1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNETTA RILEY Plaintiff,

v. BMO HARRIS BANK, N.A., et al , Defendants

. Civil Action No. 13-1677 (CKK)

MEMORANDUM OPINION (July 22, 2015) Plaintiff, Johnetta Riley, filed suit against Missouri Bank and Trust (“MBT”), BMO Harris Bank, N.A., and First Premier Bank seeking to recover damages a nd declaratory and injunctive relief on behalf of herself and members of the class of individuals who have been injured by Defendants’ alleged “participation in a scheme to access and ut ilize the Automated Clearing House (“ACH”) network to collect unlaw ful debts in violation of 18 U. S.C. § 1962 and the law of numerous states, including the District of Columbia.” Compl. ¶ 1. Defendants each filed a Motion to Compel Arbitration, which the Court granted. See Mem. Op. (July 29, 2014), ECF No. [72]. Presently before the Court is Plaintiff’s Motion to Reopen Case Against Defendant Missouri Bank and Trust on the basis that the arbitrator named in the loan ag reement’s arbitration provision is unavailable. Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as

1 Plaintiff’s Motion to Reopen Case Against Defendant Missouri B ank and Trust (“Pl.’s Mot.”), ECF No. [73]; Defendant Missouri Bank and Trust’s Memor andum in Opposition to Plaintiff’s Motion to Reopen Case (“Def.’s Opp’n”), ECF No. [74 ]; Plaintiff’s Reply to Defendant’s Opposition (“Pl.’s Reply”), ECF No. [75]; Plaintiff ’s Notice Pursuant to the Court’s June 15, 2015 Order (“Pl.’s Notice”), ECF No. [77]; Defendant’s Notice Pursuant to the Court’s Minute Order of June 15, 2015 (“Def.’s Notice”); Plaintiff’s No tice of Supplemental Authority (“Pl.’s Supp. Auth.” ), ECF No. [79].2 a whole, the Court finds that Plaintiff’s Motion does not meet the requirements of Federal Rule of Civil Procedure 60(b). Accordi ngly, Plaintiff’s Motion is DENI ED.
I. BACKGROUND The genesis of this case is four online payday loans that Plain tiff applied for and received between September 27, 2012, and May 24, 2013. Compl. ¶¶ 77, 81 , 86, 90. Plaintiff alleges that her loans fall within the categor y of payday loan s that are ill egal in the District of Columbia. See
id. ¶ 5. On October 28, 2013, Plaintiff filed suit against the banks that executed the ACH transactions on behalf of the payday lenders. Plaintiff allege s that the banks “enforce[ed] debts they [knew] to be unlawful” by originating “ACH entries that re present payday loan credits and debits to and from consumer checking accounts.” Id. ¶ 11. The loan agreement that Plaintiff signed with the lender who used MBT to conduct the ACH transact ions contained an arbitration provision that stated:
ARBITRATION OF ALL DISPUTES : You and we agree that any and all claims, disputes or controversies betw een you and us, an y claim by eith er of us against the other (or the employees, officers, directors, agents, servicers or assigns of the other) and any claim arising or relating to your application for this micro-business loan (“Loan”), regarding this Loan or any other Loan you previously or may later obtain from us, this Note, this agreement to arbitrate all disputes, y our agreement not to bring, join or participate in c lass actions, rega rding collecti on of the Loan, alleging fraud or misrepresentation, whether under common law or pursuant to federal, state or local statute, regulation or ordinance, including disputes r egarding the matters subject to arbitration, or otherwise, shall be resolved by bi nding individual (and not joint) arbitration by and under the Code of Procedure of the National Arbitration Forum (“NAF”) in effect at the time the claim is filed

. No class arbitration. All disputes includi ng any Representative Claims a gainst us and/or related third parties shall be resolved by binding arbitration only on an individual basis with you. . . . Pl.’s Mot. at 2-3 (emphasis added). Defendants filed a Motion to Compel Arbitration pursuant to the arbitration provision in the loan agreements. See, e.g., Def. MBT’s Mot. to Compel Arbitration, ECF No. [26]. On July3 29, 2014, the Court found that Defendants could enforce the arbitration provision and, accordingly, granted Defendants’ motions and dismissed the case in its entir ety since “all of the plaintiff’s claims must be submitted to arbitration.” See Mem. Op. (July 29, 2014), at 15. Nearly three months later, on Oct ober 27, 2014, Plaintiff’s cou nsel sent a letter to the National Arbitration Forum (“NAF”) attempting to initiate arbit ration with Defendant MBT in accordance with the NAF Code of Procedure and the terms of the arbitration agreement. Pl.’s Mot., at 3. On November 5, 2014, Plaintiff’s counsel received a reply from NAF explaining that NAF no longer accepts arbitration claims involving consumers, p ursuant to a Consent Judgment entered in Hennepin County District Court in July 2009 between the Minnesota Attorney General and NAF. Id . at 3-4. After another approximately three months, Plaintiff filed a Mot ion to Reopen Case Against Defendant MBT on January 22, 2015. Plaintiff argues that becau se NAF is unavailable and because its identity as arbitrator was integral to the loan agr eement, arbitration is improper and the case against MBT should be reope ned for the Court to adjudicate

. See id. at 4, 12. Defendant filed an Opposition arguing that the Court does not have jurisdiction over Plaintiff’s untimely motion and, in the alternative, that the Court should appoint a substi tute arbitrator pursuant to Section 5 of the FAA. See Def.’s Opp’n, at 1-2. Plaintiff subsequently filed a Reply. On June 15, 2015, the Court ordered the parties to update the Court regarding any cha nges in, or additions to, the legal authority governing the issues in this case. See Minute Order (June 15, 2015). Two days later, the Court amended its June 15, 2015, Minute Order and instructed De fendant to address Plaintiff’s argument that the Court has juri sdiction over Plaintiff’s Motio n pursuant to ancil lary jurisdiction since Plaintiff had only raised this argument in her Reply. See Minute Order (June 17, 2015). Plaintiff and Defendant each filed the ordered Notice on June 2 9, 2015. Accordingly, Plaintiff’s4 Motion is now ripe for review. As the Court finds that Plainti ff’s Motion should be considered a Rule 60(b) motion and that the M otion fails to meet any of Rule 60(b)’s grounds for setting aside a judgment, the Court shall deny Plaintiff’ s Motion on that bas is and need not addr ess the parties’ arguments as to the underlying merits.
II. DISCUSSION
A. Ancillary Jurisdiction Plaintiff contends that the Cour t has ancillary jurisdiction to consider its Motion to Reopen the Case and litigate Plaintiff’s claims outside of arbitration since the Court would be exercising its authority to effectuate its July 29, 2014, Order that the p arties enter arbitration. See Pl.’s Reply, at 1. In Defendant’s view, Plaintiff is asking the Court to reconsider its prior judgment compelling arbitration and to overturn the order to arbitrate—not to take action to effectuate the Court’s Order to arbitrate. Def. ’s Notice, at 1. The Supreme Court has explained that ancillary j urisdiction is appropriately asserted: (1) “to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent,” and (2) “to enable a court to function success fully, that is, to manage its proceedings, vindicate its authority, and effectuate its decree s.” Kokkonen v. Guardian Life Ins. Co. of America , 511 U.S. 375, 379-380 (1994). Addressing the second prong of Kokkonen which provides for jurisdiction to effectuate judgments, the United S tates Court of Appeals for the District of Columbia Circuit has held that “[ Kokkonen ] teaches that district courts enjoy no freeranging ‘ancillary’ jurisdicti on to enforce consent decrees, bu t are instead constrained by the terms of the decree and related order.” Pigford v. Veneman , 292 F.3d 918, 924 (D.C. Cir. 2002). Courts in this Circuit have been consiste nt in narrowly exercising ancillary jurisdiction. See id. ; Pigford
v. Vilsack , 777 F.3d 509, 514 (D.C. Cir. 2015); State of N.Y. v. Microsoft Corp. , No. 98-1233, 20085 WL 254126, *22 (D.D.C. Jan. 29, 20 08). In the context of order s compelling arbitration, courts have found it appropriate to exercise ancilla ry jurisdiction ov er motions filed dur ing the course of the arbitration proceedings “to determine any subsequent applic ation involving the same agreement to arbitrate.” Owen-Williams v. BB & T Inv. Servs., Inc. , 717 F. Supp. 2d 1, 13-14 (D.D.C. 2010). Specifically, af ter compelling the parties to a rbitrate their dispute and dismissing the action without prejudice, thi s Court exercised ancillary ju risdiction over an FAA Section 10 motion to confirm or vacate the arbitration award, see id. , and the Fifth Circuit in Adam Technologies Int’l S.A. de C.V. v. Sutherland Global Servs., Inc. , 729 F.3d 443, 447 (5th Cir. 2013), exercised ancillary jurisdicti on over a plaintiff’s motion requ esting the appointment of a substitute arbitrator pursuant t o Section 5 of the FAA. Here, Plaintiff is not asking the Court to appoint a new arbitrator as provided by Section 5 or otherwise seeking to “effect uate” or “vindicate” the Court’s order to arbitrate under a provision of the FAA. 2 See Pl.’s Reply, at 2. Plaintiff is not seeking to assist or faci litate the carrying out of the arbitration. See Adam Technologies , 729 F.3d at 450 (“If a party interferes with the carrying out of an order to arbitrate, the re is effectuation and vindica tion inherent in th e district court entering relevant new orders.”). Instead, Plaintiff moves to have the Court’s Order set aside an d litigation reinstated—a motion th at is more properly evaluated pursuant to Federal Rule of Civil Procedure 60(b). Accordingly, the Court declines to exercise a ncillary jurisdiction over Plaintiff’s Motion. The Court will consider Plaintiff’s Motion as a motion for relief from final judgment under Rule 60(b).

2 Plaintiff’s heading discussing ancillary jurisdiction states t hat her motion to reopen is made “pursuant to Section 5 of t he FAA.” Pl.’s Reply, at 2. H owever, Section 5 only provides for the Court to appoint a substitute arbitrator—a request that Plaintiff is not making in her Motion to Reopen. Moreover, Plaintiff herself “encourages the Court” to find “that Section 5 of the FAA is inapplicable.” P l.’s Mot., at 11.6 B. Federal Rule of Civil Procedure 60(b) Defendant contends that Rule 60(b)(6) offers the only potential basis for Plaintiff to move to set aside the Court’s judgment, while Plaintiff argues that relief would be appropriate under either Rule 60(b)(6) or Rule 60( b)(1). The Court shall discuss each ground in turn. Federal Rule of Civil Procedure 60(b) provides: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following r easons: (1) mistake, inadvertence, sur prise, or excusable neglect; (2) newly discovered evidence th at, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), m isrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it pros pectively is no longer equitable; or (6) any other reason th at justifies relief. Fed. R. Civ. P. 60(b). The Rule “was intended to preserve ‘the delicate balance between the sanctity of final judgments . . . and the incessant command of the court’s conscience that justice be done in light of all the facts.’ ” Good Luck Nursing Home, Inc. v. Harris , 636 F.2d 572, 577 (D.C. Cir. 1980) (quoting Bankers Mortgage Co. v. United States , 423 F.2d 73, 77 (5th Cir. 1970)). As the D.C. Circuit has emphasize d, Rule 60(b) “gives the distr ict judge broad latitude to relieve a party from a judgment,” Richardson v. Nat’l R.R. Passenger Corp. , 49 F.3d 760, 765 (D.C. Cir. 1995), but “should be only sparingly used,” Good Luck Nursing Home , 636 F.2d at 577. The party seeking relief under Rule 60(b) bears the burden of showing tha t he or she is entitled to the relief. Norris v. Salazar , 277 F.R.D. 22, 25 (D.D.C. 2011). Common to all grounds for r elief under Rule 60(b) are the requirements that the motion be timely, see Fed. R. Civ. P. 60(c)(1), and that the movant “demonstrate a meritorious claim or defense” to the moti on upon which the district court7 previously dismissed the complaint, see Lepkowski v. U.S. Dep’t of Treasury , 804 F.2d 1310, 1314 (D.C. Cir. 1986). As to the meritorious defense prong, the Court finds that Plain tiff has “provide[d] reason to believe that vacating the judgment will not be an empty exercise or a futile gesture.” Marino v. Drug Enforcement Admin. , 685 F.3d 1076, 1080 (D.C. Cir. 2012). While the question is one of first impression in this Circuit, Plaintiff has cited to cases from other jurisdictions where courts have held arbitration agreements unenforceable because of the u navailability of the arbitrator designated in the arb itration agreement. See, e.g. , Ranzy v. Tijerina , 393 F. App’x 174, 175 (5th Cir. 2010). Plaintiff accordingly clears the low bar required to present a meritorious claim. See
Marino , 685 F.3d at 1080. As the timeliness requirements differ for relief under Rule 60(b)(6) and Rule 60(b)(1), the Court shall di scuss them along with the othe r requirements of each subsection.
1. Rule 60(b)(6) Rule 60(b)(6) provides, “the court may relieve a party or its l egal representative from a final judgment, order, or proceeding for any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). The Supreme Court has consistently held that Rule 60 (b)(6) motions should only be granted in “extraordinary circumstances.” Ackerman v. United States , 340 U.S. 193, 199 (1950); see also Gonzalez v. Crosby , 545 U.S. 524, 535 (2005) (“our cases have required a movant s eeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances ’ justifying the reopening of a final judgment.”). The D.C. Circuit has “similarly observed that Rul e 60(b)(6) ‘should be only sparingly used’ and may not ‘be employed simply to rescue a lit igant from strategic choices that later turn out to be improvident.’ ” Kramer v. Gates , 481 F.3d 788, 792 (D.C. Cir. 2007) (quoting Good Luck Nursing Home, 636 F.2d at 577).8 Plaintiff argues that such an extraordinary circumstance has ar isen here because, with NAF’s unavailability, she will b e left without a forum to have her claims against Defendant heard if the Court refuses to reopen litigation. Pl.’s Reply, at 6. The Court does not agree that the denial of the present Motion will forecl ose consideration of Plaintiff ’s claims against MBT. Plaintiff can file to request that the arbitration take place under a differe nt entity. Defendant has indicated in its briefing that it “stands willing and ready to arbitrate Pla intiff’s claims before a substitute arbitrator applying the NAF Code of Procedure, or before Plaint iff’s choice of the American Arbitration Association or JAMS, two well-known national arbitr ation administrators.” Def.’s Opp’n, at 2. Moreover, Plaintiff’s counsel appears to have been aware of NAF ’s unavailability to arbitrate consumer agreements at the time Defendants moved to c ompel arbitration and made a strategic decision not to raise this issue at that time. In Pl aintiff’s Reply in support of her present motion, Plaintiff effectively con cedes that she was aware of NA F’s ban on hearing consumer claims at the time the parties briefed Defendant’s Motion to Co mpel Arbitration when she argues that “raising the issue [of NAF’s unavailability] in her opposi tion to MBT’s motion to compel arbitration . . . would have been wholly inconsistent with Plai ntiff’s position that she never entered into an arbitration agreement with MBT in the first place.” 3 Pl.’s Reply, at 8. Plaintiff in no way contends that she was unaware of NAF’s unavailability at the time the Court was evaluating Defendant’s Motion to Compel Arbitration. Plaintiff does argue that she “could not know for

3 Likewise, in a hearing before Judge Joseph F. Bianco in the Ea stern District of New York discussing a similar Motion to Reopen filed in the nearly ident ical case Moss v. BMO Harris Bank, N.A. et al. , Case No. 13-cv-05438-JFB-GRB, P laintiff’s counsel stated, “we certainly could have done that,” when asked whether P laintiff could have raised NAF’ s unavailability “as an alternative argument” against arbitration at the Motion to Compel Arbitrati on stage. Pl.’s Notice, Ex. A, Tr. 4:6-14 (May 21, 2015), ECF No. [77-1].9 certain whether the NAF would determine that [Plaintiff’s] clai m fell within the purview of the NAF’s consent judgment.” See id. , at 9. However, as Plaintiff herself makes clear in her brief ing, the consent judgment between the Minnesota Attorney General and NAF unquestionably and absolutely barred NAF from hearing all “consumer” complaints, 4 and Plaintiff has consistently described herself and her complaint as a “consumer” complaint b efore NAF and this Court. Plaintiff’s detailed recitation of NAF’s clear anti-consumer/pr o-creditor history giving rise to the consent judgment belies Plaintiff’s argument that she was uncer tain that NAF would accept her consumer complaint. See Pl.’s Mot., at 12-13. Accordingly, it appears to the Court th at Plaintiff made the strategic litigation decision not to inform the Court of NAF’s unavailability at the time the Court was considering compelling arbitration and dismissing this action. As stated above, Rule 60(b) “may not ‘be employed simply to rescue a litigant from st rategic choices that later turn out to be improvident.’ ” Kramer , 481 F.3d at 792. Rule 60(b) “is not an opportunity for unsuc cessful litigants to take a mulligan.” Id. ; see also Salazar ex rel. Salazar v. Dist. of Columbia, 633 F.3d 1110, 1120 (D.C. Cir. 2011) (“Thus, if the movant had an opport unity for appeal and forwent that appeal, subsection (6) of Rule 60(b) has no application.” (inte rnal quotations and alterations omitted)). In any event, “in this Circuit, c ourts almost uniformly deny Ru le 60(b)(6) motions as untimely when they are filed more than three months after judgm ent.” Carvajal v. Drug Enforcement Admin. , 286 F.R.D. 23, 26-27 (D.D.C. 2012) (citing cases). Here, Pla intiff’s Motion

4 NAF’s letter to Plaintiff stated broadly and clearly: “Please be advised that we are no longer able to accept arbitration claims involving consumers pursuant to a Consent Judgment entered in Hennepin County District Court in July 2009 between the Minnesota Attorney General and the National Arbitration Foru m.” Pl.’s Mot, Ex. B (Letter from NAF), ECF No. [73-3] (emphasis added).10 was filed approximately six months after judgment was entered. Plaintiff has directed the Court to four cases in this Circuit where the courts entertained a Ru le 60(b)(6) motion filed more than three months after final judgment. See Erick Rios Bridoux v. Eastern Air Lines, 214 F.2d 207, 209 (D.C. Cir. 1954) (Rule 60(b)(6) motion filed six months after d efault judgment found timely where defendant filed motion within one month of learning of judgment ); Williams v. Capital Transit Co., 215 F.2d 487, 490 (D.C. Cir. 1954) (Rule 60(b)(6) motion filed three years after default judgment found timely where defendant filed motion within three weeks of learning of default judgment); L.P. Steuart, Inc. v. Matthews, 329 F.2d 234, 235–36 (D.C. Ci r. 1964) (Rule 60(b)(6) motion filed two years after j udgment found timely where counse l’s “gross neglect” and misleading of plaintiff caused the delay); Salazar ex rel. Salazar, 633 F.3d at 1119 (D.C. Cir. 2011) (Rule 60(b)(6) motion filed twen ty months after judgment found timely in institutional reform case with substantial post-judgment judicial involvement). However, each of these cases present extraordinary circumstances leading to the delay that are absen t from the current case. Here, Plaintiff explains that the three-month delay between the Court ’s July 29, 2014, Order and submitting the arbitration request to NAF on October 27, 2014, is attributable to the fact that, during that time, “counsel considered filing a notice of appeal,” “spent time reviewing the NAF Code,” “weighed whether initia ting potentially confidential ind ividual arbitrations . . . would vindicate the rights of the Plaintiff and the putative class,” and “research[ed] how arbitrators have treated similar claims.” See Pl.’s Reply, at 7. Plaintiff does not explain the additional two-and-ahalf-month delay between receiving NAF’s refusal to arbitrate P laintiff’s claims and filing the current Motion to Reopen. The Court finds the reasons for Plaintiff’s delay in filing her Motion far from extraordinary, especially in light of Plaintiff’ s apparent knowledge of NAF’s unavailability at the time the Court11 was evaluating Defendant’s Motion to Compel Arbitration. If Pl aintiff’s counsel truly had any potential lingering uncertainty about NAF’s availability, such uncertainty would have been a reason for Plaintiff to make a prompt inquiry with NAF. Having lost the case, Plaintiff would be best served by acquiring all relevant information about how to proceed, including the arbitrator’s availability. Inquiri ng as to NAF’s availabi lity to hear the c laim would assist counsel in deciding whether to file a notice of appeal. Sending an inquiry to NAF immediately would not have impeded counsel’s ability to st udy the NAF code or research how arbitrators have treated similar claims. Moreover, Plaintiff ha s not offered a r eason as to why she waited another two-and-a-half months after receiving the repl y from NAF to file the instant m otion. “Rule 60(b)(6) relief normally will not be granted unless the moving party is able to show circumstances beyond its control prevented ta king earlier, more timely action to protect its interests.” See Carvajal , 286
F.R.D. at 27 (internal quotation omitted)). A ccordingly, the Court finds th at Plaintiff has not established the grounds for the Court to grant relief pursuant to Rule 60(b)(6).
2. Rule 60(b)(1) Plaintiff argues, in the alternative, that her failure to infor m the Court of NAF’s unavailability is excusable neglect and, accordingly, a basis f or relief from the Court’s Order to arbitrate under Rule 60(b)(1). T he Court disagrees. Rule 60(b)(1) provides, “the court may relieve a party or its legal representat ive from a final judgment, orde r, or proceeding” because of “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The Supreme Court has set out four factors for determining when a late filing may con stitute “excusable neglect.” Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship , 507 U.S. 380, 395 (1993). These factors are: “(1) the danger of prejudice to t he [opposing party], (2) the l ength of delay and its potential impact on judicial proceedings, (3) the reason for the delay, includin g whether it was within the reasonable12 control of the movant, and (4) whether the movant acted in good faith.” In re Vitamins Antitrust
Class Actions , 327 F.3d 1207, 1209 (D.C. Cir. 2003) (citing Pioneer , 507 U.S. at 395). The inquiry into whether a party’s action constitutes excusable neglect “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s o mission.” Pioneer , 507 U.S. at 395. Plaintiff argues that all four Pioneer factors weigh in her favor. Pl.’s Reply, at 9. The Court agrees that Defendant has offered no evidence of prejudic e that it has suffered because of the delay. See id. However, the Court disagrees with Plaintiff’s contention that , given counsel’s efforts between receiving the Order to compel arbitration and s ending the letter to NAF, the delay was “not substantial.” Id. The Court finds that the six-month delay in bringing NAF’s unavailability to the Court’s attention after the Court entered judgment was significant in light of the fact that Plaintiff’s couns el was apparently aware of NAF’s unavailability at the time he filed Plaintiff’s opposition to Defendant’s Motion to Compel Arbitrat ion on February 18, 2014, or at least had significant doubts as to NAF’s availability. The next “factor – fault – is ‘perhaps the most important singl e factor.’ ” Jarvis v. Parker , 13 F.Supp.3d 74, 78-79 (D.D.C. 2014) (quoting Institute for Policy Studies v. U.S.C.I.A. , 246 F.R.D. 380, 383 (D.D.C. 2007)); see also Wilson v. Prudential Fin. , 218 F.R.D. 1, 3 (D.D.C. 2003) (describing fault as the “key factor” in excusable neglect anal ysis). The Court considers the reason for the delay as being squarely w ithin the control of Plaintiff . As discussed above, Plaintiff’s counsel was apparently aware that NAF was not available to hear consumer complaints. See Pl.’s Reply, at 9. Plaintiff now argues that “the only reason that t he parties are in this position is because MBT failed to address [NAF’s una vailability] when it . . . requ ested the Court to compel Plaintiff to arbitration before the NAF.” Id. at 8. While the Court would have appreciated Defendant bringing the issue to the Court’ s attention, only Plaintiff had an incentive to raise the argument as13 an alternate grounds to avoid ar bitration. Accordingly, the Co urt finds Plaintiff’s decision to be the cause of the delay. Ultimately, Plaintiff’s decision to not inform the Court of NAF ’s unavailability and to argue that arbitration was inappropriate was a strategic litigation decision. Where that choice was within Plaintiff’s control and caused a s ignificant delay, the Court shall not rescue Plaintiff even if that choice was not taken in bad faith

. 5 The Court emphasizes that although the Court is denying Plainti ff’s Motion to Reopen, there is still a course of action for Plaintiff to vindicate he r claims against Defendant. Plaintiff may request that arbitration proceed under a different arbitration entity. Such a request to substitute the arbitrator would not be a contested issue as Def endant has indicated that it “stands willing and ready to arbitrate Plaintiff’s claims before a subs titute arbitrator.” See Def.’s Opp’n,
at 2.
III. CONCLUSION For the foregoing reasons, the Court concludes that Plaintiff i s not entitled to relief from the Court’s Order compelling arb itration under Federal Rule of Civil Procedure 60(b). Accordingly, Plaintiff’s Motion to Reopen Case Against Defendant Missouri Bank and Trust is
DENIED.

5 The Court is aware of the Memorandum Opinion and Order recentl y issued in Moss v. BMO Harris Bank, N.A. et al. , Case No. 13-cv-05438-JFB-GRB, on July 16, 2015. The underlyi ng facts in Moss are similar to the present case and, as here, the recent opinio n addresses the plaintiff’s motion to reopen litigation after finding that NAF was unavaila ble to arbitrate the plaintiff’s claims. While the Moss court granted the plaintiff’s motion to reopen litigation, the Court notes that the Moss court was operating in a differe nt procedural posture and controlled by different legal precedent. Unlike in the present case where the action was dismissed after the Court ordered arbitration, the Moss court had stayed the litigation after granting the defendant’s motion to compel arbitration. Moreover, the Moss court was bound by the Second Circuit’s precedent in In re Salomon Shareholders’ Derivative Litig. , 68 F.3d 554 (2d Cir. 1995), which held that Section 5 does not authorize the substitution of an arbitrator when priva te parties agree to arbitrate exclusively before a specific fo rum, which subsequently becomes unavailable.14 An appropriate Order accompani es this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge