arbitration provision appears to be
severable and non-illusory, and any issue with the contract's validity should be considered by the
arbitrator. See Buckeye, 546 U.S. at 15-46.
Plaintiff has not shown a dispositive factual or legal matter that was presented but not
considered that would have reas.onabl11 resulted in a different conclusion by the court.
For the reasons above, Plaintiff's motion for reconsideration will be denied. A
corresponding order will follow.
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