Eggelston v. Marshall Durbin Food Corporation

Filing 37

ORDER that the report and recommendation is due to be adopted and accepted in part and reversed in part.The Court is of the opinion that the new case should be randomly assigned in accordance with the Courts internal operating procedures;Marshall Dur bins Motion to Vacate Arbitrators Award or in the Alternative, Motion to Reinstate CV 10-2290 and Vacate (doc. 21) is hereby DENIED IN PART, specifically to the extent that it asks the Court to reinstate this closed civil action that was dismissed on June 21, 2012. The Clerk is hereby DIRECTED to open a new case with a new case number, randomly assign it in accordance with the Courts internal operating procedures, and refile Marshall Durbins pending motion (doc. 21) as the initial pleading in the new case, as an application to vacate an arbitration award pursuant to 9 U.S.C. § 9. Signed by Magistrate Judge John E Ott on 2/4/2016. (KAM, )

FILED
2016 Feb-04 PM 01:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
PHILLIP EGGELSTON,
Plaintiff,
vs.
MARSHALL DURBIN FOOD
CORPORATION,
Defendant.

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6:10-cv-02290-JEO

ORDER
This is a closed case in which Magistrate Judge John E. Ott, on December
23, 2015, filed his report and recommendation recommending the following:
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defendant, Marshall Durbin Food Corporation’s (“Marshall
Durbin’s”), “Motion to Vacate Arbitrator’s Award or in the
Alternative, Motion to Reinstate CV 10-2290 and Vacate” (doc.
21) be denied in part, specifically to the extent that it asks the
court to reinstate this closed civil action that was dismissed on
June 21, 2012;

2)

the Clerk should be directed to open a new case, assign it to
Magistrate Judge John E. Ott, and refile Marshall Durbin’s
pending motion (doc. 21) as an initial pleading in the new case,
as an application to vacate an arbitration award pursuant to 9
U.S.C. § 9;

3)

the filing fee in such new case should be deemed waived;

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4)

the Clerk should be further directed to refile all of the material
subsequently filed in this action (docs. 22 through 31, inclusive)
in the new action; and

5)

all such pleadings, motions and other materials should be
deemed filed in the new case as of the date they were originally
filed in this action, so as to preclude any limitations period
concerns.

(Doc. 34.) On January 6, 2016, Marshall Durbin filed objections to the report and
recommendation. (Doc. 35.) Marshall Durbin objected to the magistrate judge’s
finding that this Court lacks jurisdiction in this closed civil action over its
application to vacate; to the magistrate judge’s recommendation that the Clerk
should refile its motion to vacate in a newly opened case; and to the magistrate
judge’s recommendation that the newly opened case should be assigned to him.
The undersigned was then randomly drawn to review the report and
recommendation. Having now carefully reviewed and considered de novo all the
materials in the court file, including the report and recommendation and Marshall
Durbin’s objections thereto, the Court is of the opinion that the report and
recommendation is due to be adopted and accepted in part and reversed in part.
The Court is of the opinion that the new case should be randomly assigned in
accordance with the Court’s internal operating procedures; accordingly, the
magistrate judge’s recommendation that the new case be assigned to him is hereby
REVERSED. However, because the Court is of the opinion that it lacks jurisdiction
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in this particular closed case to consider the pending motions to vacate or confirm
the arbitrator’s award, the report and recommendation is hereby is ADOPTED and
the recommendation is ACCEPTED in all other respects.
Consequently, Marshall Durbin’s “Motion to Vacate Arbitrator’s Award or
in the Alternative, Motion to Reinstate CV 10-2290 and Vacate” (doc. 21) is
hereby DENIED IN PART, specifically to the extent that it asks the Court to
reinstate this closed civil action that was dismissed on June 21, 2012. The Clerk is
hereby DIRECTED to open a new case with a new case number, randomly assign it
in accordance with the Court’s internal operating procedures, and refile Marshall
Durbin’s pending motion (doc. 21) as the initial pleading in the new case, as an
application to vacate an arbitration award pursuant to 9 U.S.C. § 9. The Clerk is
hereby DIRECTED to WAIVE the filing fee in the new case. The Clerk is further
hereby DIRECTED to refile all of the material subsequently filed in this action
(docs. 21 through 36, inclusive) in the new action. All such pleadings, pending
motions and other materials are hereby deemed filed in the new case as of the date
they were originally filed in this action, so as to preclude any limitations period
concerns.

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DONE and ORDERED on February 4, 2016.

_____________________________
L. Scott Coogler
United States District Judge
160704

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