Motion For Reconsideration

Case 3:17-cv-01953-PAD Document 73 Filed 10/29/18 Page 1 of 22
IN THE UNITED STATES DISTRIC COURT

FOR THE DISTRICT OF PUERTO RICO
AUSTIN TROUT, CIVIL NO.: 17-1953 (PAD)
Plaintiff,
VIOLATION OF THE MUHAMMAD ALI
vs. ACT; BREACH OF CONTRACT;
FRAUD; DAMAGES
ORGANIZACION MUNDIAL DE BOXEO,
INC. PLAINTIFF DEMANDS TRIAL BY JURY
Defendant.
MOTION FOR RECONSIDERATION
MAY IT PLEASE THE COURT:
COMEs NOW, the Plaintiff, Mr. Austin Trout, through the
undersigned attorneys and very respectfully States, Alleges and
Prays:
INTRODUCTION
The appearing party hereby respectfully requests from the
Honorable Court to reconsider its order contained in Docket No.
71. As the present motion will establish, the WBO waived any right
to arbitration, Section 35(d) of the WBO’s World Championship
Guidelines is controlling of the instant controversy, and the
claims under the Muhammad Ali Act cannot be subject to arbitration.
STANDARD FOR MOTION FOR RECONSIDERATION

Motion for Reconsideration
Civil No. 17-1953 (PAD)
Although the Federal Rules of Civil Procedure do not
contemplate this type of motion, it is a well-settled principle in
the United States District Court for the District of Puerto Rico
that, “[a] motion for reconsideration… is treated as a motion under
Rule 59(e) of the Federal Rules of Civil Procedure.” Colón v.
Blades, ---F.Supp.2d---, 2010 WL 3432602 (D.P.R. 2010); Rosario
Meléndez v. Hewlett Packard Caribe, 660 F.Supp.2d 229, 232 (D.P.R.
2009); Lozano v. Corona, 186 F.Supp2d 77, 79 (D.P.R. 2002); Trabal
Hernández v. Sealand Serv., Inc., 230 F. Supp. 2d 258, 259 (D.P.R.
2002). See also Rivera v. PS Group of P.R., Inc., 186 F. Supp. 2d
63, 65 (D.P.R. 2002). Fed. R. Civ. P. 59(e) provides that “[a]ny
motion to alter or amend a judgment shall be filed no later than
10 days after entry of the judgment.” Although the aforecited
Rule refers exclusively to judgments, this Court has recognized
that “Rule 59(e)’s legal standards will be applied to motions for
reconsideration of interlocutory orders.” Moran Vega v. Rivera
Hernández, 381 F. Supp. 2d 31, 35 (D.P.R. 2005).
A motion for reconsideration is the appropriate vehicle to
“correct manifest errors of law or fact, present newly discovered
evidence, or when there is an intervening change in the law.” Moran
Vega, 381 F. Supp. 2d at 34-35 (citing Rivera Surillo & Co. v.
Falconer Glass Indus., Inc., 37 F.3d 25, 29 (1st Cir. 1994)). As
a general rule, a motion for reconsideration is an extraordinary
remedy that should be used sparingly. Trabal Hernández, 230 F.
Page 2
Supp. 2d at 259. According to professors Wright and Miller, there
are four basic grounds upon which a Rule 59(e) motion may be
granted, namely:
“First, the movant may demonstrate that the motion is

necessary to correct manifest errors of law or fact upon which
the judgment is based. Second, the motion may be granted so
that the moving party may present newly discovered or
previously unavailable evidence. Third, the motion will be
granted if necessary to prevent manifest injustice. Serious
misconduct of counsel may justify relief under this theory.
Fourth, a Rule 59(e) motion may be justified by an intervening
change in controlling law”. 11 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 2810.1 at 124-27
(2d ed. 1995)(footnotes omitted).
DISCUSSION
I. Defendant WBO waived any right to arbitration.
In order to determine whether the WBO waived any right to
arbitration the Honorable Court must evaluate: [1] whether the
party has actually participated in the lawsuit or has taken other
action inconsistent with his right, . . . [2] whether the
litigation machinery has been substantially invoked and the
parties were well into preparation of a lawsuit by the time an
intention to arbitrate was communicated by the defendant to the
plaintiff, . . . [3] whether there has been a long delay in seeking
the stay or whether enforcement of arbitration was brought up when
trial was near at hand. . . . Other relevant factors are [4]
whether the defendants have invoked the jurisdiction of the court
by filing a counterclaim without asking for a stay of the
Page 3
proceedings,. . . [5] whether important intervening steps (e.g.
taking advantage of judicial discovery procedures not available in
arbitration . . .) had taken place, . . . and [6] whether the other
party was affected, misled, or prejudiced by the delay. Tyco Int'l
(U.S.) Ltd. v. Swartz (In re Tyco Int'l Ltd. Sec. Litig.), 422
F.3d 41 (1st Cir. 2005); FPE Found. v. Cohen, 801 F.3d 25;
Restoration Preservation Masonry v. Grove Eur. Ltd., 325 F.3d 54,
60-61 (1st Cir. 2003).
As federal policy strongly favors arbitration of disputes, a
"waiver is not to be lightly inferred," thus reasonable doubts as
to whether a party has waived the right to arbitrate should be
resolved in favor of arbitration. Restoration Pres. Masonry, Inc.
v. Grove Eur. Ltd., 325 F.3d 54, 61 (1st Cir. 2003). However, "an
arbitration provision has to be invoked in a timely manner or the
option is lost." Rankin v. Allstate Ins. Co., 336 F.3d 8, 12 (1st
Cir. 2003); see Marie v. Allied Home Mortgage Corp., 402 F.3d 1,
15(1st Cir. 2005) ("Undue delay in bringing arbitration . . . is
inconsistent with the desire to arbitrate.") (emphasis added).
Waivers of arbitral rights need not be express, but may be
implied from the particular circumstances. See Restoration Pres.,
325 F.3d at 61 (noting that "there are no per se rules," and that
belated assertions of a right to arbitrate must be assessed in
"context"); In re Crysen/Montenay Energy Co., 226 F.3d 160, 163
(2d Cir. 2002) (noting that there is no "bright line" rule as to
Page 4
waiver); Cabinetree of Wis., Inc. v. Kraftmaid Cabinetry, Inc., 50
F.3d 388, 390 (7th Cir. 1995).
A. The WBO invoked the jurisdiction of the Honorable Court prior

to invoking the arbitration clause.
The one and only reason the Honorable Court has Case Civil
No. 17-1953 under its consideration is because the WBO invoked its
jurisdiction. The WBO did not invoke the Honorable Court’s
jurisdiction in implicit terms. Rather, the WBO did so explicitly:
This action is a civil action in which this court has

original jurisdiction under 28 U.S.C. §1332, and is one
which may be removed to this Court by WBO pursuant to
the provisions of 28 U.S.C. §1332(a)(1), in that the
matter in controversy exceeds the sum of $75,000.00,
exclusive of interests and costs, and is between
citizens of different states. Thus, this action may
properly be removed to this Court under 28 U.S.C.
§§1441(b) and 1446.
See, Docket No. 1, page 2. (emphasis added)
Not only did the WBO invoke the Honorable Court’s
jurisdiction, it did so by arguing that the article within the WBO
Regulations that governed the jurisdictional controversy was,
precisely, Section 35(d) of said regulations.
“The WBO Regulations of World Championship Contests

governing the parties contain a valid, unambiguous venue
selection clause that requires the parties to litigate
this action in the Commonwealth of Puerto Rico”.
See, Docket No. 4, page 1, paragraph 1. (emphasis added)
“These Regulations are to be interpreted in conformity

with the Laws of the Commonwealth of Puerto Rico. All
Page 5
WBO Participants agree and consent that the exclusive

venue for any or all action in which the WBO is made a
party, whether its is to enforce, interpret or declare
the application of these Regulations or to appeal from
any determination of the WBO…may be maintained only in
the Superior Court of the Commonwealth of Puerto Rico,
or, if applicable, in the U.S. District Court for the
Commonwealth of Puerto Rico”.
The Contract Venue Provision here is mandatory. In clear

language, it provides that “exclusive venue… may be
maintained only in” the Commonwealth of Puerto Rico for
actions concerning enforcement or interpretation of the
WBO Regulations. See WBO’s Exhibit A, Section
35(d)(emphasis added). This provision does not merely
permits the parties to litigate in the Commonwealth of
Puerto Rico, it requires it. K & V Scientific, 314 F.3d
at 500 (explaining that the use of the term ‘only’ is
evidence that the parties intended to limit jurisdiction
to a particular forum.) This lawsuit clearly arises out
of the Regulations because Plaintiff contends that the
WBO violated certain provisions of the Regulations. See
Compl. ¶¶ 33, 36, 37, 41, 42. Therefore the Contract
Venue Provision governs this dispute, and it must be
enforced.
See, Docket No. 11, pages 4-5. (emphasis added)
The Contract Venue Provision unequivocally mandates that

the parties litigate this matter in the state or federal
courts of the Commonwealth of Puerto Rico for any actions
that arise under the WBO Regulations (“…exclusive venue
for any or all action in which the WBO is made a party,
whether it is to enforce, interpret or declare the
application of these Regulations…”).Plaintiff attached
the Regulations to his Complaint and relies upon them as
the substantive base for every single one of his claims.
Compl., at Exhibit B. Plaintiff must not be permitted to
defy the Contract Venue Provision by seeking to litigate
his claims elsewhere.
Page 6
The previous docket references were all drafted and submitted
by the WBO. In the previously referenced paragraphs, the WBO
unequivocally: 1. invokes the jurisdiction of the Honorable Court;
2. represents that the parties are required to litigate this matter
in the state or federal courts of the Commonwealth of Puerto Rico
and; 3. states that Section 35(d)is controlling.
Again, these are all WBO representations and averments, which
are subject to the precepts of FRCP 11(b). All of these averments
and requests were filed within the Honorable Court before any
request for arbitration was sought.
Ever since the instant claim was filed in the New Mexico state
court in November, 2015, the WBO could have requested the
arbitration. It did not. Instead, the WBO requested the case to be
removed to federal court, expressly invoking the federal
jurisdiction of the court. When the case was at the federal
district court in New Mexico, the WBO could have requested the
case to be sent to arbitration. It did not. To the contrary, the
WBO invoked the jurisdiction of the Honorable Court, arguing that
Section 35(d) is controlling and that the parties have a legal
requirement to litigate the case in the Commonwealth state or
federal courts.
There is no bright-line rule for a waiver of arbitral rights,
and each case is to be judged on its particular facts. Tyco Int'l
Page 7
(U.S.) Ltd. v. Swartz (In re Tyco Int'l Ltd. Sec. Litig.), 422
F.3d 41 (1st Cir. 2005); Rankin,336 F.3d at 12.
In the instant case, the complaint was originally filed on
November 16, 2015. See, Docket No. 1. Defendants request for
arbitration was filed on August 28, 2017. See, Docket No. 27. As
stated, the WBO could have requested arbitration since November
2015. Instead, the WBO spent 21 months invoking the jurisdiction
of the federal court, and wholly and specifically arguing said
petition under Section 35(d)of the WBO World Championship
Regulations.
By the explicitly invoking the Honorable Court’s
jurisdiction, by unequivocally invoking the controlling nature of
Section 35(d), and by requesting the case to be litigated in this
district, the WBO effectively waived any right to arbitration.
B. The WBO has taken action inconsistent with arbitration.
This controversy was fully briefed for the Honorable Court’s
ruling by November 30, 2017. See, Docket No. 51. Since then, both
parties have actively engaged in discovery, including factual and
expert discovery in Puerto Rico and the mainland, and have jointly
requested the Honorable Court for an extension of the discovery
deadline. Let us review the procedural track of the case since the
controversy was fully briefed on November 30, 2018.
1. By way of an electronic communication on February 19,
2018, the appearing party served Defendant WBO with its Second Set
Page 8
of Interrogatories and Request for Production of Documents. See,
Electronic communication dated February 19, 2018, attached
herewith as Exhibit 1.
2. On February 20, 2019, plaintiff served three notices of
deposition to individual executives of the WBO. See, Electronic
communication dated February 20, 2018, attached herewith as
Exhibit 2.
3. On March 1, 2018, the Parties held a Rule 26 Good Faith
meeting to address the discovery situation regarding the
outstanding discovery. See, Docket No. 55, Paragraph 14. In said
meeting, the Parties agreed that the WBO would produce its answers
to the First and the Second Sets of Interrogatories and Request
for Production of Documents no later than April, 3, 2018.
4. On March 7, 2018, the parties jointly requested an
extension of the discovery deadline until July 16, 2018. See,
Docket No. 55.
5. On April 3, 2018, counsel for the WBO sent a letter to
the undersigned in which it requested an extension of the agreed
upon term for the production of the outstanding discovery. See,
Letter dated April 3, 2018 from Andrew Horn, Esq., attached
herewith as Exhibit 3.
Page 9
6. On April 11, 2018, Defendant WBO produced its answers to
the outstanding discovery. See, Electronic communication dated
April 11, 2018, attached herewith as Exhibit 4.
7. On May 1, 2018, the appearing party served Defendant WBO
with his objections to Defendant WBO’s answers to the outstanding
discovery. See, Electronic communication dated May 1, 2018 from
Miguel Ortega, Esq., attached herewith as Exhibit 5.
8. Also on May 1, 2018, Defendant WBO served Plaintiff with
its First Request for Production of Documents. See, Electronic
communication dated May 1, 2018 from Andrew Horn, Esq., attached
herewith as Exhibit 6. It is noteworthy that this was Defendant
WBO’s first discovery attempt in 30 months of litigation.
9. On June 1, 2018, Plaintiff produced to Defendant WBO its
initial expert witness disclosures, consisting of the retained
expert’s curriculum vitae, the engagement letter, and the expert’s
case list. See, Docket No.61, Document 61-1.
10. On June 8, 2018, Defendant WBO served Plaintiff with its
First Request for Admissions and its First Set of Interrogatories.
See, Electronic communication dated June 8, 2018 from Andrew Horn,
Esq., attached herewith as Exhibit 7.
11. On June 13, 2018, Defendant WBO filed its Motion to
Strike Plaintiff’s Expert Witness. See, Docket No. 61.
Page 10
12. On June 13, 2018, the 30(b)(6) deposition of the WBO was
taken.
13. On June 14, 2018, the deposition of Diana Meléndez was
taken.
13. On June 27, 2018, the Parties, jointly, requested an
extension of the discovery deadline. See, Docket No. 65. In it,
the parties submitted a proposed discovery schedule with a
discovery deadline of October 16 2018, including expert discovery.
See, Docket No.68, Paragraph 29.
14. On June 29, 2018, the Honorable Court partially granted
the joint motion for extension of time. See, Docket No.68. The
Honorable Court extended the discovery deadline for September 30,
2018. Such extension includes expert discovery. Id.
15. On July 31, 2018, Plaintiff’s expert produced his
report. Exhibit 8.
16. On August 15, 2018, Plaintiff’s deposition was taken.
17. On August 16, 2018, the deposition of Mr. Bob Spagnola
was taken.
18. On August 17, 2018, the deposition of Mr. Luis Batista
Salas was taken.
Page 11
19. On August 30, 2018, the WBO produced its expert witness
report, which consists of 70 pages, excluding exhibits. Exhibit 9.
20. On September 18, 2018, the WBO’s expert witness
deposition was taken in Chicago, Illinois.
21. On September 21, 2018, the deposition of Mr. Louis Bourke
was taken in Las Cruces, New Mexico.
22. On September 24, 2018, the deposition of Plaintiff’s
expert witness, Alberto Fernandez Pelegrina was taken.
In all, the parties have exchanged written discovery in excess
of 800 pages, have taken 8 depositions and have exchanged expert
reports. Discovery was all but finished. As a matter of fact, the
Honorable Court’s opinion and order sending the case for
arbitration was issued on the very last day of discovery, to which
a 10 day period for the filing of dispositive motions was to
follow, as per the latest extension of the discovery deadline.
See, Docket No. 68.
Therefore, after the controversy was fully briefed, the
parties engaged in discovery at a rather fast pace. Not only that,
when faced with an expiring discovery deadline, the WBO requested
the Honorable Court for an extension of time, twice. Written
discovery, depositions, expert discovery were performed, at a cost
of tens of thousands of dollars to the Plaintiff who, after been
Page 12
taken by the WBO to federal court almost 3 years ago, now sees his
case going back again to square one.
The WBO has taken other action inconsistent with any
arbitration right, and important intervening steps (e.g. taking
advantage of judicial discovery procedures not available in
arbitration . . .) have taken place. Tyco Int'l (U.S.) Ltd. v.
Swartz (In re Tyco Int'l Ltd. Sec. Litig.). Therefore, the WBO has
waived any right to arbitration.
C. Plaintiff will suffer prejudice from the stay.
To be sure, prejudice is essential for a waiver, but the
required showing is "tame at best." Joca-Roca Real Estate, LLC v.
Brennan, 772 F.3d 945 (1st Cir. 2014). In the controversy at hand,
Plaintiff is required to demonstrate a "modicum of prejudice".
Tyco Int'l (U.S.) Ltd. v. Swartz (In re Tyco Int'l Ltd. Sec.
Litig.).
As stated earlier, Plaintiff filed the instant claim on
November 16, 2015 in the New Mexico state court. When filed at
state court, the WBO did not seek arbitration. The WBO removed the
case to federal court (New Mexico Federal District), invoking its
jurisdiction. As per the WBO’s removal, Plaintiff sought to
litigate his case in the federal district of New Mexico, only to
find out the WBO wanted to transfer the case to Puerto Rico by
Page 13
alleging that Section 35(d) was controlling and that the parties
were legally required to litigate the case in the courts of the
Commonwealth. See, Docket No. 4, page 2, paragraph 3; Docket No.
11, pages 4-5; Docket No. 11, page 8, paragraph 3.
Then, after the case was delayed for 21 months, and after
Plaintiff had destined considerable financial resources in
pursuing his case in New Mexico, Plaintiff had to seek and retain
legal counsel in Puerto Rico, a venue which is rather distant from
his home. All this, because of the WBO’s request for the case to
be litigated in the Federal District of Puerto Rico under the
binding mandates of Section 35(d). See, Docket Nos. 4, 11.
Furthermore, as per the WBO’s representations, for 21 months
Plaintiff designed a legal and financial strategy that envisioned
the case to be litigated in court, be it state or federal.
After the case was brought to the Federal District Court for
the district of Puerto Rico, the Plaintiff diligently followed the
Case Management Order issued by the honorable Court on August 9,
2018. See, Docket No. 25. Once both parties deemed that the term
provided for discovery was not going to be enough, the parties
jointly filed not one but two joint motions for extension of time.
See, Docket Nos. 55 and 65. Plaintiff performed the intended
discovery, at extraordinary costs, which included 8 depositions,
written discovery and expert reports. As per the order contained
Page 14
in Docket No. 68, discovery was to end on September 30, 2018 and
dispositive motions were to be filed on or before October 10, 2018.
And here is Plaintiff, almost 36 months since diligently
filing his complaint in November 16, 2015, after spending tens of
thousands of dollars in legal fees and discovery expenses following
the WBO’s removal to federal court, and just ten (10) days away
from filing a dispositive motion as per the Honorable Court’s
order, on the verge to being sent to begin the process again in
arbitration.
Had the WBO really intended to pursue arbitration, it would
have done so when first confronted with the claim in state court.
Instead, the WBO took Plaintiff on a 21 month ride on federal
court, just to ask for arbitration once the case was brought to
this district. The 21 month ride turned into little less than 36
months1. This was, clearly, a dilatory practice on part of the WBO.
We must not forget that arbitration is "not meant to be another
weapon in the arsenal for imposing delay and costs in the dispute
resolution process”. Tyco Int'l (U.S.) Ltd. v. Swartz (In re Tyco
Int'l Ltd. Sec. Litig.).
This delay of 3 years has been extremely prejudicial to
Plaintiff, and it is not attributable to him. Therefore, Plaintiff
1
The Honorable Court warned the parties about how long the present case has taken. See, Docket No. 68 (“The
case will reach its 3-year benchmark in March, 2019”).
Page 15
was affected, misled, or prejudiced by the delay. Tyco Int'l (U.S.)
Ltd. v. Swartz (In re Tyco Int'l Ltd. Sec. Litig.), 422 F.3d 41
(1st Cir. 2005); FPE Found. v. Cohen, 801 F.3d 25; Restoration
Preservation Masonry v. Grove Eur. Ltd., 325 F.3d 54, 60-61 (1st
Cir. 2003).
II. Section 35(d) of the WBO’s Championship Guidelines is

controlling over the instant controversy.
In the opinion and order contained in Docket No. 71, the
Honorable Court characterized Section 35(d) of the WBO
Championship Guidelines as applicable only to matters not subject
to arbitration:
There is no tension between the two clauses, and

both are clear and unambiguous. Section 35(d) governs
choice of forum in the event the WBO is made a party to
a litigation regarding a dispute not subject to
arbitration.
See, Docket No. 71, page 7, paragraph 2.
With the utmost respect, the appearing party disagrees with
the Honorable Court’s interpretation of the referenced section and
further believes that, if said interpretation stands, will amount
to a manifest error of law.
Section 35(d) of the WBO Championship Regulations states:
These Regulations are to be interpreted in

conformity with the Laws of the Commonwealth of Puerto
Rico. All WBO Participants agree and consent that the
exclusive venue for any or all action in which the WBO
is made a party, whether it is to enforce, interpret or
declare the application of these Regulations or to
appeal from any determination of the WBO, including, but
not limited to a determination of the Complaints and
Page 16
Grievance Committee, may be maintained only in the

Superior Court of the Commonwealth of Puerto Rico, or,
if applicable, in the U.S. District Court for the
Commonwealth of Puerto Rico.
See, WBO Regulations of World Championship Contests (emphasis
added).
There is no language in the referenced section in which it
establishes that it only applies to matters not subject to
arbitration. To the contrary, the plain language of the section
establishes that it applies to any or all action in which the WBO
is made a party, whether it is to enforce, interpret or declare
the application of these Regulations or to appeal from any
determination of the WBO, including, but not limited to a
determination of the Complaints and Grievance Committee.
The distinction between Sections 35(d) and 35(e) is that 35(d)
circumscribes to actions in which the WBO is made a party, such as
in the instant case. This is the plain language of Section 35(d),
this is the Section under which the WBO requested the case to be
brought to the District of Puerto Rico, and this is the section
and the rationale used by the Honorable to grant the WBO’s own
request:
Section 35(d) of the WBO Regulations contains the

relevant forum selection clause (hereinafter “the
Contract Venue Provision”):
These Regulations are to be interpreted in

conformity with the Laws of the Commonwealth of Puerto
Rico. All WBO Participants agree and consent that the
Page 17
exclusive venue for any or all action in which the WBO

is made a party, whether it is to enforce, interpret, or
declare the application of these Regulations or to
appeal from any determination of the WBO, including, but
not limited to a determination of the Complaints and
Grievance Committee, may be maintained only in the
Superior Court of the Commonwealth of Puerto Rico, or,
if applicable, in the U.S. District Court for the
District of Puerto Rico. Compl. Ex. B § 35(d), ECF No.
1-2, at 41.
Defendant argues the Contract Venue Provision is

mandatory and must be enforced.
See, Docket No. 15, page 8, paragraph 1.
To rule that Section 35(d) is not controlling of the present
controversy would amount to set aside a previous ruling of the
Honorable Court, which was not appealed, but rather fully
implemented by transferring the case to Puerto Rico.
Evidently, the plain language of Section 35(d) establishes
its controlling nature over the present controversy. Furthermore,
is was this section the one under which the WBO founded its
petition to transfer the case to Puerto Rico and was the section
under which the Honorable Court granted the WBO’s petition, 21
months after the plaintiff filed its original complaint.
III. The claims under the Muhammad Ali Act are not subject to
arbitration.
Congress enacted the Muhammad Ali Act on May 26, 2000 to
protect the rights and welfare of professional boxers by preventing
certain exploitive, oppressive and unethical business practices.
Page 18
In enacting the Muhammad Ali Act, Congress specifically
recognized that the sport of boxing “operates without any private
sector association, league, or centralized industry organization
to establish uniform and appropriate business practices and
ethical standards” which “lead to repeated occurrences of
disreputable and coercive business practices in the boxing
industry, to the detriment of professional boxers nationwide.”
Furthermore, Congress stated that Sanctioning Organizations,
such as defendant WBO, “have not established credible and objective
criteria to rate professional boxers, and operate with virtually
no industry or public oversight. Their ratings are susceptible to
manipulation, have deprived boxers of fair opportunities for
advancement, and have undermined public confidence in the
integrity of the sport”. In addition, Congress established that
“Open competition in the professional boxing industry has been
significantly interfered with by restrictive and anticompetitive
business practices of certain promoters and sanctioning bodies, to
the detriment of the athletes and the ticket buying public. Common
practices of promoters and Sanctioning Organizations represent
restraints of interstate trade in the United States”.
The prevailing abusive and arbitrary policies of promoters
and Sanctioning Organizations convinced Congress that it was
“necessary and appropriate to establish national contracting
reforms to protect professional boxers and prevent exploitive
Page 19
business practices, and to require enhanced financial disclosures
to State athletic commissions to improve the public oversight of
the sport”.
In order to implement and enforce the mandates of the Muhammad
Ali Act, Congress ordered the Association of Boxing Commissions
(hereinafter “ABC”), among other things, to develop and approve
guidelines for objective and consistent written criteria for the
ratings of professional boxers. 15 U.S.C. § 6307(c)(a).
As such, the Muhammad Ali Act specifically requires a
Sanctioning Organization, like defendant WBO, to abide and follow
the guidelines for objective and consistent written criteria for
the ratings of professional boxers established by the Association
of Boxing Commissions. 15 U.S.C. § 6307(c)(a).
When there is a change in the rating of a classified
professional boxer, the Muhammad Ali Act further requires
Sanctioning Organizations, like defendant WBO, to “provide to the
boxer a written explanation of the organization’s criteria, its
rating of the boxer, and the rationale or basis for its rating
(including a response to any specific questions submitted by the
boxer); and submit a copy of its explanation to the Association of
Boxing Commissions. 15 U.S.C. § 6307(c)(b).
Under the Muhammad Ali Act, Sanctioning Organizations must
also, with respect to a change in the rating of a boxer previously
rated by such organization in the top 10 boxers, “post a copy,
Page 20
within 7 days of such change, on its Internet website or home page,
if any, including an explanation of such change, for a period of
not less than 30 days; and provide a copy of the rating change and
explanation to an association to which at least a majority of the
State boxing commissions belong”. 15 U.S.C. § 6307(c)(b)(1)(2).
These mandates do not emanate from the WBO championship
guidelines. The WBO guidelines do not contain provisions such as
this one. They derive from the Muhammad Ali Act. As such, they are
out of the scope of the WBO regulations. These are federal mandates
addressed to the WBO, not WBO’s internal guidelines.
What is worst, there is a clear legislative intent to regulate
undesired and illegal practices from sanctioning bodies, such as
the WBO. Some of these practices carry with it criminal
consequences. See, Muhammad Ali Act, Section 6:
(2) VIOLATION OF ANTIEXPLOITATION, SANCTIONING

ORGANIZATION, OR DISCLOSURE PROVISIONS.—Any person
who knowingly violates any provision of section 9(b),
10, 11, 12, 13, 14, or 16 of this Act shall, upon
conviction, be imprisonment for not more than 1 year or
fined not more than—
(A) $100,000; and
(B) if a violation occurs in connection with a
professional boxing match the gross revenues for which
exceed $2,000,000, an additional amount which bears the
same ratio to $100,000 as the amount of such revenues
compared to $2,000,000, or both.
If the Muhammad Ali Act claims are included under the scope
of arbitration, sanctioning bodies, such as the WBO, will be able
to effectively circumvent the legislative intent by binding all
Page 21
claims under the Muhammad Ali Act, which could carry criminal
consequences, to an arbitration proceeding in which the WBO will
be a party and a judge, with the deciding committee selected by
the very President of the WBO.
WHEREFORE, the Plaintiff very respectfully requests from the
Honorable Court to grant the requested reconsideration, to
schedule a status conference and to continue the proceedings in
federal court.
RESPECTFULLY SUBMITTED.
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that the instant
document has been filed with the Court’s CM/ECF System, which will
simultaneously serve notice on all counsel of record, to their
registered email addresses. Any non-registered attorneys and/or
parties will be served via regular mail.
In San Juan, Puerto Rico, this day 29th day of October, 2018.
/S MIGUEL J. ORTEGA NÚNEZ

Miguel J. Ortega Núnez
USDC 220609
CANCIO, NADAL, RIVERA &
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Motion For Reconsideration

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Motion For Reconsideration

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Case 3:17-cv-01953-PAD Document 73 Filed 10/29/18 Page 1 of 22

IN THE UNITED STATES DISTRIC COURT

AUSTIN TROUT, CIVIL NO.: 17-1953 (PAD)

MOTION FOR RECONSIDERATION

MAY IT PLEASE THE COURT:

COMEs NOW, the Plaintiff, Mr. Austin Trout, through the

undersigned attorneys and very respectfully States, Alleges and

The appearing party hereby respectfully requests from the

Honorable Court to reconsider its order contained in Docket No.

to arbitration, Section 35(d) of the WBO’s World Championship

Guidelines is controlling of the instant controversy, and the

claims under the Muhammad Ali Act cannot be subject to arbitration.

STANDARD FOR MOTION FOR RECONSIDERATION

Although the Federal Rules of Civil Procedure do not

contemplate this type of motion, it is a well-settled principle in

that, “[a] motion for reconsideration… is treated as a motion under

Rule 59(e) of the Federal Rules of Civil Procedure.” Colón v.

Blades, ---F.Supp.2d---, 2010 WL 3432602 (D.P.R. 2010); Rosario

Meléndez v. Hewlett Packard Caribe, 660 F.Supp.2d 229, 232 (D.P.R.

2009); Lozano v. Corona, 186 F.Supp2d 77, 79 (D.P.R. 2002); Trabal

Hernández v. Sealand Serv., Inc., 230 F. Supp. 2d 258, 259 (D.P.R.

2002). See also Rivera v. PS Group of P.R., Inc., 186 F. Supp. 2d

63, 65 (D.P.R. 2002). Fed. R. Civ. P. 59(e) provides that “[a]ny

motion to alter or amend a judgment shall be filed no later than

10 days after entry of the judgment.” Although the aforecited

Rule refers exclusively to judgments, this Court has recognized

that “Rule 59(e)’s legal standards will be applied to motions for

reconsideration of interlocutory orders.” Moran Vega v. Rivera

Hernández, 381 F. Supp. 2d 31, 35 (D.P.R. 2005).

A motion for reconsideration is the appropriate vehicle to

“correct manifest errors of law or fact, present newly discovered

evidence, or when there is an intervening change in the law.” Moran

Vega, 381 F. Supp. 2d at 34-35 (citing Rivera Surillo & Co. v.

Falconer Glass Indus., Inc., 37 F.3d 25, 29 (1st Cir. 1994)). As

a general rule, a motion for reconsideration is an extraordinary

remedy that should be used sparingly. Trabal Hernández, 230 F.

Supp. 2d at 259. According to professors Wright and Miller, there

“First, the movant may demonstrate that the motion is

I. Defendant WBO waived any right to arbitration.

In order to determine whether the WBO waived any right to

arbitration the Honorable Court must evaluate: [1] whether the

party has actually participated in the lawsuit or has taken other

action inconsistent with his right, . . . [2] whether the

litigation machinery has been substantially invoked and the

parties were well into preparation of a lawsuit by the time an

intention to arbitrate was communicated by the defendant to the

plaintiff, . . . [3] whether there has been a long delay in seeking

the stay or whether enforcement of arbitration was brought up when

trial was near at hand. . . . Other relevant factors are [4]

whether the defendants have invoked the jurisdiction of the court

by filing a counterclaim without asking for a stay of the

proceedings,. . . [5] whether important intervening steps (e.g.

taking advantage of judicial discovery procedures not available in

arbitration . . .) had taken place, . . . and [6] whether the other

party was affected, misled, or prejudiced by the delay. Tyco Int'l

Restoration Preservation Masonry v. Grove Eur. Ltd., 325 F.3d 54,

60-61 (1st Cir. 2003).

As federal policy strongly favors arbitration of disputes, a

"waiver is not to be lightly inferred," thus reasonable doubts as

to whether a party has waived the right to arbitrate should be

resolved in favor of arbitration. Restoration Pres. Masonry, Inc.

arbitration provision has to be invoked in a timely manner or the

option is lost." Rankin v. Allstate Ins. Co., 336 F.3d 8, 12 (1st