Fogleman v. Testerman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GEORGE W. FOGLEMAN,
Plaintiff-Appellee,
v. No. 98-1782
CHRISTOPHER BROOKS TESTERMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-98-42-5-BO)
Submitted: October 27, 1998
Decided: November 17, 1998
Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
J. Anthony Penry, Matthew W. Sawchak, SMITH, HELMS, MUL-
LISS & MOORE, L.L.P., Raleigh, North Carolina, for Appellant.
John F. Bloss, CLARK & WHARTON, Greensboro, North Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Christopher Brooks Testerman appeals from the district court's
denial of his petition to vacate the National Association of Securities
Dealers, Inc. (NASD) arbitrator's award entered against him, and the
district court's grant of Appellee George W. Fogleman's petition to
confirm the NASD arbitration award. Finding no error, we affirm.
In July 1995, Fogleman filed a Statement of Claim with the NASD
alleging that Testerman, a stockbroker, committed fraud and breached
fiduciary duties owed to Fogleman by knowingly and intentionally
selling Fogleman virtually worthless securities at inflated prices. The
parties agreed to submit the dispute to arbitration. At an initial pro-
ceeding in July 1997, scheduled to last two days, Fogleman presented
evidence substantiating the claims. However, the session concluded
before Fogleman was able to fully present his case, necessitating a
second session. After reviewing the parties' submissions regarding
availability, the panel ordered the parties to select either November
5-7 or 12-14, 1997, as the dates for the second hearing. Fogleman's
counsel, John F. Bloss, informed the panel that he was available for
either set of dates. Testerman's counsel, Michael Q. Carey, asserted
that neither he nor any member of his firm would be available for the
first set of dates due to another arbitration, and that the second set of
dates was also unworkable because Carey himself was scheduled for
jury duty beginning the week of November 10. The record, however,
indicates that Carey could have postponed his scheduled jury duty.
Carey asserted that he would be unable to appear for arbitration until
May 1998. On October 7, 1997, the panel set November 12-14 as the
hearing date.
Testerman appeared at the hearing without counsel, informed the
panel that Carey could not appear, and requested a postponement.
After consideration, the panel refused to grant a postponement, stating
that it had been reasonable in trying to set a time, and that postponing
the second hearing until May 1998 was unreasonable because it
imposed too long a delay on the case. The panel also cited and noted
for the record the numerous items of correspondence between counsel
and the NASD attempting to resolve the scheduling conflict. The
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panel informed Testerman that he could participate in the hearing
without counsel, and that it was not prejudiced toward him due to his
counsel's actions. The panel stated that it would consider Testerman
pro se and would "lean over backwards" to ensure that Testerman
understood the proceedings. Testerman elected to leave the hearing
upon the advice he previously received from counsel. The hearing
went forth in Testerman's absence.
The panel entered a unanimous decision on December 16, 1997,
finding that Testerman had engaged in fraud and breached his fidu-
ciary duty to Fogleman, and awarding Fogleman $90,239, plus post-
hearing interest. Fogleman filed a petition in the district court to con-
firm the arbitration award. Testerman filed a cross-petition to vacate
the award on the ground that the panel engaged in misconduct under
9 U.S.C. § 10(a)(3) (1994) by reconvening the proceedings on
November 12, 1997. The district court confirmed the arbitration
award and denied Testerman's petition to vacate the award. Tester-
man appealed.
We review the district court's decision to confirm the arbitrator's
award de novo. See Zandford v. Prudential-Bache Sec., Inc., 112 F.3d
723, 726 (4th Cir. 1997). Vacatur is appropriate only in a strictly lim-
ited number of instances, including when the "arbitrators were guilty
of misconduct in refusing to postpone the hearing, upon sufficient
cause shown." 9 U.S.C. § 10(a)(3). Arbitration is favored because it
promotes the expeditious resolution of disputes, and thus a federal
court's review of an arbitration decision is limited to determining
"whether the arbitrators did the job they were told to do--not whether
they did it well, or correctly, or reasonably." Remmey v. PaineWeb-
ber, Inc., 32 F.3d 143, 146 (4th Cir. 1994) (internal quotations omit-
ted); see Scott v. Prudential Sec. Inc., 141 F.3d 1007, 1016 (11th Cir.
1998); DVC-JPW Invs. v. Gershman, 5 F.3d 1172, 1174 (8th Cir.
1993). If there is any reasonable basis for the arbitrator's decision not
to postpone a hearing, including a desire to expedite the proceedings
even in the face of counsel's competing scheduling obligations, the
court should not intervene. See Scott, 141 F.3d at 1016; DVC-JPW,
5 F.3d at 1174; Schmidt v. Finberg, 942 F.2d 1571, 1573-74 (11th
Cir. 1991).
Here, the arbitrators gave the parties two sets of dates to choose
from in scheduling the second hearing. The panel determined that the
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paramount interest was in providing the plaintiff with a quick and fair
hearing, and thus opted against postponing the second hearing until
almost ten months after the initial hearing, even though Testerman's
counsel asserted this was his earliest availability date. Testerman was
present and represented by counsel during the first two-day hearing
in July 1997, and was able to cross-examine witnesses. Moreover,
Carey could have arranged to be present at the second hearing, but
chose not to do so. The panel was expressly permitted by NASD rules
to continue with the second hearing in Testerman's absence. The dis-
trict court did not err in finding that the panel had not engaged in mis-
conduct when it refused to postpone the second hearing. See Scott,
141 F.3d at 1016; PaineWebber, 32 F.3d at 146.
We affirm the district court's denial of Testerman's petition to
vacate the arbitration award and the district court's confirmation of
the arbitration award. See 9 U.S.C. § 9 (1994). We grant Fogleman's
motion to submit the case on the briefs because the facts and legal
contentions are adequately set forth in the materials before the court
and argument would not aid the decisional process. We deny Fogle-
man's request for sanctions under Fed. R. App. P. 38. See Fed. R.
App. P. 38, 1994 advisory committee's note.
AFFIRMED
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