Gorsuch, Ltd. v. Wells Fargo National Bank Association

Filing 89

ORDER granting 76 Amended Motion to Confirm Arbitration Award. By Judge Philip A. Brimmer on 8/21/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-00970-PAB-MEH
GORSUCH, LTD., a Colorado corporation,
Plaintiff,
v.
WELLS FARGO NATIONAL BANK ASSOCIATION,
Defendant.

ORDER

This matter is before the Court on the Amended Motion to Confirm Arbitration
Award [Docket No. 76] filed by plaintiff Gorsuch, Ltd. (“Gorsuch”) on July 10, 2013.
Gorsuch requests that the Court confirm the Final Award of Arbitration Panel [Docket
No. 76-2] issued on April 18, 20131 and the Final Order of Arbitration Panel [Docket No.
76-3] issued on June 26, 2013. The arbitration panel awarded Gorsuch damages and
costs in the amount of $2,186,752.80, Docket No. 76-2 at 3, as well as administrative
fees and expenses, including compensation for the arbitrator, in the amount of $10,550.
Docket No. 76-3 at 3. Defendant Wells Fargo National Bank Association (“Wells
Fargo”) objects to the relief requested on the basis that it has already paid Gorsuch the
full amount awarded by the arbitration panel. Docket No. 79 at 1, ¶ 2; see also Docket
No. 85 at 2, ¶ 5). Gorsuch contends that Wells Fargo’s payment does not alter

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The award incorrectly lists the date it was issued as August 18, 2013. Docket
No. 66-3 at 2.

Gorsuch’s right to a confirmation of the award. Docket No. 85 at 2, ¶ 5.
Section 9 of the Federal Arbitration Act provides that:
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, . . . 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.
9 U.S.C. § 9; see P&P Indus., Inc. v. Sutter Corp., 179 F.3d 861, 866 (10th Cir.
1999) (“a district court has no power to confirm an arbitration award under § 9 of the
FAA unless the parties have agreed, explicitly or implicitly, that any eventual arbitration
award shall be subject to judicial confirmation”); Hall Street Assocs., L.L.C. v. Mattel,
Inc., 552 U.S. 576, 587 (2008) (“On application for an order confirming the arbitration
award, the court ‘must grant’ the order ‘unless the award is vacated, modified, or
corrected as prescribed in sections 10 and 11 of this title.’ 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.”). The parties’ agreement in
this case anticipated judicial confirmation of an award. Docket No. 1-2 at 12, § 7.11(b)
(“Judgment upon any award rendered in an arbitration may be entered in any court
having jurisdiction . . . .”).
Courts disagree as to whether they may confirm an arbitration award when the
party opposing confirmation has already complied with the award in full. As the District
Court for the Western District of Pennsylvania explained,
Some federal courts have held that “there must be some type of controversy
necessitating judicial enforcement of an [arbitral] award in order to justify its
confirmation by court order.” Local 2412 [sic] of the United Mine Workers of
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America v. Consolidation Coal Co., 682 F. Supp. 399, 400 (S.D.Ill. 1988).
Courts adhering to that view generally focus on the enforcement or
implementation of an arbitral award rather than on the underlying dispute
resolved by that award. Derwin v. General Dynamics Corp., 719 F. 2d 484,
491 (1st Cir. 1983) (“The present case involves no such ‘new dispute’ to be
distinguished (or not distinguished) from the one resolved by the arbitrator.”);
Steris Corp. v. International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, 489 F. Supp. 2d 501, 515
(W.D.Pa. 2007) (following “decisions from several jurisdictions holding that
confirmation is improper in the absence of any actual controversy regarding
the validity of an award or compliance with it”). Other federal courts have
concluded that an order confirming an arbitral award may be entered even
when there is no “occasion warranting enforcement.” Insurdata Marketing
Services, LLC v. Healthplan Services, Inc., 352 F. Supp. 2d 1252, 1255
(M.D.Fla. 2005). Courts taking the latter position tend to focus on the
underlying controversy resolved by an arbitral decision rather than on the
parties’ compliance with the decision itself. Zeiler v. Deitsch, 500 F. 3d 157,
169 (2d Cir. 2007). Even fully satisfied monetary awards have been
confirmed by federal courts. Collins v. D.R. Horton, Inc., 361 F. Supp. 2d
1085, 1093 (D. Ariz. 2005) (“The mere fact that Horton has satisfied a portion
of its obligation under the arbitration award does not divest the court of
authority to confirm that portion of the award—satisfaction and confirmation
are separate issues.”); District Council No. 9 v. APC Painting, Inc., 272 F.
Supp. 2d 229, 239 (S.D.N.Y. 2003) (stating that whether arbitral awards have
been satisfied “has no bearing on whether [they] should be confirmed”).
Ameriprise Bank, FSB v. PNC Bank, Nat’l Ass’n, 2012 WL 5906400, at *7 (W.D. Pa.
Nov. 26, 2012). Another court in this district recently confirmed an arbitration award,
despite the opposing party’s compliance with the award, on the grounds that
confirmation of the award did not implicate the question of compliance and that there
was no basis under the FAA for vacating, modifying, or correcting the award. Will v.
Parsons Evergreene, LLC, No. 08-cv-00898-DME-CBS, 2011 WL 2792398, at *1 (D.
Colo. July 15, 2011).
Wells Fargo relies on Local 2414 and Derwin for the proposition that the “request
to confirm the award in the absence of any dispute is unwarranted, impermissible, and

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moot.” Docket No. 79 at 3, ¶ 5. However, the cited cases turn in large part on the
specific policy concerns inherent in labor disputes and the importance of resolving such
disputes through arbitration. See Local 2414, 682 F. Supp. at 400 (“to confirm these
awards in the absence of any concrete dispute would merely serve to circumvent
Congress’ goal of eliminating the cost and complexity of litigation from labor disputes”);
Derwin, 719 F.2d at 490-91 (“Ordinarily, disputes involving the meaning and application
of prior arbitral labor awards are themselves proper subject for arbitration. If judicial
confirmation is granted, General Dynamics believes the union will come to court later
with a host of grievances involving off-the-job passes, presenting the incidents as acts
of contempt in violation of the order of confirmation. The company fears that this
procedure will cause the court to lose its bearings and begin adjudicating disputes
which should be handled through the contract grievance process. The company is
clearly correct that where the parties have agreed to arbitrate disputes over the
meaning of their collective bargaining agreements, established labor policy significantly
restricts the role of the federal courts.”). Concerns pertaining to dispute resolution in
the context of organized labor are not relevant to the matter at hand.
Rather, the Court is bound by the plain language of the FAA, which mandates
confirmation of an award “unless the award is vacated, modified or corrected.” 9 U.S.C.
§ 9. Neither party argues that the award should be altered in any way. See generally
Docket Nos. 76, 79, and 85. Furthermore, the Court finds persuasive those cases
treating confirmation of an award as a summary proceeding separate and distinct from
an action to enforce the award. See Zeiler, 500 F.3d at 169 (“A district court confirming
an arbitration award does little more than give the award the force of a court order. At
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the confirmation stage, the court is not required to consider the subsequent question of
compliance.”); see also Mikelson v. United Servs. Auto. Ass’n, 227 P.3d 559, 565
(Hawai’i App. 2010) (citing Ottley v. Schwartzberg, 819 F.2d 373 (2d Cir. 1987)
(granting petition to confirm arbitration award despite defendant’s argument that it was
in compliance with award)); Will, 2011 WL 2792398, at *1 (absent grounds for
modification, correction, or vacatur, court had to confirm arbitration award “even though
Parsons does not dispute the award and has complied with it.”).
As the parties’ agreement grants the Court power to confirm the arbitration
award, see P&P Indus., 179 F.3d at 866, and as there is no dispute regarding the
propriety of the award, it is
ORDERED that the Amended Motion to Confirm Arbitration Award [Docket No.
76] filed by plaintiff Gorsuch, Ltd. is GRANTED. It is further
ORDERED that the Final Award of Arbitration Panel, executed on April 18, 2013,
and attached hereto as Exhibit A, is CONFIRMED. It is further
ORDERED that the Final Order of Arbitration Panel, executed on June 26, 2013,
and attached hereto as Exhibit B, is CONFIRMED. It is further
ORDERED that, in compliance with 9 U.S.C. § 13, plaintiff Gorsuch, Ltd. shall file
the following papers with the Clerk of Court:
(a) The agreement; the selection or appointment, if any, of an
additional arbitrator or umpire; and each written extension of the time, if any,
within which to make the award;
(b) The award; and

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(c) Each notice, affidavit, or other paper used upon an application to
confirm, modify, or correct the award, and a copy of each order of the court
upon such an application.

DATED August 21, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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