Slatten et al v. Jim Glover Chevrolet Lawton LLC et al

Filing 29

ORDER denying 26 Motion to Reconsider. Signed by Honorable Timothy D. DeGiusti on 9/7/2016. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ASHLEY SLATTEN, et al.,

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Plaintiffs,
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vs.
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JIM GLOVER CHEVROLET LAWTON, )
LLC, et al.,
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Defendants.
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Case No. CIV-15-1180-D

ORDER
Before the Court is Defendant Jim Glover Chevrolet Lawton, LLC’s Motion to
Reconsider [Doc. No. 26], which seeks relief from the Order of June 29, 2016, denying a
prior motion to compel arbitration.1 Plaintiffs have timely opposed the Motion, which is
fully briefed and at issue.2
Defendant’s previous motion sought to enforce an arbitration agreement contained in
the Dispute Resolution Clause (“DRC”) of a written purchase agreement between the parties,
pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16. One issue raised by the motion,
argued by the parties, and decided by the Court, was whether a fee-splitting provision of the
DRC, which would require Plaintiffs to pay half of the arbitrator’s fee, was unconscionable
and rendered the DRC unenforceable. The Court found that Plaintiffs had sufficiently shown
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The Motion states it is filed pursuant to Fed. R. Civ. P. 59(e), but this rule is inapplicable.
Rule 59(e) authorizes a district court to alter or amend a judgment; the Motion seeks reconsideration of an
interlocutory order. However, the same standard of decision applies, as discussed infra.
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Other named defendants, GM Financial, LLC and General Motors, LLC, have remained silent
regarding arbitration, and are disregarded for purposes of this Order.

they could not afford their share of the fee and enforcement of the DRC would be cost
prohibitive. The Court further found “that enforcement of the arbitration agreement in this
case would prevent the effective vindication of Plaintiffs’ statutory claims under the
Magnuson-Moss Warranty Act and that the DRC is unenforceable under the Federal
Arbitration Act.” See Order of June 29, 2016 [Doc. No. 25], p.8. The Court rejected
Defendant’s argument in support of enforcing the fee-splitting provision of the DRC that, if
it caused financial hardship, Plaintiffs could seek relief under a rule of the American
Arbitration Association permitting a reduction or shifting of the arbitrator’s fee and expenses
in such cases. See Def.’s Reply Supp. Mot. Compel Arbitration [Doc. No. 18], p.10 (arguing
the proposition that “The Fee Splitting Provision Is Not Unconscionable”). The Court found
the possibility of obtaining future relief from the arbitrator was insufficient under Nesbitt v.
FCNH, Inc., 811 F.3d 371 (10th Cir. 2016).
Defendant now asks the Court to revisit its ruling based on an argument that Nesbitt
is inapplicable because it involved the American Arbitration Association’s commercial rules
rather than the consumer rules that would govern Plaintiffs’ claims. In a complete change
of position, Defendant argues that the fee-splitting provision of the DRC is unenforceable
because it is contrary to the Consumer Arbitration Rules, a copy of which are submitted as
Exhibit 2 to the Motion. According to Defendant, this conflict creates an ambiguity in the
DRC that permits Oklahoma rules of contract interpretation to be used to strike the fee
provision. Defendant specifically asks the Court “to disregard the unconscionable feesplitting provision and enforce the $200 consumer cap” imposed by the newly-asserted
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Consumer Arbitration Rules. See Def.’s Mot. Reconsider [Doc. No. 26], p.6 (hereafter,
“Motion”); Def,’s Reply Br. [Doc. No. 28], p.8. If the fee-splitting provision is disregarded,
Defendant argues, the DRC is otherwise enforceable and requires an order compelling
arbitration. See Motion, p.8.
“The Federal Rules of Civil Procedure do not recognize a ‘motion to reconsider.’”
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); see Warren v. American
Bankers Ins., 507 F.3d 1239, 1243 (10th Cir. 2007). However, a district court has inherent
power to revise interlocutory orders at any time before the entry of a final judgment. See
Warren, 507 F.3d at 1243; Riggs v. Scrivner, Inc., 927 F.2d 1146, 1148 (10th Cir. 1991).
“Grounds warranting a motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (citations omitted); see Van Skiver, 952 F.2d at 1243. “[A] motion for
reconsideration is appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law. It is not appropriate to revisit issues already addressed or
advance arguments that could have been raised in prior briefing.” Servants of Paraclete,
204 F.3d at 1012; see United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014).
In this case, Defendant acknowledges this standard for obtaining reconsideration of
an order but fails to show it is satisfied under the circumstances. The only argument on this
point appears in the conclusion of Defendant’s reply brief, which states: “[Defendant] is not
attempting to assert new arguments or facts in its Motion to Reconsider; rather [Defendant]
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seeks reconsideration to correct clear error or prevent manifest injustice where there has been
a misapprehension of the facts.” See Def.’s Reply Br. [Doc. No. 28], p.10. The Court finds
the first half of this statement to be disingenuous. Defendant has made a complete about-face
of its position regarding the fee-splitting provision, as discussed supra, and argues new facts,
including the alleged applicability of the Consumer Arbitration Rules.
The Court also is not persuaded by Defendant’s statement that reconsideration will
prevent error and injustice. The time for Defendant to denounce the fee-splitting provision
of the DRC and assume responsibility for paying the full arbitrator’s fee, if at all, was when
arguing its motion to compel arbitration based on the alleged agreement in the DRC. The
Court finds no injustice in declining to consider a new interpretation of the DRC asserted in
the instant Motion, or a belated attempt to enforce the arbitration agreement on terms
different from its written provisions. Defendant is plainly advancing arguments that could
have been raised in prior briefing and seeking a second bite at the proverbial apple. See
United States v. Nacchio, 555 F.3d 1234, 1252 (10th Cir. 2009) (“Courts are not disposed to
allow litigants to have two or more bites at the proverbial apple.”) (en banc).
IT IS THEREFORE ORDERED that Defendant Jim Glover Chevrolet Lawton, LLC’s
Motion to Reconsider [Doc. No. 26] is DENIED.
IT IS SO ORDERED this 7th day of September, 2016.

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