United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge.
Dream Catcher, L.L.C., seeks reconsideration of the
court's Memorandum Opinion and Order denying its Motion
to Stay and Motion to Compel Arbitration ("Motion for
Reconsideration"). See Def's Mot. for
Recons., ECF No. 29 [hereinafter Def's Mot.]; Mem. Op.
& Order, ECF No. 27 [hereinafter Mem. Op. & Order].
In its Memorandum Opinion, the court relied on binding D.C.
Circuit precedent, Zuckerman Spaeder LLP v.
Auffenberg, 646 F.3d 919 (D.C. Cir. 2011), in holding
that Defendant-after waiting nearly six months to move for
arbitration-had forfeited its right to arbitrate Plaintiffs
claims. See Mem. Op. & Order. For the reasons
that follow, the court denies Defendant's Motion for
court's Memorandum Opinion and Order did not constitute a
final judgment, the court evaluates Dream Catcher's
Motion for Reconsideration under Rule 54(b) of the Federal
Rules of Civil Procedure, which governs reconsideration of
non-final decisions. See Cobell v. Norton, 355
F.Supp.2d 531, 538-39 (D.D.C. 2005). Rule 54(b) provides that
"any order . . . that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties . . . may be revised at any time before the entry of
a judgment adjudicating all the claims and all the
parties' rights and liabilities." Fed.R.Civ.P.
54(b). Relief under Rule 54(b) may be granted "as
justice requires." Cobell, 355 F.Supp.2d at 539
(internal quotation marks omitted). Courts in this district
interpret that abstract phrase narrowly and will grant a
motion to reconsider "only when the movant demonstrates:
(1) an intervening change in the law; (2) the discovery of
new evidence not previously available; or (3) a clear error
in the first order." Zeigler v. Potter, 555
F.Supp.2d 126, 129 (D.D.C. 2008) (internal quotation marks
omitted). In its Motion for Reconsideration, Dream Catcher
does not point to either a change in the law or any new
evidence. Accordingly, the court need only decide whether its
prior ruling constituted "clear error."
Id. at 129. Ultimately, relief under Rule 54(b) is
"limited by the law of the case doctrine and subj ect to
the caveat that where litigants have once battled for the
court's decision, they should neither be required, nor
without good reason permitted, to battle for it again."
Singh v. George Wash. Univ., 383 F.Supp.2d 99, 101
(D.D.C. 2005) (internal quotation marks omitted).
Catcher argues that the court committed clear error because
it misapplied Zuckerman, the controlling case in
this Circuit concerning a party's dilatory invocation of
its right to arbitrate. Dream Catcher advances two main
arguments. First, it contends that the court erred by finding
that Dream Catcher did not timely assert its right to
arbitrate, as required by Zuckerman. Defi's Mot.
at 2-4. Second, Dream Catcher argues that any delay in
invoking its right to arbitrate did not impose significant
enough costs on Plaintiff to warrant denying the Motion to
Stay and Compel Arbitration. Id. at 4-5. Neither
argument justifies relief under Rule 54(b).
begin, the court disposes of the Motion for Reconsideration
on a simple ground: Dream Catcher failed to cite
Zuckerman in its Motion to Stay and Compel
Arbitration. See Def.' s Mot. to Stay, ECF No.
21 [hereinafter Def s Mot. to Stay]; Defi's Am. Mot. to
Stay, ECF No. 22. To his credit, during the hearing held on
June 20, 2017, counsel for Dream Catcher candidly admitted
overlooking Zuckerman. Rule 54(b) is not intended,
however, to provide a party the chance to address controlling
authority that it failed to discuss in its original motion.
The fact that Dream Catcher missed controlling precedent and
now wishes to address it is not the kind of "good
reason" that justifies upsetting a prior court order.
Singh, 383 F.Supp.2d at 101.
the court excuses Dream Catcher's failure to cite
Zuckerman, neither of its arguments demonstrate that
the court clearly erred in applying that case. As to its
first argument, Dream Catcher maintains that it did not
"waive"-that is, intentionally relinquish or
abandon-its right to arbitrate. Dream Catcher explains that
its counsel did not receive the contract at issue in this
case until January 10, 2017-more than two months after Dream
Catcher removed the case to this court, see Notice
of Removal, ECF No. 1-and first became aware of the
arbitration clause on that date. Three days later, on January
13, 2017, Dream Catcher's counsel wrote a letter to
Plaintiffs counsel, in which Dream Catcher's counsel
raised for the first time his client's right to arbitrate
the dispute ("January 13th Letter"). Then, on
January 27, 2017, Dream Catcher filed its Motion to Dismiss
the Amended Complaint and, in a footnote, stated that it was
filing its motion without waiving its right to arbitrate.
Def's Mot. at 2 (citing Def's Mot. to Dismiss Counts
III, VI, and VII, of PL's First Am. Compl., ECF No. 16,
at 1 n.l). Based on the foregoing timeline, Dream Catcher now
argues that "it neither knew of, nor fully appreciated
[its right to arbitrate] until [January 2017, when] it was
advised of the legal definition and cost-benefits through its
counsel." Id. at 2-3. Upon becoming aware of
its right to arbitrate, Dream Catcher posits, it promptly
invoked the right in both the January 13th Letter and in the
footnote in its Motion to Dismiss the Amended Complaint.
Id. at 2-4. Dream Catcher criticizes the court for
failing to recognize that these early assertions satisfy
Zuckerman'?, timely invocation requirement.
Catcher's argument is flawed for a host of reasons.
First, the waiver doctrine is not applicable here.
Zuckerman makes clear that "forfeiture, not
waiver, is the appropriate standard for evaluating a
late-filed motion under Section 3 of the [Federal Arbitration
Act ("FAA")], " Zuckerman, 646 F.3d
at 922, and that "[f]orfeiture is the 'failure to
make a timely assertion of a right' [which], unlike
waiver, entails no element of intent." Id.
(quoting United States v. Olano, 507 U.S. 725, 733
(1993)). Thus, it does not matter, as Dream Catcher contends,
that its counsel did not learn of the arbitration clause
until six months after suit was filed. All that matters is
when Dream Catcher first invoked the right to
arbitrate. Second, neither the January 13th Letter nor the
footnoted reservation of rights in its Motion to Dismiss the
Amended Complaint constitutes a timely invocation of the
right to arbitrate. Under Zuckerman, a party
"invokes" the right to arbitrate by
"assert[ing]" it as an affirmative defense under
Rule 8(c) of the Federal Rules of Civil Procedure or as the
basis for a motion to dismiss under Rule 12. Id. at
922-23; see also Green Tree Financial Corp.-Alabama v.
Randolph, 121 S.Ct. 513, 85-86 (2000) (addressing
appealability of motion to dismiss for failure to arbitrate
and to compel arbitration); Bombadier Corp. v. Nat'l
R.R. Passenger Corp., 333 F.3d 250, 253-54 (D.C. Cir.
2003) (discussing Green). Dream Catcher, however,
filed no such pleading at the outset of this case. Lastly,
even if Dream Catcher's efforts to flag the arbitration
clause in January 2017 constituted an "invocation,
" they came far too late. Dream Catcher did not assert
the right to arbitrate as an affirmative defense in its
Answer to the original complaint, filed on October 31, 2016.
See Answer, ECF No. 4. That Answer was Dream
Catcher's first opportunity to assert its right to
arbitrate, and it failed to do so. Thus, Dream Catcher's
noticing and reserving its right to arbitrate in January 2017
was not a "timely" invocation under
Zuckerman Accordingly, the court is not
convinced that it committed any error-let alone "clear
error"-in finding that Dream Catcher failed, under
Zuckerman, to invoke its right to arbitrate at the
Catcher's second argument fares no better. That argument
turns on Zuckerman's "savings clause,
" under which a court may excuse a party's dilatory
invocation if the delay has not imposed significant
"costs upon opposing counsel or the court."
Def's Mot. at 4-5. Here, Dream Catcher claims that its
six-month delay in asserting its right to compel arbitration
resulted in only de minimis harm to Plaintiff. It also
asserts that Plaintiffs costs arising from its late
invocation were far less harmful than in Zuckerman,
where the defendant filed three counterclaims, requested a
protective order, attended mediation, and faced a trial date,
all before seeking to compel arbitration. Id. These
belated contentions, however, do not demonstrate clear error.
Dream Catcher does not dispute that Plaintiff incurred real
costs by virtue of Dream Catcher's failure to assert its
arbitration right for more than six months-e.g., meeting and
conferring with Dream Catcher to develop a discovery
schedule, appearing for a hearing, issuing discovery (that
Dream Catcher, without permission from the court, refused to
answer), and responding to Dream Catcher's Motion to
Dismiss the Amended Complaint. Those costs are significant,
and it is beyond dispute that Plaintiff would not have
incurred them had Dream Catcher promptly moved for
arbitration. Dream Catcher's effort to minimize
Plaintiffs costs is unavailing and does not make the
court's application of Zuckerman clearly
Dream Catcher argues that the court erred by failing to
consider that Plaintiff could have avoided the costs he
incurred if he had filed for arbitration in the first place,
rather than initiating this suit. Id. at 3. That
argument goes nowhere. Zuckerman makes clear that a
plaintiffs decision to file a lawsuit, instead of arbitrate,
does not absolve a defendant of its obligation to invoke the
right to arbitrate at the earliest opportunity.
Zuckerman, 646 F.3d at 920-21, 923-24. Thus, the
costs a plaintiff incurs as a result of a defendant's
failure to timely invoke cannot be minimized simply because
the defendant later asserts its belief that arbitration is
the correct mechanism to resolve their dispute. Dream
Catcher's Motion for Reconsideration is therefore denied.
concluding, the court raises a separate jurisdictional issue.
Dream Catcher has filed a Notice of Appeal. See
Def's Notice of Appeal, ECF No. 30. It is not clear to
the court whether the filing of the Notice divests the court
of jurisdiction (1) as to the case in its entirety, in which
event all proceedings would be automatically stayed until
resolution of the appeal by the D.C. Circuit; (2) only as to
Dream Catcher, in which event the case would proceed as to
only the Individual Defendants; or (3) only as to the
discrete issue of arbitrability, in which event the case
would continue against all Defendants absent an affirmative
stay order from this court or the D.C. Circuit. No later than
July 17, 2017, each side shall file a single brief totaling
no more than five pages that addresses the court's
continuing jurisdiction over this matter.
 Even though Dream Catcher has
contemporaneously filed a Notice of Appeal with its Motion,
see Def 's Notice of Appeal, ECF No. 30, Rule
62.1 of the Federal Rules of Civil Procedure permits the
court to consider the Motion.
 Dream Catcher rightly points out that
the court made a mistake in its Memorandum Opinion and Order
when it attributed the Motion to Dismiss filed on October 31,
2016, to Dream Catcher, rather than the Individual
Defendants, see Mot. to Dismiss, ECF No. 3, and
stated that the court denied that motion, when it in fact
granted it. See Def's Mot. at 3-4 (citing Mem.
Op. and Order at 2). Those errors are immaterial, however,
because the fact remains that Dream Catcher failed to invoke