United States District Court, D. Kansas
GARY L. ABRAHAM, Plaintiff,
CENTRIS FEDERAL CREDIT UNION, Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
September 16, 2019, pro se plaintiff Gary L. Abraham filed
suit against Centris Federal Credit Union. Complaint
(Doc. #1). As best the Court can ascertain, plaintiff
alleges that defendant engaged in predatory lending relating
to various loans, and brings his claims under the Truth in
Lending Act (“TILA”), 15 U.S.C. § 1601 et
seq., and the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
On November 19, 2019, the Court transferred this case to the
District of Nebraska pursuant to a valid forum selection
clause in plaintiff's agreement with defendant.
Memorandum And Order (Doc. #34). This matter is
before the Court on Plaintiff's Request For The Court
To Reconsider (Doc. #35) filed November 20, 2019.
Defendant's deadline to respond was December 4, 2019; it
filed no response, but for reasons stated below, the Court
overrules plaintiff's motion.
motion to reconsider must be based on (1) an intervening
change in controlling law, (2) the availability of new
evidence or (3) the need to correct clear error or prevent
manifest injustice. See Coffeyville Res. Ref. & Mktg.
LLC v. Liberty Surplus Ins. Corp., 748 F.Supp.2d 1261,
1264 & n.2 (D. Kan. 2010); see also D. Kan. R.
7.3(b); Comeau v. Rupp, 810 F.Supp. 1172, 1174-75
(D. Kan. 1992). A motion to reconsider is not a second
opportunity for the losing party to make his strongest case,
to rehash arguments or to dress up arguments that previously
failed. Brown v. Presbyterian Healthcare Servs., 101
F.3d 1324, 1332 (10th Cir. 1996); RTC v. Greif, 906
F.Supp. 1446, 1456 (D. Kan. 1995); Voelkel v. Gen. Motors
Corp., 846 F.Supp. 1482, 1483 (D. Kan. 1994). A
party's failure to present his strongest case in the
first instance does not entitle him to a second chance in the
form of a motion to reconsider. Cline v. S. Star Cent.
Gas Pipeline, Inc., 370 F.Supp.2d 1130, 1132 (D. Kan.
2005). Whether to grant a motion to reconsider is left to the
Court's sound discretion. Brumark Corp. v. Samson
Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995).
challenge to the Court's decision centers on the scope
and validity of the relevant forum selection clause.
Specifically, plaintiff argues that the forum selection
clause does not govern his claims because (1) his allegations
relate to pledge and refinance loans, not a home loan and (2)
the agreement that defendant provided in its motion to
transfer was fraudulent.
first asserts that the forum selection clause does not apply
here because his claims relate to certain pledge and
refinance loans. As best the Court can ascertain, plaintiff
argues that the Court based its prior decision on the
erroneous assumption that his claims related a home loan.
explanation of the particular type of loan at issue, which
his prior pleadings failed to make clear, does not change the
Court's analysis. His claims remain within the scope of
the forum selection clause to which he agreed. On June 7,
2012, plaintiff became a member of defendant by signing a
Membership Application Account Card. By doing so, plaintiff
agreed to “the terms and conditions of the Membership
and Account Agreement.” Account Card (Doc.
#17-2) filed October 21, 2019 at 4. The Account Agreement
clearly states that it “covers [plaintiff's] rights
and responsibilities concerning [his] accounts, ” and
that “any legal action regarding this Agreement shall
be brought in the county in which the Credit Union is
located, ” which is Douglas County, Nebraska.
Account Agreement (Doc. #17-2) at 5, 10. The
agreement also specifies that any “conflict regarding
what you and our employees say or write will be resolved by
reference to this Agreement.” Id. at 8.
prior order, the Court explained that although
plaintiff's claims are somewhat unclear, they apparently
relate to an aspect of his contract with defendant,
communications regarding his accounts and loans under those
accounts. See Memorandum And Order (Doc. #34) at 3.
Because these claims relate to his agreement with defendant
and communications with its employees, they fall within the
coverage of the forum selection clause. Id.
Plaintiff's clarification regarding the particular type
of loan at issue does not change this analysis. He is
alleging that during their interactions, defendant's
employees issued “false promises and documents that
were not clearly readable, ” and later wrongfully took
money from his account based on the alleged loans. See
Plaintiff's Request For The Court To Reconsider
(Doc. #35) at 1. The forum selection clause governs these
also asserts that even if the forum selection clause governs
his claims, the clause does not actually exist. According to
plaintiff, defendant fraudulently “tamper[ed]
with” the agreement that it provided in support of its
motion to transfer. Id. Specifically, not only did
defendant retroactively insert the forum selection clause
into the agreement, but his signature appearing on the
attached document is not actually his - plaintiff argues that
the signature is the product of white-out and a “type
over signature.” Id. To prove that defendant
fraudulently tampered with the document and that the real
agreement does not contain the relevant forum selection
clause, plaintiff requested one week to find and submit his
agreement with defendant.
has provided no evidence to support his claim that
defendant's documents are fraudulent. Defendant and its
attorney each submitted affidavits stating that their
documents were true and accurate copies of plaintiff's
Account Card and the corresponding Membership Agreement.
See Declaration Of Eli A. Rosenberg (Doc. #17-1);
see also Declaration Of Ann Helm (Doc. #17-2) filed
October 21, 2019. Nearly two weeks have passed since
plaintiff requested time to submit his real agreement, and he
has provided nothing to show that defendant's documents
are fraudulent. Therefore, plaintiff has not established that
the Court erred in transferring his case pursuant to the
valid forum selection clause.
IS THEREFORE ORDERED that Plaintiff's
Request For The Court To Reconsider (Doc. #35) ...