United States District Court, M.D. Florida, Tampa Division
MELISSA A. MITCHELL, on behalf or herself and all others in the State of Florida similarly situated, Plaintiffs,
PRECISION MOTOR CARS INC., d/b/a MERCEDES-BENZ OF TAMPA, Defendant.
C. BUCKLEW UNITED SATE DISTRICT JUDGE
cause comes before the Court on Plaintiff's Motion for
Reconsideration. (Doc. No. 57). Because the Court finds that
the motion must be denied, it denies the motion without
requiring Defendant to file a response.
motion, Plaintiff basically re-asserts the arguments that she
made in her motion for summary judgment (Doc. No. 50), which
this Court denied (Doc. No. 52). Plaintiff asks the Court to
reconsider that order denying her motion for summary
are 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
to prevent manifest injustice. Sussman v. Salem, Saxon
& Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla.
1994)(citations omitted). The Court notes that
reconsideration of a previous order is an extraordinary
remedy to be employed sparingly. See id. (citations
omitted). Plaintiff argues that her motion is based on the
need to correct clear error or to prevent manifest injustice.
As explained below, the Court rejects this argument and finds
that reconsideration is not warranted.
instant motion, Plaintiff once again focuses on Gagnon v.
Experian Information Solutions, Inc., 2014 WL
5336490 (M.D. Fla. Oct. 20, 2014), a case that the Court
brought to the parties' attention. (Doc. No. 13).
Plaintiff complains that she never had an opportunity to
address this case after the Court brought the case to the
parties' attention in connection with Defendant's
motion to compel arbitration. However, the Gagnon
case was decided on October 20, 2014-over two years prior to
Defendant's motion to compel arbitration. Plaintiff
should have discovered the Gagnon case in connection
with her research for responding to Defendant's motion to
compel arbitration, especially given Plaintiff's refrain
that Gagnon is “factually
indistinguishable” from the instant case. (Doc. No. 57,
the Court concludes that Gagnon is not persuasive as
to the issue before the Court, especially given the
later-decided Eleventh Circuit case of Bazemore v.
Jefferson Capital Systems, 827 F.3d 1325 (11th Cir.
2016). In Bazemore, the court stated that when there
is a genuine dispute of material fact regarding whether the
parties entered into an arbitration agreement, summary
judgment is not warranted. See id. at 1333.
however, argues that Defendant cannot put forth any evidence
of a purported arbitration agreement in order to create a
genuine issue of material fact, because Defendant has not met
its burden of providing a satisfactory explanation as to the
loss or destruction of the credit application purportedly
containing the arbitration agreement. The Court again rejects
this argument, because Plaintiff fails to acknowledge the
plain text of the rules of admissibility to which she is
referring. Specifically, Florida Statute § 90.954(1)
provides that “[t]he original of a writing . . . is not
required . . . and other evidence of its contents is
admissible when . . . [a]ll originals are lost or destroyed,
unless the proponent lost or destroyed them in bad
faith.” Federal Rule of Evidence 1004(a) essentially
provides the same thing. Furthermore, the notes to Federal
Rule of Evidence 1004(a) provides:
[I]f failure to produce the original is satisfactorily
explained, secondary evidence is admissible. . . . Loss or
destruction of the original, unless due to bad faith of the
proponent, is a satisfactory explanation of nonproduction.
1004(a), Advisory Committee Notes. Likewise, the notes to
Florida Statute § 90.954(1) provide:
When the original is lost or destroyed and there is no bad
faith shown by the proponent, including his authorization or
causation of loss or destruction by a third party, such loss
or destruction is a satisfactory explanation for the
nonproduction. If the destruction was not fraudulent, other
evidence is admissible.
Stat. § 90.954, Notes.
has offered evidence that it cannot locate the credit
application that purportedly contains the arbitration
agreement at issue. Thus, Defendant contends, and the Court
has accepted, that Defendant has lost the credit application
containing the arbitration agreement and did not lose it in
bad faith. As such, Defendant may introduce into evidence a
copy of the credit application purportedly containing the
arbitration agreement. It is for a jury to determine whether
they believe Plaintiff or Defendant regarding the inclusion
of an arbitration agreement within the credit application.
rest of the arguments contained within the instant motion are
simply attempts to refute the Court's decision. The Court
rejects those arguments without further discussion.
it is ORDERED AND ADJUDGED that Plaintiffs Motion for