Owen-Williams v. Bb&t Investments Services Inc ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ADOL OWEN-WILLIAMS,
Plaintiff,
Civil Action No. 06-948 (CKK)
v.
BB&T INVESTMENT SERVICES, INC.,
Defendant.
MEMORANDUM OPINION
(May 24, 2010)
By Memorandum Opinion and Order dated July 31, 2006, this Court granted Defendant
BB&T Investment Services, Inc.’s (“Defendant” or “BB&T”) request to compel arbitration of
Plaintiff’s breach of contract claims. The parties subsequently proceeded to arbitration, and a
final arbitration award was issued in Defendant’s favor. Plaintiff, proceeding pro se, now moves
the Court to vacate the unfavorable arbitration decision or, alternatively, to reconsider the Court’s
July 31, 2006 Order compelling arbitration in the first instance. Defendant opposes Plaintiff’s
motion and cross-moves for an order confirming the arbitration award. Upon consideration of
the parties’ cross-motions, responsive briefing and attachments thereto, the relevant case law and
statutory authority, and the record of this case as a whole, the Court shall DENY Plaintiff’s [11]
Motion to Vacate Arbitration Ruling and Motion for Reconsideration to Compel Arbitration and
shall GRANT Defendant’s [13] Application to Confirm Arbitration Award, for the reasons set
forth below.
I. BACKGROUND
The Court assumes familiarity with the factual background of this case, which is set forth
in detail in this Court’s July 31, 2006 Memorandum Opinion, Owen-Williams v. BB&T Inv.
Servs., Inc., Civ. Act. No. 06-948, 2006 U.S. Dist. LEXIS 52392 (D.D.C. July 31, 2006), and
therefore addresses herein only such facts as are necessary for resolution of the motions currently
before the Court.
A. Plaintiff’s Initial Breach of Contract Claims
This lawsuit stems from BB&T’s decision to rescind its offer of employment to Plaintiff.
In early 2006, Plaintiff interviewed for and was ultimately offered a position with the Defendant.
Id. at *1.1 The offer of employment was first conveyed orally via telephone on March 22, 2006,
by one of Defendant’s recruiters, T.J. Roccograndi. Id. at *3. The following day, March 23,
2006, Mr. Roccograndi sent a letter to Plaintiff regarding the job offer (“Employment Contract”),
along with an attached Protective Covenants Agreement (“Covenants Agreement”).2 Id. The
Employment Contract stated that “[a]ll employment offers are contingent upon standard
background checks . . . ,” and informed Plaintiff that his employment would begin April 10,
2006. Id. at *4; see also Employment Contract. The Covenants Agreement contained the
following arbitration clause:
1
For convenience, the Court draws the background facts of this case largely from its
description of the relevant facts as provided in its July 31, 2006 Memorandum Opinion. See
Owen-Williams v. BB&T Inv. Servs., Inc., Civ. Act. No. 06-948, 2006 U.S. Dist. LEXIS 52392(D.D.C. July 31, 2006).
2
The Employment Contract and Covenants Agreement are attached as Exhibit 4 to the
Notice of Removal, Docket No. [1].
2
The parties agree that any and all disputes, disagreements, claims, or other conflicts
regarding, relating to, or arising out of this Agreement, the Parties’ employment
relationship, any termination thereof, any employment-related act or practice by
Employer or its employees, representatives, or agents, any breach of this Agreement,
or any alleged breach of this Agreement, shall be subject and submitted to arbitration.
Owen-Williams, 2006 U.S. Dist. LEXIS 52392, *4; see also Covenants Agreement at 7.
Plaintiff signed both documents and returned them on March 24, 2006, the day he
received them. Owen-Williams, 2006 U.S. Dist. LEXIS 52392, *4.
Shortly thereafter, BB&T decided to rescind its employment offer based on information
disclosed during Plaintiff’s background check. Id. at *6. Mr. Roccograndi communicated
BB&T’s decision to Plaintiff on April 6, 2006 (i.e., prior to the date Plaintiff and Defendant had
agreed Plaintiff would begin his employment). Id. On April 11, 2006, Mr. Roccograndi again
spoke with Plaintiff and confirmed that the Compliance Department was not willing to approve
Plaintiff for hiring based upon information disclosed during the background investigation. Id.3
After unsuccessfully pursuing the matter further with Mr. Roccograndi, Plaintiff retained
counsel4 and filed suit in Superior Court of the District of Columbia alleging that Defendant
3
Plaintiff, in his opening Motion and Reply briefing, disputes the accuracy of these dates,
asserting that he was informed his first day of work would be on April 17, 2006 (rather than
April 10, 2006), and that he was notified of BB&T’s decision to rescind his offer of employment
on April 13, 2006 (rather than April 6, 2006). See Pl.’s Mot. to Vacate at p. 8, ¶¶ 35-36.
Plaintiff, however, offers no evidentiary support for these assertions nor did he previously
indicate to the Court that the dates set forth in its July 31, 2006 Memorandum Opinion were in
error. See generally id. Regardless, this dispute is immaterial to the issues now before the Court.
In essence, Plaintiff asserts that the dates listed above are each incorrect by one week; he does
not contest, however, that his offer of employment was rescinded prior to his official start date
with Defendant. Accordingly, the alleged difference of seven days has no impact on the outcome
of the Court’s decisions herein.
4
Although Plaintiff’s current motion is filed pro se, the Court notes that Plaintiff was
previously represented by counsel in this lawsuit as well as in the subsequent arbitration.
3
terminated him in violation of his employment contract. Id. On April 21, 2006, the day the
Complaint was filed, Plaintiff also filed an emergency motion for a temporary restraining order
(“TRO”) to prevent Defendant from filling Plaintiff’s position at BB&T. Id. That same day, the
first of two evidentiary hearings on Plaintiff’s requested TRO was held. Id. at *7. Superior
Court Judge Robert S. Tignor denied Plaintiff’s motion from the bench. Id. Three days later,
however, Judge Tignor vacated his denial and issued an order permitting the parties to offer
further evidence at an additional hearing. Id. Judge Tignor ultimately denied Plaintiff’s
requested temporary restraining in a final order on May 8, 2006. Id. at *8, n. 2.
Shortly thereafter, on May 19, 2006, the action was removed by Defendant to this Court.
See Notice of Removal. One week later, Defendant filed a Motion to Compel Arbitration, see
Docket No. [4], which the Court subsequently granted by Memorandum Opinion and Order dated
July 31, 2006. See Owen-Williams v. BB&T Inv. Servs., Inc., Civ. Act. No. 06-948, 2006 U.S.
Dist. LEXIS 52392 (D.D.C. July 31, 2006). Specifically, the Court found that the arbitration
agreement between the parties was a binding contract supported by consideration, that the
Federal Arbitration Act (“FAA”) preempts Georgia law and governs the agreement, and that
Defendant had not waived its right to enforce the arbitration agreement. Id. at *9. Accordingly,
the Court concluded that, “[g]iven the breadth of the arbitration agreement and the fact that
Plaintiff and Defendant’s dispute falls squarely within the language of the agreement, referring to
termination and breach, it is apparent that all of the issues in this action are subject to
arbitration.” Id. at *35. The Court therefore granted Defendant’s Motion to Compel Arbitration
and dismissed the action without prejudice. Id. In so doing, the Court specifically held that
dismissal, rather than a stay, was appropriate. Id. at *34-35. Plaintiff did not appeal the Court’s
4
July 31, 2006 Order nor did he file a motion for reconsideration of the Court’s decision.
B. Arbitration
On December 20, 2007, Plaintiff filed a Statement of Claim for arbitration with the
Financial Industry Regulatory Authority (“FINRA”), based upon the same allegations asserted in
his initial lawsuit. See Def.’s Opp’n, Docket No. [12], Ex. 4 (hereinafter, “Statement of
Claim”).5 A panel of three arbitrators was appointed, and an initial pre-hearing telephone
conference was held on April 30, 2008. See id., Ex. 6 (“Initial Pre-Hearing Conference
Scheduling Order”) at p. 5. At that time, an Initial Pre-Hearing Conference Scheduling Order
was entered. See id. at pp. 5-9. Discovery was set to close on July 3, 2008, and the hearing
session was scheduled to begin on Wednesday, July 23, 2008, and to continue through and
including Friday, July 25, 2008, as necessary, at the hearing site in Washington, D.C. Id. at p. 6.
Both parties were represented by counsel throughout the arbitration process. See id. at p. 5. No
objections were made by either side to the composition of the arbitration panel at the pre-hearing
conference. See id. at pp. 5-6 (indicating that the parties accepted the panel’s composition).
As is relevant to Plaintiff’s pending motion, the Court notes that on July 2, 2008, prior to
5
Plaintiff, in his reply briefing, urges the Court to exclude from consideration any of the
exhibits attached to Defendant’s Opposition to Plaintiff’s Motion to Vacate. Pl.’s Reply at 4.
According to Plaintiff, he “is unable to rebut any of the alleged exhibits that the Defense Counsel
heavily refers to in their Opposition Memorandum due to the fact that the Plaintiff was either
never served with said exhibits or the Defense Counsel deliberately buried said unmarked,
ungrouped, commingled exhibits in the document flood pile that the Defense delivered to
Plaintiff.” Id. The Court finds that this objection is without merit. Defendant has submitted a
certificate of service certifying that service of Defendant’s Opposition and exhibits was made on
Plaintiff. See Def.’s Opp’n, Ex. 17 (Certificate of Service). Moreover, Plaintiff admits receiving
the opposition itself as well as a large number of other documents along with it, and while the
volume of exhibits is not insubstantial, it is by no means inordinate. Accordingly, the Court
finds that Plaintiff has failed to demonstrate that Defendant’s exhibits must be excluded from
consideration.
5
the start of the arbitration hearing, Defendant filed a motion with the arbitration panel requesting
a witness scheduling accommodation. See Def.’s Opp’n, Ex. 7 (Motion for Witness Scheduling
Accommodation) (hereinafter, “Scheduling Mot.”). Defendant asked the panel to permit its
witness, Mr. Roccograndi, to testify on Friday, July 25, 2008, the last day of the hearing. See id.
Defendant represented that Mr. Roccograndi, who was no longer employed with BB&T, was at
that time enrolled as a summer student at West Virginia University and was scheduled to be in
class and taking final exams the week of the arbitration hearing. Id.; see also Def.’s Opp’n, Ex.
16 (Declaration of Thomas J. Roccograndi) (hereinafter, “Roccograndi Decl.”) ¶¶ 5-6.
Defendant therefore requested that, in the event Mr. Roccograndi’s live testimony was needed, he
be permitted to testify on Friday in order to accommodate his class schedule. See Scheduling
Mot. On July 10, 2008, after considering all submissions in connection with the motion, the
panel granted Defendant’s motion and ordered that Mr. Roccograndi would be permitted to
testify on Friday, July 25, 2008, in the event Defendant decided to call him as a witness. See
Def.’s Opp’n, Ex. 8 (Panel Order on Defendant’s Scheduling Motion).
The arbitration proceeded as scheduled. On the first day of the hearing, the parties —
including Plaintiff’s then-counsel — confirmed that they accepted the panel’s composition. See
Def.’s Opp’n, Ex 9 (Hearing Transcript - Vol. 1) (hereinafter, “Hrg Tr. Vol. 1”) at 4:3-8
(“Chairman []: At this point in time, given the disclosures have been made, the introductions
have been made, I would ask each of the parties to confirm that they accept the panel’s
composition?” [Plaintiff’s Counsel]: We accept the panel.”).6 After introductory remarks,
6
Defendant has attached at Exhibits 9 and 10 to its Opposition copies of the transcript for
the first two days of the arbitration hearing. Defendant notes, however, that the transcripts are
incomplete; although the first two days were recorded by a tape recorder, certain portions of the
6
Plaintiff’s counsel provided an opening statement, see id. at 9:21-11:21, and then proceeded to
present Plaintiff’s case, see id. at 26:6. Plaintiff’s counsel completed his presentation by mid-
afternoon that day, and Defendant then began to present its case. See id. at 140:4.
At the close of the day, the panel inquired as to the schedule for Defendant’s remaining
presentation. See id. at 197:2-198:1; see also Urban Decl. ¶ 4. Defendant’s counsel stated that
they had one or two witnesses left, including Mr. Roccograndi, but indicated that no decision had
yet been made as to whether Defendant would rely upon a transcript of Mr. Roccograndi’s prior
testimony before the D.C. Superior Court or would need to call him live on Friday, July 25, 2008.
See Hrg Tr. Vol. 1 at 197:2-198:1; see also Urban Decl. ¶ 4. In addition, Plaintiff’s counsel
advised the panel for the first time that he had a potential conflict on the morning of Friday, July
25, 2008. Urban Decl. ¶ 5. Specifically, Plaintiff’s counsel informed the panel that he had a
divorce and custody hearing in Maryland scheduled for that morning and that he had no control
over the timing nor could he secure anyone to cover the hearing for him; accordingly, he stated
that he would not be available for the arbitration until the afternoon on Friday, July 25, 2008. Id.
In response, the panel chairman advised the parties that the hearing would proceed the next day
as scheduled and that the panel would reserve its decision as to the remaining schedule. See Hrg.
Tr. Vol. 1 197:16-23 (“Chairman Urban: I’m prepared to say lets be here at 9:00 tomorrow,
recording are inaudible; in addition, Defendant indicates that the final day of the hearing was not
recorded. See Def.’s Opp’n at 3, n. 2. Defendant has therefore supplemented the hearing
transcript with the sworn declaration of Theodore W. Urban, who served as Chairman of the
FINRA arbitration panel that heard Plaintiff’s claims, see Def.’s Opp’n, Ex. 11 (Declaration of
Theodore W. Urban) (hereinafter, “Urban Decl.”), and the sworn declaration of Mr. Roccograndi,
see Roccograndi Decl. The Court emphasizes that Plaintiff has not raised any issues concerning
the quality and completeness of the arbitration hearing record, and there is no indication that the
absence of a complete hearing transcript has prejudiced him in any way.
7
present [Defendant’s] additional witnesses and if we do need to have Mr. Roccograndi we will
come back on Friday for Mr. Roccograndi and closing arguments. If you [Defendant] are to
make a decision that you don’t need Mr. Roccograndi, and you’re just prepared to use his
transcript testimony then hopefully (inaudible) and closing tomorrow.”). Both counsel for
Plaintiff and counsel for Defendant agreed with this approach. Id. at 197:23-198:2 (“Chairman
Urban . . . Is that fair enough for everybody? [Defendant’s counsel]: Yes. [Plaintiff’s counsel]:
Yes.”). The first day of the hearing was then adjourned. Id. at 198:2-3.
The hearing resumed the next morning, Thursday, July 24, 2008, with the presentation of
the Defendant’s case. See Def.’s Opp’n, Ex. 11 (Hearing Transcript - Vol. 2) (hereinafter, “Hrg
Tr. Vol. 2”) at 2:3-9. During the course of the day, counsel for Defendant advised the panel that
he planned to call Mr. Roccograndi live on Friday, July 25, 2008. Urban Decl. ¶ 7. Plaintiff’s
counsel again confirmed that he would be unavailable until the afternoon on Friday, July 25,
2008, as he anticipated that the hearing in Maryland would last until approximately noon. See id.
¶ 7; see also Hrg. Tr. Vol. 2 at 2:14-25. In addition, one of the panel members advised the panel
chairman that she was not able to stay late on Friday afternoon. Urban Decl. ¶ 7. Accordingly,
the panel members discussed whether to proceed on Friday afternoon, once Plaintiff’s counsel
was available, or to continue the hearing to another day. Id. Because the parties would need
time to present their closing arguments in addition to the time needed to present Defendant’s
remaining witnesses, the panel concluded that the hearing would not likely be completed in one
afternoon. Id. The panel therefore decided that the hearing should be continued to another time
when all parties were available for a full day hearing. Id. “In making this determination, the
panel specifically considered the likelihood that [Plaintiff’s counsel] would not arrive at the
8
arbitration hearing in downtown Washington, D.C. until 1:00 p.m. or later; the potential length of
Mr. Roccograndi’s testimony; and the desirability of providing both parties ample time to present
their closing arguments without interruption. For these reasons, the panel continued the
hearing.” Id. As Chairman Urban avers, “BB&T did not request that the hearing be continued
from July 25, 2008, and, to the best of my knowledge, was ready, willing and able to proceed on
July 25, 2008 to complete the Arbitration, if [Plaintiff’s counsel] had been available.” Id. ¶ 8.
Furthermore, as set forth in Mr. Roccograndi’s Declaration, he had made arrangements to travel
to Washington, D.C. on Friday, July 25, 2008, for the arbitration hearing and was prepared to
testify in person on that date, until he was informed by Defendant’s counsel that the hearing had
been rescheduled. Roccograndi Decl. ¶¶ 7-10. The final day of the hearing was ultimately
rescheduled by FINRA to September 9, 2008. Id.
Thereafter, on August 13, 2008, (i.e., during the intervening period of time prior to the
rescheduled hearing date), Defendant filed a Motion for Non-Party Subpoena with FINRA.
See Def.’s Opp’n, Ex. 12 (Motion for Non-Party Subpeona) (hereinafter, “Mot. for Subpoena”).
As set forth therein, Defendant requested the authority to subpoena a representative of the
Registrar’s office at the University of Maryland in order to address evidence offered by Plaintiff
for the first time during the hearing that he was a graduate of the University of Maryland, College
Park. See id. Defendant indicated that the Registrar representative would testify that the
University of Maryland, University College had no records of Plaintiff’s attendance at or
graduation from the institution. See id. at 1-2. The panel granted Defendant’s motion and issued
a Subpoena Duces Tecum for the Assistant Registrar to appear at the September 9, 2008 hearing.
See Def.’s Opp’n, Ex. 13 (Subpoena Duces Tecum issued on August 26, 2008).
9
The final day of the hearing commenced as scheduled on September 9, 2008. See Urban
Decl. ¶ 2. Although no transcript for that day is available, see supra pp. 6-7, n. 6, the present
record indicates that Defendant offered into evidence the videotaped deposition testimony of Mr.
Roccograndi as well as the live testimony of the University of Maryland Assistant Registrar. See
Roccograndi Decl. ¶ 12; see also Def.’s Opp’n, Ex. 13 (Subpoena Duces Tecum issued on
August 26, 2008). The arbitration hearing closed that day, see Urban Decl. ¶ 2, and the panel
issued its decision on September 22, 2008, id.; see also Def.’s Opp’n, Ex. 14 (Award FINRA
Dispute Resolution) (hereinafter, “Final Arbitration Award”).
As set forth in the Final Arbitration Award, judgment was awarded in Defendant’s favor.
See id. Specifically, the panel concluded that,:
[a]fter considering the pleadings, the testimony and evidence presented at the
hearing, the Panel has decided in full and final resolution of the issues submitted for
determination as follows:
Respondent is not liable and Claimant’s claims are denied, with prejudice.
Any and all claims for relief not specifically addressed herein, including Claimant’s
request for punitive damages and the parties’ requests for attorneys’ fees are denied.
Id. at 2. No further written explanation was provided. See generally id. The panel assessed
hearing fees in the amount of $7,200.00 to Defendant. See id. at 3.
C. The Parties’ Pending Cross-Motions
As indicated above, the panel issued its final decision on September 22, 2008. Shortly
thereafter, Plaintiff, proceeding pro se, filed the now-pending Motion to Vacate Arbitration
Ruling and Motion for Reconsideration to Compel Arbitration. See Docket No. [11] (hereinafter,
“Pl.’s Mot. to Vacate”). Defendant filed an Opposition to Plaintiff’s Motion, see Docket No.
10
[12] (hereinafter, “Def.’s Opp’n”), as well as a Cross-Motion to Confirm the Arbitration Award,
see Docket No. [13] (hereinafter, “Def.’s Cross-Mot. to Confirm”). Plaintiff subsequently filed
an Opposition to Defendant’s Cross-Motion to Confirm, see Docket No. [14] (hereinafter, “Pl.’s
Opp’n”), as well as a Reply in support of his Motion to Vacate, see Docket No. [16] (hereinafter,
“Pl.’s Reply”). Finally, Defendant filed a Reply in support of its Cross-Motion to Confirm. See
Docket No. [15] (hereinafter, “Def.’s Reply”). Accordingly, the parties’ Cross-Motions are now
ripe and ready for the Court’s review and resolution.
II. LEGAL STANDARD
A. Legal Standard for Reconsideration of Final Judgment
Plaintiff first moves for reconsideration of the Court’s July 31, 2006 Order granting
Defendant’s motion to compel arbitration. Courts treat such motions for reconsideration as a
“[Fed. R. Civ. P.] 59(e) motion if filed within 10 days of entry of the challenged order and as a
Rule 60(b) motion if filed thereafter.” United States v. Pollard, 290 F. Supp. 2d 153, 156
(D.D.C. 2003) (internal quotations omitted). In this case, Plaintiff’s motion was filed on
September 29, 2008, more than two years after the challenged Memorandum Opinion was issued
on July 31, 2006. Accordingly, the Court shall treat Plaintiff’s motion as seeking relief from a
final judgment pursuant to Rule 60(b), which provides that:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
11
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
The Rule “was intended to preserve ‘the delicate balance between the sanctity of final
judgments . . . and the incessant command of the court’s conscience that justice be done in light
of all the facts.’” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)
(quoting Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970)). As the D.C.
Circuit has emphasized, Rule 60(b) “gives the district judge broad latitude to relieve a party from
a judgment,” Richardson v. Nat’l R.R. Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. 1995), but
“should be only sparingly used,” Good Luck Nursing Home, 636 F.2d at 577. In addition, the
Rule specifies that any motions for relief from a final judgment “must be made within a
reasonable time — and for reasons (1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c).
B. Legal Standard for Vacating or Affirming Arbitration Award
As the D.C. Circuit has “repeatedly recognized, ‘judicial review of arbitral awards is
extremely limited.’” Kurke v. Oscar Gruss & Son, Inc., 454 F.3d 350, 354 (D.C. Cir. 2006)
(quoting Teamsters Local Union No. 61 v. United Parcel Serv., Inc., 272 F.3d 600, 604 (D.C.
Cir. 2001)). Courts “‘do not sit to hear claims of factual or legal error by an arbitrator.’” Id.Rather, the FAA, 9 U.S.C. § 10(a), lists only four grounds upon which an arbitration award may
12
be vacated:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of
them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the
hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and
material to the controversy; or of any other misbehavior by which the rights of any
party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that
a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a).7 By contrast, “[u]nder the terms of § 9 [of the FAA], a court ‘must’ confirm an
arbitration award ‘unless’ it is vacated, modified, or corrected ‘as prescribed” in section 10(a).
Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576, 582 (2008); see also 9 U.S.C. § 9.
7
The D.C. Circuit has previously recognized that, in addition to the four statutory
grounds listed in 9 U.S.C. § 10(a), an arbitration award may be vacated if it is in “manifest
disregard of the law.” See, e.g., Kurke, 454 F.3d at 354. The Supreme Court, however, recently
held in Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576, 582 (2008), that the provisions
set forth in 9 U.S.C. § 10 “provide the FAA’s exclusive grounds for expedited vacatur.” In light
of this holding, “some courts have refused to entertain vacatur based on ‘manifest disregard for
the law.” See Regnery Publishing, Inc. v. Miniter, 601 F. Supp. 2d 192, 195 (D.D.C. 2009)
(citing cases). Neither the Supreme Court nor the D.C. Circuit has ultimately resolved this issue,
however, and it therefore remains an open question in this Circuit whether the “manifest
disregard” standard survives Hall Street. See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., __
U.S. __, 2010 WL 1655826, *7, n.3 (Apr. 27, 2010) (declining to decide whether “manifest
disregard” survives Hall Street); Regnery Publishing, Inc. v. Miniter, Civ. Act. No. 09cv7039,
2010 WL 1169843, *1 (D.C. Cir. Mar. 17, 2010) (assuming without deciding that the “manifest
disregard of the law” standard survives Hall Street). The Court concludes that it not need resolve
the question at this time, as even a generous reading of Plaintiff’s pro se pleadings provides no
indication that he intended to argue that the arbitration award should be vacated as in manifest
disregard of the law. See generally Pl.’s Mot. to Vacate; Pl.’s Reply. Moreover, it is readily
apparent that even if he had made this argument and even if the standard remains viable in this
Circuit, Plaintiff has not shown that “(1) the arbitrators knew of a governing legal principle yet
refused to apply it or ignored it altogether and (2) the law ignored by the arbitrators was well
defined, explicit, and clearly applicable to the case.” LaPrade v. Kidder, Peabody & Co., 246
F.3d 702, 706 (D.C. Cir. 2001).
13
III. DISCUSSION
As indicated above, this matter comes before the Court upon the filing by Plaintiff of a
Motion to Vacate Arbitration Ruling and Motion for Reconsideration to Compel Arbitration.
Plaintiff advances three principal arguments in support of his motion. First, Plaintiff argues that
the Court’s Order compelling arbitration was improper because Plaintiff was not an employee of
BB&T. Second, Plaintiff contends that the arbitration award was obtained by fraud. Third,
Plaintiff asserts that the arbitration panel failed to sufficiently articulate a reason for its findings.
Although Plaintiff’s pro se briefing does not clearly distinguish between his request to vacate and
his request for reconsideration, the Court understands the first of these arguments as challenging
the propriety of the Court’s July 31, 2006 Order and the latter two arguments as challenging the
validity of the arbitration award itself. In addition, Defendant has cross-moved for an order
affirming the arbitration award. The Court shall address the Plaintiff’s arguments first before
turning to consider BB&T’s motion to confirm.
A. Plaintiff’s Motion for Reconsideration
Plaintiff first moves for reconsideration of the Court’s July 31, 2006 Memorandum
Opinion and Order compelling arbitration. According to Plaintiff, the Defendant falsely
represented in its Motion to Compel Arbitration that Plaintiff was an employee of BB&T at the
time of his termination and was for that reason subject to the arbitration clause in the Covenants
Agreement. See Pl.’s Mot. to Vacate at 13-15. Plaintiff contends, however, that Defendant has
since “admitted” during the course of the arbitration hearing that Plaintiff was never an employee
of BB&T. Id. at 14. Specifically, Plaintiff asserts that Defendant disclosed for the first time
during arbitration the fact that it had “never initiated the official act of making the Plaintiff an
14
employee of BB&T by submitting the Plaintiff’s Form U-4 to NASD/FINRA;” Plaintiff argues
that, had this fact been known, “this Honorable Court would have been compelled to find that
Plaintiff was NEVER an employee of BB&T” and would not have granted the Defendant’s
Motion to Compel Arbitration. Id. Given this new “admission” by BB&T, Plaintiff contends
that the Court’s Order compelling arbitration should therefore be vacated. Id.
The Court does not agree. First, to the extent Plaintiff moves for reconsideration of the
Court’s July 31, 2006 Memorandum Opinion and Order, Plaintiff’s motion is time-barred.
Although Plaintiff’s opening motion does not specify which provisions of Rule 60(b) he believes
apply in this instance, Plaintiff indicates in his reply briefing that he intended to invoke Rule
60(b)(2), (3), and (6). See Pl.’s Reply at 5, 6. Under those provisions of Rule 60(b)(2), “the
court may relieve a party or its legal representative from a final judgment, order, or proceeding
for:”
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b) [i.e., 28 days];
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
***
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Significantly, Rule 609c) further specifies that motions for relief “under
Rule 60(b) must be made within a reasonable time period,” which for motions made pursuant to
Rule 60(b)(2) and (3) is “no more than a year after the entry of the judgment or order.” Fed. R.
Civ. P. 60(c)(1). “This one-year time limit is ‘ironclad,’ and cannot be extended by the Court.”
Owens v. District of Columbia, 631 F. Supp. 2d 48, 58 (D.D.C. 2009) (quoting Goland v. Central
15
Intelligence Agency, 607 F.2d 339, 372 (D.C. Cir. 1978) and citing Carr v. District of Columbia,
543 F.2d 917, 925-26 (D.C. Cir. 1976)). In this case, the challenged final judgment was issued
on July 31, 2006, but Plaintiff did not file his Rule 60(b) motion until September 29, 2008 — i.e.,
more than two years after the entry of the order. As such, Plaintiff’s motion for relief under Rule
60(b)(2) and (3) is untimely. See id. (denying motion for relief under Rule 60(b)(2)&(3) as it was
filed four months beyond the one-year time limit).
Plaintiff’s attempt to avoid this outcome by relying on the Rule’s catch-all provision in
paragraph (b)(6), which is not subject to the same one year time bar, is without merit. The
Supreme Court “has underscored the stringency of the Rule by holding that the catch-all
provision, Rule 60(b)(6), is mutually exclusive with the grounds for relief in the other provisions
of Rule 60(b), which include [] newly discovered evidence[] and fraud, [both] of which require
that the motion be brought within one year of the judgment from which relief is sought.” Kramer
v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007); cf. Williamsburg Wax Museum, Inc. v. Historic
Figures, Inc., 810 F.2d 243 (D.C. Cir. 1987) (“Rule 60(b)(6) permits a court to grant relief from
a final judgment for ‘any other reason justifying relief . . .,’” which “courts have universally
interpreted [] to mean other than the reasons specified in subsections 60(b)(1)-60(b)(5)”).
Accordingly, because Plaintiff’s motion is properly construed under Rule 60(b)(2) and/or Rule
60(b)(3), the Court may not consider the motion under Rule 60(b)(6) as well.
Second, even if Plaintiff’s motion under Rule 60(b) had been timely filed, it is clearly
without merit. Contrary to Plaintiff’s present characterization, Defendant did not argue — and
the Court did not find — that Plaintiff was an employee of BB&T at the time of his termination.
Nor did the Court suggest that application of the arbitration agreement hinged upon a finding that
16
Plaintiff had been an employee of BB&T. Rather, as the Court emphasized in its July 31, 2006
Memorandum Opinion, the arbitration agreement applied to “any and all disputes, disagreements,
claims or other conflicts regarding, relating to, or arising out of [the Covenants] Agreement, the
Parties’ employment relationship, any termination thereof, any employment-related act or
practice by Employer or its employees, representatives, or agents, any breach of [the Covenants]
Agreement, or any alleged breach of [the Covenants] Agreement.” Owen-Williams, 2006 U.S.
Dist. LEXIS 52392, at *34 (quoting Covenants Agreement at 7). Thus, the parties’ agreement to
arbitrate clearly extended to “any disputes arising out of the agreement,” and was not predicated
upon a finding that Plaintiff had formally entered into an employment relationship with BB&T.
See id. at *16 (emphasis added). Accordingly, Plaintiff’s [11] Motion shall be DENIED to the
extent he seeks reconsideration of the Court’s July 31, 2006 Memorandum Opinion and Order
pursuant to Rule 60(b).
B. Motion to Vacate Arbitration Award
The Court turns next to consider Plaintiff’s request for an order vacating the arbitration
award. As indicated above, Plaintiff argues that the arbitration award should be vacated because
(1) it was obtained by fraud and (2) the arbitration panel failed to sufficiently articulate a reason
for its finding in favor of Defendant. Defendant opposes the motion on substantive grounds and
also raises the issue of the Court’s jurisdiction to entertain Plaintiff’s motion. For the reasons set
forth below, the Court concludes that it has jurisdiction over the present motion, but finds that
Plaintiff has failed to demonstrate that vacatur is appropriate.
1. The Court Has Jurisdiction To Entertain Plaintiff’s Motion To Vacate
Defendant first argues that this Court is without jurisdiction to rule on Plaintiff’s request
17
to vacate. As Defendant correctly notes, the Court, in its July 31, 2006 Memorandum Opinion
and Order, granted Defendant’s Motion to Compel Arbitration and dismissed Plaintiff’s claims
without prejudice. Owen-Williams, 2006 U.S. Dist. LEXIS 52392, at *34-35. In light of this
dismissal, Defendant contends that Plaintiff was required to file a new action to have the
arbitration award vacated. Because he instead filed a motion to vacate in the same civil action,
Defendant concludes that the Court lacks jurisdiction to entertain the present motion. See Def.’s
Opp’n at 7-8.
The FAA itself does not independently confer subject matter jurisdiction on a district
court. See Hall Street, 552 U.S. at 581-82. Accordingly, the Court’s subject matter jurisdiction
must be based on an independent source. In this case, the lawsuit was removed to this Court on
the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. The question now before the
Court, then, is whether it has been deprived of its diversity jurisdiction over this case as a result
of its previous Order dismissing the action without prejudice. Neither party has directed the
Court to any case law from within this Circuit addressing whether a court is deprived of
jurisdiction to entertain a motion to vacate an arbitration award where, as here, the motion was
filed under a case number previously dismissed without prejudice in favor of arbitration nor is
the Court itself aware of any such legal precedent. The issue thus appears to be one of first
impression in the D.C. Circuit.
Several courts from outside this jurisdiction, however, have addressed this particular
issue, and their decisions are instructive. For example, in Green v. Ameritch Corp., 200 F.3d 967(6th Cir. 2000), the Sixth Circuit concluded, under circumstances nearly identical to those at
issue here, that the district court had jurisdiction to resolve a motion to vacate an arbitration
18
award. The plaintiff in Green filed suit alleging that the defendant had unlawfully discriminated
and retaliated against him in violation of several state discrimination statutes. Id. at 969. The
suit was originally filed in state court and was subsequently removed to federal district court by
the defendant based upon diversity jurisdiction. Id. at 970. Shortly thereafter, the parties entered
into an arbitration agreement; the district court therefore dismissed plaintiff’s case with prejudice
based upon the parties’ agreement to arbitrate. Id. The case then proceeded to arbitration, and an
arbitration award was ultimately issued in favor of the defendant. Id. at 971. The plaintiff
responded by filing a motion to vacate the arbitration award with the district court, but — as here
— did so “under the same case number as the original action.” Id. at 972. The district court
nonetheless considered and ruled on the substantive merits of the motion, ultimately issuing an
order vacating the arbitration award. Id. On appeal, the defendant challenged the district court’s
subject matter jurisdiction, arguing that, “since the district court dismissed the case . . ., pursuant
to the parties’ agreement to arbitrate, there was ‘no open proceeding below’ through which [the
plaintiff] could challenge the arbitrator’s ruling.” Id. Instead, the defendant urged that the
plaintiff should have “institut[ed] a new action under § 10 of the FAA in order to challenge the
arbitral award.” Id. The Sixth Circuit disagreed:
[Defendant] essentially argues that the procedure employed by [plaintiff] to challenge
the arbitrator’s decision deprived the district court of the subject matter jurisdiction
it otherwise would have had. Rather than filing a “new” motion under the FAA,
[plaintiff] filed an “appeal” of the arbitrator’s decision using the case number of the
dismissed case, and naming the same judge. [Defendant] contends that because
[plaintiff] proceeded under the old case, he also failed to reestablish diversity
jurisdiction. Although the proper procedure for initiating a proceeding under § 10
when there is no prior jurisdictional basis is to file a motion to vacate the award that
sets forth the facts establishing jurisdiction, [plaintiff]’s pleading error did not bar the
district court’s exercise of subject matter jurisdiction. The district court clearly had
diversity jurisdiction over the action. . . . In these circumstances, the district court
19
properly exercised subject matter jurisdiction. . . .
Id. at 973-74.
The Second Circuit has similarly held that “a court which orders arbitration retains
jurisdiction to determine any subsequent application involving the same agreement to arbitrate,
including a motion to confirm an arbitration award.” Smiga v. Dean Witter Reynolds, Inc., 766
F.2d 698, 705 (2d Cir. 1985) (“the application for an order to arbitrate, up to and including the
confirmation award, was all one proceeding, and thus, were not separable controversies”).
Relying on this language, at least one other court has, in agreement with the Sixth Circuit,
concluded that courts retain jurisdiction to hear a motion to vacate even where the original order
compelling arbitration dismissed the plaintiff’s claims. See, e.g., Collins v. Horton, Inc., 361 F.
Supp. 2d 1085, 1091 (D. Ariz. 2005) (“While it is true that the Court dismissed Plaintiffs’ claims
in favor of arbitration . . ., and that judgment was deemed entered pursuant to Fed. R. Civ. P.
58(b) . . ., courts have held that once a court obtains jurisdiction in an action and enters an order
compelling arbitration, that court retains jurisdiction with respect to subsequent motions to
confirm or vacate.”).
Defendant has not provided the Court with any legal precedent directly holding to the
contrary. First, Defendant cites to Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1382
(11th Cir. 1988), for the proposition that proceedings to vacate or confirm an arbitration are
instituted by filing a motion in the district court that functions as the initial pleading in a post-
arbitration case. See Def.’s Opp’n at 7-8. Bonar does not, however, directly address whether the
failure to do so deprives a court of subject matter jurisdiction. On this point, the Sixth Circuit
has explained that “[a]lthough the proper procedure for initiating a proceeding under § 10 when
20
there is no prior jurisdictional basis is to file a motion to vacate the award that sets forth the facts
establishing jurisdiction,” the failure to do so does “not bar the district court’s exercise of subject
matter jurisdiction” where, as here, the court had diversity jurisdiction over the original action.
Green, 200 F.3d at 973-74.
Second, Defendant relies upon the D.C. Circuit’s opinion in LaPrade, Liddle &
Robinson, LLP v. Kidder Peabody & Co., Inc., 146 F.3d 899 (D.C. Cir. 1998). See Def.’s Opp’n
at 8. Again, however, that case does not directly address the question now before the Court, and
the statements relied upon by Defendant are dicta only and do not necessarily conflict with the
decisions outlined above. In LaPrade, the district court stayed the underlying action pending
arbitration of the plaintiff’s claims pursuant to the parties’ arbitration agreement. LaPrade,146
F.3d at 901. During the course of the subsequent arbitration proceedings, the plaintiff filed a
separate action in state court seeking a stay of the arbitration hearings; in response, the defendant
returned to the district court requesting issuance of a temporary restraining order barring
plaintiff’s efforts to obtain a stay of the arbitration in state court as a violation of the district
court’s prior orders. Id. The district court agreed and issued a preliminary injunction and
awarded sanctions against plaintiff. Id. On appeal, the plaintiff argued that the district court
lacked jurisdiction to enter the sanctions order because it had only ordered the case stayed and
had not actually ordered the parties to enter arbitration; accordingly, the plaintiff asserted that the
district court did not have jurisdiction over the arbitration. Id. 902. The Circuit Court disagreed,
finding that “the district court had jurisdiction to address this situation: it retained jurisdiction
over the original suit, and the Arbitration Act did not divest it of jurisdiction.” Id. at 903. While
the Court of Appeals emphasized in support of this holding that the district court had stayed,
21
rather than dismissed, the original action, it did not opine whether dismissal of the action would
have, in fact, deprived the district court of jurisdiction. See id. Its statements on this issue are
therefore dicta and do not control this action.
Third and finally, Defendant cites to Bull HN Information Systems, Inc. v. Hutson, 5 F.
Supp. 2d 68 (D. Mass. 1998). See Def.’s Opp’n at 8. In that case, the parties proceeded directly
to arbitration, and suit was initiated only after the arbitration had been completed when the
plaintiff filed a motion to vacate the arbitration award. Bull HN Info. Servs., 5 F. Supp. 2d at 69.
The district court subsequently entered a final judgment granting the motion to vacate. Id. The
parties therefore returned to arbitration, and a second arbitration award was eventually issued.
Id. The plaintiff again sought to vacate the newly issued arbitration award, but did so by filing a
second motion to vacate in the district court under the same civil action number assigned to its
first motion to vacate. Id. at 69-70. While recognizing that the issue was “not crystal clear,” the
district court ultimately concluded that it had no jurisdiction to take further action in the case
given its previous final judgment vacating the original arbitration award; the district court
indicated that the plaintiff’s second motion to vacate should instead be filed as a new, separate
action. Id. at 71. As is apparent, then, the district court in Bull HN Information Services, Inc.,
was concerned with a question distinct from that now before the Court — namely, whether it had
jurisdiction to maintain a “supervisory role once an arbitration award has been vacated and final
judgment has [been] entered.” Id. at 70.
Accordingly, in the absence of any case law directly to the contrary, the Court is
persuaded by the logic set forth in Green, Smiga, and Collins, that it has jurisdiction over the
pending Motion to Vacate. The parties do not dispute that the Court had original jurisdiction
22
over Plaintiff’s lawsuit pursuant to 28 U.S.C. § 1332. Additionally, the parties’ arbitration
agreement recognizes that judgment on the final arbitration award “may be entered in any court
having jurisdiction thereof.” Covenants Agreement at 7-8. Moreover, while the Court dismissed
Plaintiff’s claims, it did so without prejudice. See Owen-Williams, 2006 U.S. Dist. LEXIS
52392, at *35. Given these circumstances, the Court concludes that “[Plaintiff’s] pleading error
d[oes] not bar the [] [C]ourt’s exercise of subject matter jurisdiction.” Green, 200 F.3d at 974.
2. Plaintiff Has Not Shown That Vacatur Is Appropriate
The Court turns next to consider Plaintiff’s substantive arguments in support of his
motion to vacate. As indicated above, Plaintiff argues that the arbitration award should be
vacated because (1) it was obtained by fraud and (2) the arbitration panel failed to sufficiently
articulate a reason for its finding in favor of Defendant. For the reasons set forth below, the
Court finds that neither argument has merit.
a. Plaintiff has not demonstrated that the arbitration award was
procured by fraud.
Pursuant to 9 U.S.C. § 10(a)(1), the Court may vacate an arbitration award where “the
award was procured by corruption, fraud, or undue means.” Here, Plaintiff identifies two
allegedly fraudulent actions taken by Defendant during the course of the arbitration hearing, each
of which he believes justifies an order vacating the arbitration award in Defendant’s favor. First,
Plaintiff contends that Defendant fraudulently obtained a two-month delay in the arbitration
hearing in an attempt to secure more time to “dredge up something salacious in an attempt to
destroy the Plaintiff’s character.” Pl.’s Mot. to Vacate at 12. According to Plaintiff, the
Defendant “did not like the direction in which the Hearing was going.” Pl.’s Reply at 3. Counsel
23
for Defendant therefore falsely alleged that Mr. Roccograndi was a student at West Virginia
University and was available to testify in person only on the final day of the hearing; then, once it
became clear that Plaintiff’s counsel had a scheduling conflict on July 25, 2008 (i.e., the last
scheduled day for the arbitration hearing), Defendant falsely insisted that “they needed Mr.
Roccograndi to testify in person,” knowing that this would result in a significant delay in the
arbitration hearing. Id.; see also Pl.’s Mot. to Vacate at 12.
The Court is not so persuaded. As the record makes clear, Defendant advised the
arbitration panel and Plaintiff of Mr. Roccograndi’s scheduling conflict well in advance of the
scheduled hearing. Indeed, Defendant filed a motion formally requesting an order permitting Mr.
Roccograndi to testify on the final day in early July. See Def.’s Opp’n, Ex. 7 (Motion for
Witness Scheduling Accommodation) (hereinafter, “Scheduling Motion”). The panel
subsequently granted that motion on July 10, 2008, after considering all submissions in
connection with the motion. See Def.’s Opp’n, Ex. 8 (Panel Order on Defendant’s Scheduling
Motion). Accordingly, all parties were aware as of that date that Mr. Roccograndi would be able
to testify, if needed, only on Friday, July 25, 2008. Plaintiff’s present claim that Defendant
waited until the arbitration hearing to “falsely claim[]” that Mr. Roccograndi “was all of a sudden
not available” is thus wholly without merit.
Rather, the record demonstrates that the delay in the arbitration hearing became necessary
only when Plaintiff’s counsel advised the panel for the first time at the hearing that he had a
potential conflict on the morning of Friday, July 25, 2008. Urban Decl. ¶ 5. Given this conflict
as well as the fact that one of the panel members was unable to stay late on Friday afternoon, the
panel concluded that the hearing would not likely be completed in one afternoon. Urban Decl. ¶
24
7. The panel therefore decided that the hearing should be continued to another time when all
parties were available for a full day hearing. Id. As indicated above, the panel chairman has
averred that “[i]n making this determination, the panel specifically considered the likelihood that
[Plaintiff’s counsel] would not arrive at the arbitration hearing in downtown Washington, D.C.
until 1:00 p.m. or later; the potential length of Mr. Roccograndi’s testimony; and the desirability
of providing both parties ample time to present their closing arguments without interruption. For
these reasons, the panel continued the hearing.” Id. The request to continue the hearing was not
made by BB&T, who remained at all times “ready, willing and able to proceed on July 25, 2008
to complete the Arbitration, if [Plaintiff’s counsel] had been available.” Id. ¶ 8; see also
Roccograndi Decl. ¶¶ 7-10 (averring that he had made arrangements to travel to Washington,
D.C. on Friday, July 25, 2008, and was prepared to testify in person on that date).
Plaintiff complains, however, that this decision was made based upon the Defendant’s
false representation that Mr. Roccograndi was a student at West Virginia University, such that
the delay was nonetheless fraudulently obtained. See Pl.’s Mot. to Vacate at 12; Pl.’s Reply at 3.
As support for this proposition, Plaintiff states that “there has been zero evidence proffered by
BB&T or Mr. Roccograndi to show that Mr. Roccograndi was a student at West Virginia
University,” Pl.’s Reply at 3, and that he himself “later inquire[d] and learn[ed] that Roccograndi
was not currently a student at West Virginia University,” Pl.’s Mot. to Vacate at 12; see also Pl.’s
Reply at 3-4 (indicating that “Plaintiff’s investigator searched in depth and found no one by the
name of Thomas James Roccograndi, or any other person named Roccograndi, at West Virginia
University during the time of the Arbitration Hearing”). Plaintiff has also attached a flier
purportedly from West Virginia University that includes an exam schedule for the summer
25
session 2008, indicating that exams were held only on June 27, 2008 and on August 7, 2008. See
id., Ex. 5 (flier). The implication, of course, is that “had Roccograndi even been a student at
West Virginia University the exam schedule that the University established would have in no
manner, shape or form conflicted with the three original Arbitration Hearing dates in July.” Pl.’s
Mot. to Vacate at 12.
Contrary to Plaintiff’s claims, Defendant has proffered evidence that Mr. Roccograndi
was a summer student at West Virginia University at the time of the arbitration hearing.
Specifically, Defendant has submitted the Declaration of Mr. Roccograndi, in which he avers
under oath that he “was attending the summer session at West Virginia University” during July
of 2008, and “was unable to appear before the FINRA Panel, in Washington, D.C., on July 23-
24, 2008 because [he] was busy attending classes and preparing for final exams.” Roccograndi
Decl. ¶¶ 5-6. Plaintiff’s unsupported, hearsay statements that he himself “later inquire[d] and
learn[ed] that Roccograndi was not currently a student at West Virginia University” or that an
investigator checked the records on his behalf are insufficient to rebut the sworn testimony of Mr.
Roccograndi.8 Plaintiff offers no documentary evidence to support these claims nor does he
provide any detail indicating to whom he allegedly spoke and what specifically he was told or
8
The Court notes that Plaintiff, in filing his pro se pleadings, has indicated that he
“solemnly swear[s] under the penalty of perjury that [he] is competent to testify in the above
caption[ed] [case]” and that “the contents of the statement[s] set forth in [his Motion and Reply]
are the absolute truth to the best of [his] knowledge, information, and belief.” See Pl.’s Mot. to
Vacate at 1; Pl.’s Reply at 1. Accordingly, the Court, in deference to Plaintiff’s pro se status, has
treated any statements made by Plaintiff attesting to his personal knowledge of the facts at issue
as if they had been asserted in an unsworn declaration under penalty of perjury pursuant to 28
U.S.C. § 1746. Nonetheless, to the extent Plaintiff’s statements consist solely of unsupported,
hearsay statements, such statements are clearly insufficient to support his motion for an order
vacating the arbitration award in this case.
26
proffer a statement from the alleged investigator. Moreover, even accepting Plaintiff’s evidence
that no exams were scheduled for July 23-25, 2008, this does not demonstrate fraud on the part
of Defendant. Admittedly, Defendant’s motion for a witness scheduling accommodation broadly
indicates that during “July 23-24, 2008, [Mr. Roccograndi] is in class and is taking final exams.”
See Scheduling Mot. ¶ 2. The clear import of this request, however, was that the panel
accommodate Mr. Roccograndi’s school schedule and permit him to testify on Friday, July 25,
2008, as “he ha[d] only one class” that day, which he could more easily skip. Id.; see also
Roccograndi Decl. ¶ 6 (“I was unable to appear before the FINRA Panel, in Washington, D.C.,
on July 23-24, 2008 because I was busy attending classes and preparing for final exams.”).
Plaintiff has failed to demonstrate that this statement is false.
Finally, the Court notes that even if Plaintiff had shown that the Defendant secured a two-
month delay in the arbitration hearing based upon fraudulent and false statements — which the
Court expressly rejects — Plaintiff has not shown how this allegedly fraudulent
misrepresentation and resulting delay was material to the arbitration’s final award. Indeed,
Plaintiff’s counsel did not object to the delay at the time the hearing postponement was
scheduled. See Hrg. Tr. Vol. 1 at 197:16-198:2. Moreover, Plaintiff himself acknowledges that
Roccograndi’s eventual testimony “offered absolutely no new evidence that was not already a
part of the record.” Pl.’s Mot. to Vacate at 12. While the delay did permit BB&T time to
respond to Plaintiff’s allegations at the hearing that he was a graduate of the University of
Maryland, College Park (as is discussed in detail below), the question of Plaintiff’s academic
qualifications is a minor point and Plaintiff does not argue, nor does the Court find, that the
panel’s decision would have been different had such evidence not been presented. Accordingly,
27
in the absence of proof that arbitration award was procured by fraud, Plaintiff has not
demonstrated that vacatur under 9 U.S.C. § 10(a)(1) is appropriate.
Second, Plaintiff asserts that Defendant fraudulently presented false testimony that the
University of Maryland, College Park had no record of his attendance. Pl.’s Mot. to Vacate at
12-13. According to Plaintiff, Defendant intentionally presented this false information
notwithstanding that (a) the “University of Maryland has recently had to concede that hundreds
of thousands of records have be[en] lost and or misplaced” and (b) the position with BB&T “did
NOT mandate a University Degree.” Id. at 13. Significantly, Plaintiff offers no evidence other
than his own unsupported, hearsay statements to demonstrate that the University of Maryland in
fact lost certain records, as he now claims; once again, plaintiff has not proffered any
documentary evidence to support this claim nor does he provide any detail indicating the alleged
basis for this present claim. Plaintiff also has not argued that he was somehow denied a fair
opportunity to make this argument to the arbitration panel itself during the hearing. Similarly,
even assuming that the position with BB&T did not require a college degree, Plaintiff does not
dispute that he testified during the arbitration hearing that he was a graduate of the University of
Maryland, College Park (indeed, he continues to insist that he attended the University of
Maryland, College Park); as such, evidence regarding the veracity of that statement is clearly
relevant. Finally and most significantly, Plaintiff offers no evidence that the testimony presented
by Defendant was false or fraudulently obtained. For that reason, Plaintiff has not demonstrated
that vacatur under 9 U.S.C. § 10(a)(1) is appropriate.
28
b. Because arbitrators are not required to explain the basis for their
awards, the lack of an explanation does not justify vacatur.
Plaintiff also argues that the arbitration award should be vacated because the arbitration
panel did not provide an explanation of the award. Pl.’s Mot. to Vacate at 15. While Plaintiff
does not clearly indicate under which of the provisions set forth at 9 U.S.C. § 10 the absence of
an explanation falls, he appears to imply in his opening motion that the panel’s failure to provide
an explanation demonstrates that the arbitrators were partial to Defendant in violation of section
10(a)(2). See id. at 15. In his reply briefing, however, Plaintiff indicates that the arbitrators
failure to provide an explanation was in violation of 9 U.S.C. § 10(a)(4), which permits a court to
vacate an arbitration award “where the arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the subject matter submitted was not
made.” See Pl.’s Reply at 6. Regardless, under either theory, Plaintiff’s argument is without
merit.
“The Supreme Court has observed that arbitration awards may be made without
explanation.” Sargent v. Paine Webber Jackson & Curtis, Inc., 882 F.2d 529, 532 (D.C. Cir.
1989) (citing Wilko v. Swan, 346 U.S. 427, 436 (1953)). As the D.C. Circuit has explained, “an
explanation requirement would unjustifiably undermine the speed and thrift sought to be
obtained by the ‘federal policy favoring arbitration.’” Id. (quoting Moses H. Cone Mem’l Hosp.
v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). Accordingly, “[i]n the context of arbitration,
where there is no statutory requirement that the panel state its reasons, and (as here) none
imposed by the institution under whose auspices the arbitration occurred, . . . the interest in
assuring that judgment be swift and economical . . . must generally prevail.” Sargent, 882 F.2d
29at 533; cf. Kurke, 454 F.3d at 354-55 (“‘Even where an explanation for an award is deficient or
non-existent, we will confirm it if a justifiable ground for the decision can be inferred from the
facts of the case.’”) (quoting Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d
383, 390 (2d Cir. 2003)). In this case, Defendant asserts — and Plaintiff does not dispute — that
FINRA itself does not require that arbitration awards issued under its rules be accompanied by a
written explanation. See FINRA Manual, Rule 13904, available at http://finra.complinet.com/
en/display/display_ main.html?rbid=2403&element_id=4292 (last visited May 18, 2010).
Because the panel was not required to provide a written explanation of its decision, the failure to
do so does not justify vacatur of the arbitration award under either 9 U.S.C. § 10(a)(2) or §
10(a)(4).
Finally, the Court notes that Plaintiff also appears to suggest in passing that a finding of
partiality on the part of the arbitrators is warranted because: (a) the arbitration panel’s conclusion
allegedly contradicts that reached by Superior Court Judge Tignor and therefore indicates that the
panel “ignored the evidence presented to them;” and (b) the fact that the arbitrators assessed all
arbitration costs to the defendant, rather than to plaintiff, is “conclusive and indisputable
evidence that the Arbitrators found that BB&T was indeed liable but as Industry Arbitrators they
refuse to assess punitive damages . . . against a fellow Member Firm of the Industry no matter
how guilty they find they were.” Pl.’s Mot. to Vacate at 15. Neither of these claims, however, is
sufficient to warrant vacatur under 9 U.S.C. § 10(a)(2).
“‘It is well established that a mere appearance of bias is insufficient to demonstrate
evident partiality.’” Williams Fund Private Equity Grp., Inc. v. Engel, 519 F. Supp. 2d 100, 104
(D.D.C. 2007) (quoting Alston v. UBS Fin. Servs., Inc., Civ. Act. No. 04-1798, 2006 WL 20516,
30
at *3 (D.D.C. Jan. 2, 2006)). “The party seeking to vacate an arbitration award on this ground
must establish ‘specific facts that indicate improper motives on the part of an arbitrator.’” Id.(quoting Al-Harbi v. Citibank, N.A., 85 F.3d 680, 683 (D.C. Cir. 1996)). This Plaintiff has not
done. First, as the Court explained in its July 31, 2006 Memorandum Opinion, while Judge
Tignor temporarily vacated his previous decision denying Plaintiff’s request for injunctive relief,
he ultimately denied the temporary restraining order, concluding that “[i]nasmuch as Plaintiff did
not actually commence employment with Defendant, he is unlikely to prevail on his request for
injunctive relief.” See Def.’s Opp’n, Ex. 1 (Order on Plaintiff’s Motion for Temporary
Restraining Order). The arbitration award finding in Defendant’s favor is not, therefore, in
conflict with Judge Tignor’s final decision. Regardless, even if the arbitration panel had reached
a conclusion different from that of Superior Court Judge Tignor, this by itself would not have
demonstrated that the panel ignored evidence or was partial to Defendant. To the contrary, the
panel’s award clearly indicates that they “consider[ed] the pleadings, the testimony and evidence
presented at the hearing.” See Final Arbitration Award at 5. Second, the Court is not persuaded
that the panel’s assessment of the hearing costs to Defendant, rather than Plaintiff, may be read as
an indication that the panel believed Defendant was liable but did not want to rule against him
because of bias towards a “fellow Member Firm.” Such an argument is entirely speculative and
unsupported by the type of specific facts necessary to indicate improper motives on the part of an
arbitrator. Moreover, the Court notes that Plaintiff’s counsel twice confirmed Plaintiff’s
acceptance of the panel composition during the arbitration hearing and at no time voiced an
objection to the panel members. See Initial Pre-Hearing Conference Scheduling Order at pp. 5-6
(indicating that the parties accepted the panel’s composition); Hrg Tr. Vol. 1 at 4:3-8 (“Chairman
31
[]: At this point in time, given the disclosures have been made, the introductions have been made,
I would ask each of the parties to confirm that they accept the panel’s composition?” [Plaintiff’s
Counsel]: We accept the panel.”). Accordingly, the Court finds that Plaintiff has not
demonstrated that vacatur under either 9 U.S.C. § 10(a)(2) for these additional reasons. The
Court shall therefore DENY Plaintiff’s [11] Motion insofar as he moves for an order vacating the
arbitration award in Defendant’s favor.
C. Defendant’s Cross-Motion to Confirm
All that remains before the Court, then, is the Defendant’s [13] Cross-Motion to Confirm
the Arbitration Award. Defendant moves for confirmation of the award pursuant to 9 U.S.C. § 9,
which provides as follows:
If the parties in their agreement have agreed that a judgment of the court shall be
entered upon the award made pursuant to the arbitration, and shall specify the court,
then at any time within one year after the award is made any party to the arbitration
may apply to the court so specified for an order confirming the award, and thereupon
the court must grant such an order unless the award is vacated, modified, or corrected
as prescribed in sections 10 and 11 of this title. If no court is specified in the
agreement of the parties, then such application may be made to the United States
court in and for the district within which such award was made.
As the Supreme Court has observed, “[o]n application for an order confirming the arbitration
award, the court ‘must grant’ the order ‘unless the award is vacated, modified, or corrected.’”
Hall Street, 552 U.S. at 587. “There is nothing malleable about ‘must grant,’ which
unequivocally tells courts to grant confirmation in all cases, except when one of the ‘prescribed’
exceptions applies.” Id.; see also Int’l Thunderbird Gaming Corp. v. United Mexican States, 473
F. Supp. 2d 80, 83 (D.D.C. 2007) (“in the absence of a legal basis to vacate, this court has no
discretion but to confirm the award”) aff’d 255 Fed. App’x 531 (D.C. Cir. 2007).
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In this case, the parties’ arbitration agreement specifies that “[t]he award and any order
from the arbitration shall be final and binding on all parties to such arbitration and judgment
thereon may be entered in any court having jurisdiction thereof.” Covenants Agreement at 7-8.
Under the plain language of 9 U.S.C. § 9, this agreement permits Defendant to apply to the
United States court in and for the district within which the award was made for confirmation of
the award. As indicated above, the arbitration hearing took place in Washington, D.C. See Final
Arbitration Award. Plaintiff’s application for confirmation of the award to this Court is thus
proper. Moreover, because Plaintiff has not demonstrated that the arbitration award must be
vacated or modified, the Supreme Court has made clear that this Court “must grant” Defendant’s
application for an order confirming the arbitration award. See Hall Street Assocs., 552 U.S. at
587. The Court shall therefore GRANT Defendant’s [13] Cross-Motion to Confirm Arbitration
Award.
IV. CONCLUSION
For the reasons set forth above, Plaintiff’s [11] Motion to Vacate Arbitration Ruling and
Motion for Reconsideration to Compel Arbitration shall be DENIED and Defendant’s [13]
Application to Confirm Arbitration Award shall be GRANTED. An appropriate Order
accompanies this Memorandum Opinion.
Date: May 24, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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