Plaintiff Youras Ziankovich respectfully moves this Court to reconsider its Order granting Defendant’s Motion to Compel Arbitration (Document No. 18) pursuant to Federal Rule of Civil Procedure 59(e).
Plaintiff conferred with Defendant regarding this Motion.
On April 23, 2026, Plaintiff notified Defendant’s counsel by email of his intent to file this Motion and requested Defendant’s position.
As of the time of filing, Defendant had not responded.
I. INTRODUCTION
Reconsideration is warranted because the Court’s Order rests on manifest errors of law and fact.
The Court compelled arbitration without resolving a genuine dispute regarding whether any arbitration agreement was ever formed.
The Court compelled arbitration without identifying any specific act by which Plaintiff manifested assent to any arbitration agreement.
The Order does not point to any record evidence of acceptance, any interface presented to Plaintiff, or any Plaintiff-specific conduct establishing agreement.
Plaintiff expressly disputed assent and identified specific evidentiary deficiencies in Defendant’s showing, including the absence of any Plaintiff-specific acceptance records.
Defendant, in turn, relied solely on a generalized declaration describing typical platform behavior, rather than evidence of Plaintiff’s actual conduct.
In addition, Defendant’s own evidence acknowledges that a user could complete account registration without agreeing to the Terms of Use.
That admission directly undermines any finding of mutual assent.
The Court’s Order does not address this point.
Because arbitration is a matter of contract, and because the existence of an agreement is a threshold question for the Court, reconsideration is necessary to correct these errors.
II. STANDARD OF REVIEW
A motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) serves the limited purpose of allowing a court to correct manifest errors of law or fact or to prevent manifest injustice.
Such motions are not intended to relitigate issues that have already been raised or to present arguments that could have been made before the entry of judgment.
However, reconsideration is appropriate where the Court has misapplied controlling law, failed to consider material facts, or rendered a decision that rests on a clearly erroneous assessment of the record.
See Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004).
In the context of arbitration, the Court must first determine whether a valid agreement to arbitrate exists before compelling arbitration.
Where the formation of an arbitration agreement is genuinely disputed, the Court is required to resolve that issue under ordinary principles of contract law and may not compel arbitration based on assumptions, generalized practices, or unresolved factual disputes.
See Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201-02 (5th Cir. 2016).
Accordingly, reconsideration is warranted where, as here, the Court compels arbitration without resolving a genuine dispute of contract formation, relies on conclusory or non-party-specific evidence, or overlooks material facts bearing directly on the existence of mutual assent.
III. ARGUMENT
A. The Court Failed to Apply the Procedure Required by the FAA
Under the Federal Arbitration Act, arbitration is strictly a matter of contract.
A party cannot be required to submit to arbitration unless the Court first determines that a valid agreement to arbitrate exists between the parties.
The party seeking to compel arbitration bears the burden of proving the existence of such an agreement.
Where the making of an arbitration agreement is “in issue,” the FAA requires the Court to proceed summarily to a trial or evidentiary hearing on that question.
9 U.S.C. § 4.
This requirement is mandatory, not discretionary.
Here, Plaintiff expressly denied assent, and Defendant failed to produce any Plaintiff-specific evidence of agreement.
Defendant presented no signed agreement, no clickwrap record, no timestamp, no audit trail, and no documentation tying Plaintiff to any acceptance event.
This is sufficient, as a matter of law, to place contract formation “in issue” under § 4.
The Court nevertheless compelled arbitration without conducting an evidentiary hearing or resolving the formation dispute through competent evidence.
This constitutes a failure to apply the procedure required by the FAA and is clear error.
B. The Court Compelled Arbitration Without Identifying Any Evidence of Assent
The Court did not identify any evidence in the record establishing an act by which Plaintiff manifested assent to an arbitration agreement.
The Order contains no findings as to when or how Plaintiff allegedly agreed, no analysis of the interface presented to Plaintiff, and no evaluation of the absence of account-specific evidence.
Instead, the Court accepted Defendant’s generalized description of its platform as sufficient to establish assent.
But generalized descriptions of how a system “typically” operates do not establish that this Plaintiff actually saw, reviewed, or agreed to any arbitration provision.
The Court further relied on findings that Plaintiff was required to click a button agreeing to the Terms of Use and that he reaffirmed assent through subsequent use.
However, Defendant produced no account-specific evidence supporting these findings, no click records, no timestamps, no interface screenshots, and no audit trail.
Absent such evidence, these findings are unsupported by the record and cannot satisfy Defendant’s burden of proving contract formation.
The FAA does not permit courts to compel arbitration based on assumptions or generalized practices.
It requires proof of an actual agreement between the specific parties before the Court.
By compelling arbitration without identifying any evidence of assent, the Court effectively relieved Defendant of its burden of proof.
C. The Court Relied on Conclusory Assertions Rather Than Plaintiff-Specific Evidence
Defendant failed to produce any competent evidence demonstrating that Plaintiff actually agreed to arbitrate.
There is no signed agreement, no electronic acceptance record, no clickwrap confirmation, no timestamp, and no account-specific audit trail reflecting assent.
Defendant does not identify any record tied to Plaintiff showing that he affirmatively manifested agreement to any arbitration provision.
In place of such evidence, Defendant relies entirely on a declaration describing general platform functionality and typical user flows.
That declaration does not establish what Plaintiff saw, what was presented to him, or whether he took any action indicating assent.
It speaks only in generalized terms about how the system is designed to operate.
A declaration describing general practices cannot establish assent where the opposing party denies agreement and no account-specific evidence exists.
In that circumstance, the issue is not credibility but the absence of proof.
Courts evaluating online contract formation consistently require proof that the particular user received reasonably conspicuous notice of the terms and manifested assent.
See Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29-30 (2d Cir. 2002) (rejecting enforcement where assent could not be inferred from user conduct absent clear notice).
See also Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1178-79 (9th Cir. 2014) (declining to enforce terms where the website provided only a passive hyperlink without evidence of user assent).
Although these cases arise in other circuits, they reflect a consistent principle also recognized in the Fifth Circuit: arbitration depends on the existence of a valid agreement under ordinary contract principles, including notice and mutual assent.
See Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201-02 (5th Cir. 2016).
Here, Defendant offers no Plaintiff-specific evidence that Plaintiff was presented with the arbitration provision in a manner reasonably calculated to provide notice, nor any evidence that Plaintiff took an affirmative step indicating agreement.
The declaration does not describe the specific interface shown to Plaintiff, does not attach screenshots, and does not identify any record demonstrating assent.
By accepting these generalized assertions as sufficient proof, the Court effectively shifted the burden away from Defendant, the party seeking to compel arbitration, and allowed arbitration to be compelled without the evidentiary showing required under the FAA.
This constitutes a manifest error of law and fact warranting reconsideration.
D. The Court Overlooked Defendant’s Own Admission That Assent Was Not Required
Defendant’s own evidence establishes that assent to the Terms of Use was not required to complete account registration.
In its original declaration, Defendant admits that a user could complete the registration process without agreeing to the Terms. (Doc. 13-1 ¶ 23.)
This admission is incompatible with any finding of mutual assent.
Contract formation requires that acceptance of terms be a condition of entering into the agreement.
Where a system permits a user to proceed without agreeing to those terms, assent cannot be inferred from account creation or subsequent use.
In such circumstances, Defendant bears the burden of producing independent, Plaintiff-specific evidence demonstrating that assent actually occurred.
Defendant has produced no such evidence: no acceptance record, no timestamp, no audit trail, and no documentation linking Plaintiff to any act of agreement.
The Court’s Order does not address this admission or reconcile it with its conclusion that Plaintiff agreed to arbitrate.
That omission is material.
Where a dispositive factual admission directly contradicts the theory of contract formation, the Court must resolve that conflict before compelling arbitration.
Because Defendant’s own evidence establishes that assent was not required, and because no independent evidence of assent exists, the record cannot support a finding that any arbitration agreement was formed.
At minimum, this conflict required the Court to conduct an evidentiary hearing under 9 U.S.C. § 4.
E. Defendant’s Position Has Materially Shifted
Defendant’s theory of assent has materially shifted over the course of this litigation.
This inconsistency is independent of the absence of evidence of assent and further undermines Defendant’s ability to meet its burden of proof.
In its initial declaration, Defendant admitted that Plaintiff could complete registration without agreeing to the Terms of Use. (Doc. 13-1 ¶ 23.)
In reply, Defendant reverses that position, asserting that agreement was required and introducing a supplemental declaration to “correct” the prior statement. (Doc. 17-1 ¶ 1.)
This unexplained reversal undermines the reliability of Defendant’s evidence.
This inconsistency is material because Defendant bears the burden of proving contract formation.
A party bearing the burden of proof cannot rely on evolving factual assertions unsupported by contemporaneous records.
The absence of any underlying system logs, user interface records, or audit data, combined with the need to revise sworn testimony, confirms that Defendant is attempting to reconstruct contract formation after the fact rather than prove it.
This evolving account is incompatible with Defendant’s burden of proof.
A party seeking to compel arbitration must establish contract formation through consistent, reliable, and contemporaneous evidence, not shifting post hoc explanations unsupported by underlying records.
This is not a clarification. It is a reversal on a material point directly bearing on contract formation.
A party bearing the burden of proof cannot establish contract formation through internally inconsistent sworn statements, particularly where no contemporaneous business records are produced.
This inconsistency, standing alone, precludes a finding of assent as a matter of law and, at minimum, required the Court to conduct an evidentiary hearing.
F. The Court Improperly Inferred Assent from Continued Use Without Evidence of Notice
The Court accepted Defendant’s argument that Plaintiff reaffirmed his agreement to the Terms of Use, and, by extension, the arbitration provision, through continued use of the platform.
That conclusion constitutes a manifest error of law because it rests on an unsupported inference of constructive assent.
Courts evaluating online contract formation require that the user receive reasonably conspicuous notice of the terms and manifest assent.
Courts in this District require evidence of the actual interface presented to the user and the mechanism of assent.
See McKimmy v. OpenSea, No. 4:22-CV-00545, 2023 WL 6370907, at *3 (S.D. Tex. Mar. 22, 2023).
Absent such evidence, generalized descriptions of system design are insufficient to establish assent as a matter of law.
Courts have enforced online agreements only where the interface clearly provides notice and requires an unambiguous manifestation of assent.
See Meyer v. Uber Techs., Inc., 868 F.3d 66, 75-79 (2d Cir. 2017).
Unlike Meyer, Defendant has produced no Plaintiff-specific evidence of the interface presented to Plaintiff, the placement or prominence of any terms, or any action specifically manifesting assent.
Here, Defendant produced no Plaintiff-specific evidence that Plaintiff was ever informed that continued use of the Wise platform would constitute acceptance of any arbitration agreement.
There are no screenshots, no interface records, no archived versions of the relevant webpages, and no Plaintiff-specific evidence describing the placement, prominence, or content of any purported notice.
Nor does Defendant identify any instance in which Plaintiff was required to acknowledge or reaffirm agreement to the Terms as a condition of using the platform.
Instead, Defendant relies on generalized assertions that users are “prompted” to accept terms during certain transactions, without producing any Plaintiff-specific record of such prompts or any evidence that Plaintiff encountered or accepted them. (Doc. 17-1 ¶ 3.)
This absence of evidence is dispositive.
Constructive assent requires that the user be placed on inquiry notice of the terms and their legal effect.
Without proof of such notice, continued use cannot be transformed into agreement as a matter of law.
The Court’s Order does not address this requirement.
It does not identify any evidence demonstrating that Plaintiff received notice that continued use would bind him to arbitration, nor does it analyze whether such notice was reasonably conspicuous.
Instead, the Court appears to have inferred assent solely from Plaintiff’s use of the platform.
That inference is legally impermissible.
Without evidence of clear notice, continued use cannot establish mutual assent.
By relying on this unsupported inference, the Court committed a manifest error of law warranting reconsideration.
Continued use cannot establish assent where the user was never required to agree and no evidence shows that continued use was conditioned on acceptance of specific terms.
G. The Court Did Not Address the Mismatch Between the Agreement Relied Upon and Plaintiff’s Account
Defendant seeks to compel arbitration based on a Customer Agreement dated September 12, 2025.
However, Defendant’s own evidence establishes that Plaintiff opened his account on August 29, 2025, prior to the effective date of the agreement on which Defendant relies.
This temporal mismatch is not a technicality; it goes directly to contract formation.
Where a party seeks to enforce a specific contract, it must establish that the contract was in effect at the relevant time and that the opposing party assented to that particular version.
Here, Defendant has done neither.
Defendant has not identified the version of the Customer Agreement in effect on August 29, 2025, has not produced any archived version of that agreement, and has not provided any evidence that Plaintiff was ever presented with, or agreed to, the September 12, 2025 version.
This deficiency is compounded by Defendant’s own contractual framework, which contemplates unilateral modification of terms.
Where a party reserves the right to modify its agreement, the existence of multiple versions is inherent, and the burden rests squarely on that party to establish which version governed and when.
Defendant has not met that burden.
It has offered no version history, no business records identifying the operative terms at the time of Plaintiff’s registration, and no Plaintiff-specific evidence of any subsequent notice or acceptance of modified terms.
The Court did not identify which version of the Customer Agreement governs, nor did it determine whether Plaintiff assented to that specific version.
Without identifying the operative contract and the act of assent to that contract, the Court could not determine whether any arbitration agreement exists.
Without establishing that Plaintiff agreed to the same agreement Defendant now invokes, arbitration cannot be compelled.
The failure to address this fundamental defect constitutes a manifest error of fact and law and independently warrants reconsideration.
Without identifying which agreement governs, the Court cannot determine whether Plaintiff ever agreed to arbitrate at all.
The errors identified above are not matters of evidentiary weight but of legal sufficiency.
The Court compelled arbitration without identifying any act of assent, without resolving a disputed issue of contract formation, and without applying the procedure required by 9 U.S.C. § 4.
These errors warrant reconsideration to prevent manifest injustice.
IV. RELIEF REQUESTED
For the foregoing reasons, Plaintiff respectfully requests that the Court:
- Conduct a targeted evidentiary hearing on contract formation pursuant to 9 U.S.C. § 4;
- Vacate its Order granting Defendant’s Motion to Compel Arbitration;
- In the alternative, deny Defendant’s Motion to Compel Arbitration; and
- Grant such other and further relief as the Court deems just and proper.
V. PRESERVATION OF RIGHTS
Plaintiff expressly maintains that no valid agreement to arbitrate was ever formed.
Plaintiff’s position is that he has never knowingly or affirmatively assented to any arbitration provision.
To the extent any arbitration proceedings are initiated pursuant to the Court’s Order, Plaintiff will participate only under protest and without waiver of any rights.
Plaintiff expressly reserves all rights to challenge the existence, validity, and enforceability of any purported arbitration agreement, as well as the jurisdiction of any arbitrator, in this Court or on appeal.
Dated at Baytown, Texas this 24th day of April 2026.
Respectfully submitted,
Youras Ziankovich, Esq.
Plaintiff Pro Se