MEMORANDUM OPINION AND ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN H. GARNER §

 §

Plaintiff, §

 §

v. §

 § Civil Action No. 3:05-CV-1029-R

MBNA AMERICA BANK, N.A., §

 §

Defendant. §

 §

MEMORANDUM OPINION AND ORDER

Now before the Court is Plaintiff John H. Garner’s Memorandum of Law in Support of the

Motion to Reconsider Order Confirming Award and for Summary Judgment and his Declaration

in Support of Motion to Reconsider Order Confirming Award and Summary Judgment (Dkt. Nos.

49-50). Also before the Court is Garner’s Notice of Motion to Enlarge Time to Permit Plaintiff to

file his Motion to Reconsider (Dkt. Nos. 53-55). Plaintiff filed this Notice one month after filing

his Motion to Reconsider. The Court GRANTS Garner’s Motion to Enlarge Time, but as discussed

below, the Court DENIES John H. Garner’s Motion to Reconsider on the merits. 

I. BACKGROUND

This case concerns a billing dispute pertaining to a line of credit between Plaintiff, John H.

Gardner and Defendant, MBNA America Bank, N.A. (MBNA). On August 14, 2006, this Court

issued a Memorandum Opinion and Order (Dkt. No. 48) granting in part and denying in part

MBNA’s motion for summary judgment and denying Garner’s Motion to Compel. The Order

granted MBNA’s motion to confirm the arbitration award finding that although Garner timely

 

 Case 3:05-cv-01029-O Document 59 Filed 11/17/06 Page 1 of 4 PageID 466
1

See Opals on Ice Lingerie, Designs by Bernadette, Inc. v. Bodylines, Inc., 320 F.3d 362 (2d Cir.

2003).

MEMORANDUM OPINION AND ORDER – PAGE 2

moved to vacate the award, Garner waived any objection to arbitrability because of his participation

in and lack of a formal objection to the proceedings. The Order further granted MBNA’s motion

for summary judgment on Plaintiff’s breach of contract claim because Plaintiff affirmed the

contract through his participation in the arbitration. Additionally, the Order denied MBNA’s

motion for summary judgment on Plaintiff’s Truth-in-Lending Act claim because there is a genuine

issue of material fact regarding whether Garner filed a timely claim regarding MBNA’s failure to

take corrective action on the disputed billing. Garner’s procedural due process claim was dismissed

because of a failure to state a claim given that private parties are not subject to liability based on

due process claims. (See Downs v. Liberty Life Assurance Co. of Boston, 2005 WL 2455193*5

(N.D. Tex. 2005) (citing DeShaney v. Winnebago County Department of Social Services, 489 U.S.

189, 196 (1989)). Lastly, Garner’s motion to compel was denied because the motion to compel

concerned the arbitration award, which has been dismissed. 

September 11, 2006, Garner filed a motion to reconsider the Memorandum Opinion and

Order (Dkt. No. 49) discussed above. Garner argues that he did not waive his right to challenge

arbitrability because he “clearly and explicitly reserves the right to object to arbitrability”1

 by filing

an objection to the arbitration. Garner also argues that he did not waive his breach of contract

claim because he never clearly participated in the arbitration, he did not waive his right to challenge

arbitrability, and therefore did not waive his right to raise a breach of contract claim.

On September 22, 2006, MBNA filed an Objection and Reply to Plaintiff’s Motion for

Reconsideration (Dkt. No. 52). MBNA challenges Plaintiff’s Motion for Reconsideration

procedurally under Fed. R. Civ. P. 59 and 60(b). MBNA also argues that Garner’s submissions as

 

 Case 3:05-cv-01029-O Document 59 Filed 11/17/06 Page 2 of 4 PageID 467
MEMORANDUM OPINION AND ORDER – PAGE 3

part of his Motion to Reconsider (Dkt. No. 49) are untimely, not authenticated, and irrelevant (Dkt.

No. 52, page 3). MBNA argues that Garner has no grounds for requesting relief and Garner waived

his objection to arbitrability. 

II. ANALYSIS

The Court considered Garner’s Motion to Reconsider, MBNA’s Objection and Reply, and

the applicable legal authorities. The Court believes its prior rulings were correct and finds no

groundsto reconsidertheCourt’s previousfindings:(1)that MBNA’smotion to confirm arbitration

award is granted; (2) that the arbitration award issued January 14, 2005 is confirmed; (3) that

MBNA’s motion for summary judgment on Garner’s breach of contract claim is granted; (4) that

MBNA’s motion for summary judgment on Plaintiff’s Truth-in-Lending Act claim is denied; (5)

that Garner’s due process claim is dismissed; and (6) that Garner’s motion to compel is dismissed.

The Court’s prior ruling is unaffected by Garner’s September 14, 2006, objection to the

arbitration proceeding. “A motion for reconsideration is ‘not the proper vehicle for rehashing

evidence, legal theories, or arguments that could have been offered or raised before the entry of

judgment.’” Fisher v. Halliburton, 2005 WL 2001351 *1 (S.D. Tex. 2005) (quoting Templet v.

Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004)). A motion for reconsideration is examined

under Rule 59(e) if the motion was filed with 10 days of the order or under 60(b) if the motion was

not filed until 30 days after the Court’s order. See Trust Co. Bank v. U.S. Guypsum Co., 950 F.2d

1144, 1147 (5th Cir. 1992) (citing Teal v. Eagle Fleet, Inc., 933 F.2d 341, 347 (5th Cir. 1991));see

also Pryor v. U.S. Postal Service, 769 F.2d 281, 285 (5th Cir. 1985). In order to successfully argue

aRule 60(b) motion based on new evidence, “the movant must demonstrate (1)that it exercised due

 

 Case 3:05-cv-01029-O Document 59 Filed 11/17/06 Page 3 of 4 PageID 468
MEMORANDUM OPINION AND ORDER – PAGE 4

diligence in obtaining the information and (2) the evidence is material and controlling and clearly

would have produced a different result if presented before the original judgment.” Provident Life

and Accident Ins. Co. v. Goel, 274 F.3d 984, 999 (5th Cir. 2001). Although Garner presents as an

exhibit to his Motion for Reconsideration (Dkt. No. 49), he cannot meet the necessary requirements

of 60(b)(2). He did not present this piece of evidence before the Court’s August 14, 2006, Order

(Dkt. No. 48). Therefore, the evidence submitted by Garner does not affect the Court’s prior ruling.

CONCLUSION

For the reasons stated above, Plaintiff’s Motion to Reconsider is hereby DENIED.

It is so ORDERED.

ENTERED: November 17, 2006.

___________________________________

JERRY BUCHMEYER, 

SENIOR U.S. DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

 

 Case 3:05-cv-01029-O Document 59 Filed 11/17/06 Page 4 of 4 PageID 469