Murillo v. A Better Way Wholesale Autos, Inc. et al
ORDER granting 59 Motion for Attorney's Fees; denying as moot 60 Motion to Stay; denying 61 Motion to Alter or Amend Judgment; granting 64 Motion for Entry of Judgment in a Separate Document. Pursuant to Fed. R. Civ. P. 11(c)(3), the Court orders Attorney Votre to show cause within seven days as to why he has not violated Fed. R. Civ. P. 11(b) by filing the redundant motion for reconsideration now before the Court. Signed by Judge Vanessa L. Bryant on 10/10/2019. (Shafer, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
REBECCA M. MURILLO,
A BETTER WAY WHOLESALE
AUTOS, INC and WESTLAKE
No. 3:17-cv-1883 (VLB)
October 8, 2019
MEMORANDUM OF DECISION ON DENYING DEFENDANT’S MOTION TO STAY
[DKT. 60] AND MOTION TO ALTER JUDGMENT [DKT. 61] AND GRANTING
PLAINTIFF’S MOTION FOR ATTORNEY FEES [DKT. 59] AND MOTION FOR ENTRY
OF JUDGMENT [DKT. 64]
On July 15, 2019, the Court granted [Dkt. 58] Plaintiff’s Rebecca Murillo’s
motion to affirm an arbitration award [Dkt. 40] against A Better Way Wholesale
Autos, Inc.’s (“ABW”) and Westlake Services, LLC’s motion to vacate [Dkt. 45].
ABW now moves for reconsideration of the Court’s July 15, 2019 pursuant to Fed.
R. Civ. P. 59(e). [Dkt. 61]. ABW seeks a stay of judgment pending the Court’s
resolution of ABW’s motion for reconsideration. [Dkt. 60]. Also pending are Ms.
Murillo’s Motion to Enter Judgement against ABW [Dkt. 64] and Motion for Attorney
Fees for having to confirm the arbitration award and having to oppose ABW’s
motion to vacate [Dkt. 59]. For reasons set forth below, the Court DENIES ABW’s
Motion for Reconsideration [Dkt. 61] and DENIES its Motion for a Stay [Dkt. 62].
The Court GRANTS Ms. Murillo’s Motion to Award Attorney Fees [Dkt. 59] in the
amount of $14,600.00 and enters judgment consistent with the July 15, 2019 Order.
Pursuant to Fed. R. Civ. P. 11(c)(3), the Court orders Attorney Votre to show cause
within seven days as to why he has not violated Fed. R. Civ. P. 11(b) by filing the
redundant motion for reconsideration now before the Court.
In sum, Ms. Murillo filed suit against ABW alleging, inter alia, unfair trade
practices in connection with the purchase and financing of a used automobile. [Dkt.
1 (Compl.)]. ABW and co-defendant Westlake Services, LLC’s moved to stay the
proceedings and compel arbitration based on terms in the purchase order and
retail installment contract, respectively, and Plaintiff agreed. [Dkt. 33 (ABW Stay &
Compel Arbitration Mot.); Dkt. 34 (Plf. Resp. ABW Arbitration Mot.); Dkt. 37
(Westlake Stay Mot.); Dkt. 38 (Plf. Resp. Westlake Stay Mot.)]. The Court granted
ABW’s motion to stay the proceedings and arbitrate on May 15, 2018 and
Westlake’s similar motions on August 30, 2018. [Dkt. 35]; [Dkt. 39].
In October 2018, an arbitrator awarded Ms. Murillo compensatory damages,
statutory damages, interest, attorney fees, and punitive damages equal to twentyfive times the compensatory damages. [Dkt. 40 (Mot. to Re-open and Affirm)]. The
Court affirmed the arbitration award over ABW’s motion to vacate. [Dkt. 58 (Ord.
granting Mot. to Affirm Arbitration; denying Mot. to Exclude; denying Mot. to
As a technical matter, prior to this Order, the Court had not yet entered
judgment for the Plaintiff. Consequently, ABW’s motion under Fed. R. Civ. P. 59(e)
is premature. Therefore, ABW’s seeks reconsideration of the Court’s July 15, 2019
Order. Pursuant to Local Rule 7(c), motions for reconsideration must be filed within
seven days of the entry of the initial decision or order. ABW filed its motion on
August 12, 2019, so it is also untimely. In the interest of judicial efficiency, we will
consider ABW’s motion under Fed. R. Civ. P. 59(e) on the merits, as if the judgment
was entered contemporaneous with the Court’s July 15, 2019 Order.
A motion to alter or amend a judgment under Fed. R. Civ. P. 59(e) must be
filed no later than 28 days of entry of the judgment.1 “The standard for granting
such a motion is strict, and reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked—
matters, in other words, that might reasonably be expected to alter the conclusion
reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
District courts may alter or amend judgment “to correct a clear error of law or
prevent manifest injustice.” Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d
Cir. 2004) (internal quotations omitted).
“‘It is well-settled that Rule 59 is not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking a second bite at the apple...’” Analytical Surveys, Inc. v. Tonga
Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156
F.3d 136, 144 (2d Cir.1998)); see also Shrader, 70 F.3d at 257 (“[A] motion to
reconsider should not be granted where the moving party seeks solely to relitigate
The Court considers ABW as having satisfied the timing requirement. The
Motion to Alter or Amend the Judgment was filed on the 28th day after the Court’s
order affirming the arbitration.
an issue already decided.”). Such a motion “‘is not a means to reargue those issues
already considered when a party does not like the way the original motion was
resolved.’” Doe v. Winchester Bd. Of Educ., No. 3:10CV1179 VAB, 2017 WL 662898,
at *2 (D. Conn. Feb. 17, 2017) (quoting Pierce v. Lee, No. 3:08CV1721 VLB, 2010 WL
4683911, at *1 (D. Conn. Nov. 4, 2010)). “A motion for reconsideration is an
extraordinary remedy, and this Court will not reconsider issues already examined
simply because [a party] is dissatisfied with the outcome of his case. To do
otherwise would be a waste of judicial resources.” Stoner v. Young Concert Artists,
Inc., No. 11 CIV. 7279 LAP, 2013 WL 2425137, at *1 (S.D.N.Y. May 20, 2013) (citations
A district court’s decision to deny a party’s motion to alter or amend
judgment under Fed. R. Civ. P. 59(e) is reviewed for abuse of discretion. Munafo v.
Metro. Transp. Auth., 381 F.3d at 105 (2d Cir. 2004).
Rather than showing controlling decisions or data overlooked by the Court
in its July 15, 2019 decision, ABW reiterates the same arguments previously raised
in its Motion to Vacate [Dkt. 44 (Mem. of Law in Sup. Of Mot. to Vacate)]. In some
instances, the argument is verbatim, without citation to the fact that the Court has
already considered and rejected the argument.
First, ABW’s factual summary in its Memorandum in Support of its Rule 59(e)
motion [Dkt. 61 at 2-4] is taken verbatim from the factual summary in ABW’s
Memorandum in Support of its Motion to Vacate [Dkt. 44 at 1-5], except for the fact
that the earlier brief contains the complete text of the arbitrator’s award and
reasoning. By contrast, the latter brief only contains the arbitrator’s categorical
award amounts. [Dkt. 61 at 2-4]. ABW presents no factual data overlooked by the
Court in its July 15, 2019 Order for purposes of its Fed. R. Civ. P. 59(e) motion.
A. The Arbitrator’s award constituted manifest disregard for the law as to
punitive damages because it exceeded the amount of the claim submitted to
ABW first argues that the District Court failed to recognize that “[Murillo’s]
demand in the arbitration was for punitive damages of 5 times compensatory
damages which was well within constitutional limitations. The parties entered into
an agreement to arbitrate with the Plaintiff claiming and paying only for a claim not
exceeding $50,000.00.” [Dkt. 61. (Def. Mot. for Reconsideration) at 8-11]. ABW
argues that the District Court misapprehended the facts of the case because it
failed to consider whether the arbitrator ignored the submission agreement, which
ABW asserts limited jurisdiction over the claim to damages not exceeding $50,000.
Id. at 10. ABW additionally argues that it only had notice of a claim less than
$50,000 and prepared its defense accordingly. Id. at 8.
ABW already raised the argument that the award “exceeded the claim range
paid for by the parties…[and] significantly exceeded the submission documents.”
[Dkt. 44 (Def. Mot. to Vacate) at 15]. The Court previously rejected this argument.
[Dkt. 58 (Order Affirming Arb. Award) at 18] (“Defendants cite no law to support
their argument that the arbitrator’s award of punitive damages is somehow in
disregard of the law simply because it is greater than the amount requested by
Plaintiff when the parties’ submissions to the arbitrator plainly allow for a punitive
damages award.”) Still on reconsideration, ABW cites no case law to support its
position that the arbitration submission limited jurisdiction. That fact alone is
enough to foreclose relief under Fed. R. Civ. P. 59(e). Even so, the arguments fail
on the merits.
As addressed in the Court’s prior decision, the Second Circuit has laid out
the separate standards for assessing vacatur of an arbitration award under 9 §
10(a)(4) of the Federal Arbitration Act and under the judicial doctrine of vacatur for
manifest disregard of the law. [Dkt. 58 (Order Granting Mot. to Affirm) at 6-7]. ABW’s
argument merges these distinct concepts. Under 9 U.S.C. § 10(a)(4) of the Federal
Arbitration Act, vacatur of an arbitrator’s award is available “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.” Manifest
disregard for the law, by contrast, requires the court to find “something beyond
and different from a mere error in the law or failure on the part of the arbitrators to
understand or apply the law.” Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d
200, 208 (2d Cir. 2002) (citations omitted). ABW’s argument that arbitration
submission deprived the arbitrator of jurisdiction to award damages beyond the
prayer for relief falls under § 10(a)(4).
The Court’s prior order analyzed the powers conveyed by the parties to the
arbitrator pursuant to the arbitration agreements contained in the Retail Purchase
Order and the Retail Installment Contract. [Dkt. 58 (Order Granting Mot. to Affirm)
at 9-11]. The Court already determined that “the contracts do not include any
limitation on the arbitrator’s powers to impose an award of punitive damages, or
otherwise.” Id. at 9. Neither arbitration agreement contains any cap on the amount
of available damages. [Dkt. 51-2, Ex. D ¶ 9 (Def. Mot. to Exclude)(Purchase Order);
[Dkt. 49-2, Ex. 3 at 4 (Def. Mot. to Vacate)(Retail Installment Contract)]. The entire
language of the arbitration clauses is included in the appendix to this opinion.
ABW presents no controlling legal authority to establish that the Court
misconstrued whether the arbitration clauses in the respective contracts
empowered the arbitrator to award punitive damages; rather, ABW argues that
arbitration submission itself capped the claim at $50,000. [Dkt. 61 (Def. Mot. to Alter
Judgment) at 8-10]. ABW confuses pleadings in arbitration for an arbitration
submission, which is a separate contractual agreement. Black’s Law Dictionary
clarifies this distinction neatly:
arbitration agreement (18c) An agreement by which the parties consent to
resolve one or more disputes by arbitration. • An arbitration agreement can
consist of a clause in a contract or a stand-alone agreement and can be
entered into either before a dispute has arisen between the parties
(a predispute arbitration agreement) or after a dispute has arisen between
the parties (a postdispute arbitration agreement or submission agreement).
ARBITRATION AGREEMENT, Black's Law Dictionary (11th ed. 2019) (underlining
added)(italics in original).
ABW moved to compel arbitration based on enforcement of the predispute
arbitration clause contained in the Purchase Order. [Dkt. 33 (Def. Mot. to Stay and
Compel Arb.)]. Now, ABW refers to Murillo and ABW’s pleadings in arbitration as a
“submission agreement” and argues that they serve to define the arbitrator’s
authority to grant the remedies specified therein. But “[t]he FAA requires courts to
enforce arbitration agreements according to their terms.” Lamps Plus, Inc. v.
Varela, 139 S. Ct. 1407, 1415 (2019) (citing Epic Systems v. Lewis, 138 S. Ct. 1612,
1619 (2018)). That agreement is contained in the transactional documents and
broadly conveyed power to the arbitrator to resolve all claims and grant legal and
equitable relief. See Appendix (Purchase Order Arbitration Clause). ABW presents
no factual or legal basis to show that Murillo’s or ABW’s pleadings in arbitration
should be construed as a mutual agreement or facts that establish the existence
subsequent agreement to limit the scope of the prior, unrestricted pre-dispute
arbitration clause to cap damages $50,000.
ABW’s argument that it defended the case on the belief that damages were
capped at $50,000 is without legal import. This argument implicitly relies on ABW’s
Due Process Clause argument that it was deprived fair notice of the potential
severity of punitive damages. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996)
(“Elementary notions of fairness enshrined in our constitutional jurisprudence
dictate that a person receive fair notice not only of the conduct that will subject
him to punishment, but also of the severity of the penalty that a State may impose.”)
But, for reasons set forth in the Court’s July 15, 2019 Order, the arbitrator is a
private actor and affirming the award does not transform the award into state
action. [Dkt. 58 (Order Granting Mot. to Affirm) at 19-23]. Thus, the Due Process
protections that ABW cite are inapplicable in arbitration. ABW offers no controlling
case law to the contrary.
B. Due Process Arguments
Lastly, ABW reargues that the arbitrator’s award exceeds constitutional
limits on punitive damages as to deprive ABW of Due Process. [Dkt. 61 at 11-15].
Unfortunately, except for the concluding paragraph, all of this section of the brief
is taken verbatim from ABW’s Motion to Vacate and fails to cite the fact that these
arguments were previously raised, considered, and rejected by the Court.2 See [Dkt
61 (Def. Mot for reconsideration) at 11] paragraph beginning “In Cooper Industries,
Inc. v. The Leatherman Tool Group, Inc., 532 US. 424 (2001) the United States
Supreme Court issued a groundbreaking decision...”(appearing verbatim in [Dkt.
44 (Def. Mot. to vacate) at 17]). This continues over the next three paragraphs. The
fifth paragraph, beginning with “This policy of scrutinizing punitive damage awards
to ensure due process…,” is taken verbatim from [Dkt. 44 at 19]. So is the next
paragraph [Id. at 20], the paragraph after that [Id. at 21], and the remaining three
paragraphs (explaining the holding in BMW v. Gore) through the conclusion of the
argument [Id. at 22-23].
The only new information is the concluding paragraph arguing that District
Court failed to consider that the Defendant was on “notice” only of a claim of five
times compensatory damages. [Dkt. 64 at 14-15]. This conclusory argument fails to
address the Court’s prior ruling holding that affirming the arbitration award does
In some instances, this is third time that the argument has been raised verbatim
in this Court. For example, the fourth paragraph appears in the ABW’s Motion to
Amend the Judgment [Dkt. 61 at 12], ABW’s Motion to Vacate [Dkt. 44 at 19], and
in ABW’s Reply Memorandum to the Motion to Vacate [Dkt. 50 at 7].
not constitute state action necessary to trigger the Due Process Clause’s
protection and is without citation.
Fed. R. Civ. P. 12(f)(1) provides that the Court may sua sponte strike from a
pleading any redundant material. The Court therefore strikes pages 11 through 15
of ABW’s Memorandum in Support of its Rule 59(e) motion in light of the obvious
redundancy of re-filing the same arguments verbatim on reconsideration. No
further consideration of this material is warranted. It is a waste of judicial resources
to do so.
By signing and filing the Motion to Amend Judgment, Attorney Votre
certified that to the best of his knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances, (1) that the motion was not being
pursued for any improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation; and (2) the claims, defenses, and other
legal contentions are warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law. Fed. R.
Civ. P. 11(b)(1)-(2).
“In order for a claim to violate Rule 11(b)(2), a pleading “must be or border
on the frivolous.” Healey v. Chelsea Resources Ltd., 947 F.2d 611, 626 (2d
Cir.1991); see also id. (“Rule 11 targets situations where it is patently clear that a
claim has absolutely no chance of success.”); Gurary v. Nu–Tech Bio–Med,
Inc., 303 F.3d 212, 224 (2d Cir.2002) (using frivolousness as relevant standard
under Rule 11(b)(2)). Chien v. Skystar Bio Pharm. Co., 256 F.R.D. 67, 72 (D. Conn.
2009) (awarding sanctions against Attorney Votre under Fed. R. Civ. P.
11(b)(2)), aff'd on other grounds, 378 F. App'x 109 (2d Cir. 2010).
The problem is not in Mr. Votre’s argument to expand existing law to apply
Due Process proportionality standards for punitive damages to arbitration; rather
the issue lies with refiling this argument verbatim on reconsideration without
alerting the Court that it has already been ruled on. This frustrates the purpose of
Fed. R. Civ. P. 59(e) in granting extraordinary relief for data and case law previously
overlooked by the Court. The motion also results in unnecessary delay. Moreover,
it appears to lack any chance of success, given the applicable standard for relief
under Fed. R. Civ. P. 59(e).
Sanctions, if awarded for violation of Fed. R. Civ. P. 11(b)(2), would run
against Mr. Votre alone. The Court sua sponte orders Attorney Votre to show
cause within seven days as to why sanctions should not be imposed against him
pursuant to Fed. R. Civ. P. 11(b)(2).3
Murillo’s Motion for Attorneys Fees
Murillo moves for an award of attorneys’ fees in the amount of $14,000 for
work performed in confirming the arbitration award opposing the motion to vacate.
[Dkt. 59, (Mot. for Attny. Fees)]. ABW opposed the motion. [Dkt. 65 (Obj. to Mot. for
The Court future decision as to whether or not to grant attorney fees against
Attorney Votre pursuant to 11(b) does not foreclose Murillo’s statutory claim for
attorney fees against the Defendants for having to oppose the motion for
reconsideration and motion for a stay, subject to any set off fees awarded
pursuant to Fed. R. Civ. P. 11(b)(2), if any.
Attny. Fees)]. Murillo replied to the motion and sought an additional $600 for
preparing the reply. [Dkt. 66 (Reply to Obj. to Mot. for Attny. Fees)].
A successful plaintiff may be awarded reasonable attorneys' fees and costs
under the federal Truth in Lending Act (TILA) and the Connecticut Unfair Trade
Practices Act (CUTPA). 15 U.S.C. § 1640(a)(3) (TILA); Conn. Gen.Stat. § 42–110g(d)
(CUTPA). The award of attorney’s fees under CUTPA is considered substantive and
controlled by state law when the Court is hearing state law claims. Bristol Tech.,
Inc. v. Microsoft Corp., 127 F. Supp. 2d 64, 66 (D. Conn. 2000). In determining the
reasonableness of the fees a CUTPA Plaintiff is seeking, the Connecticut courts
consider the twelve factors set forth in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 715 (5th Cir.1974). Id. at 67.
ABW objects to proposed hourly rates of $400.00 for Attorney Blinn and
$275.00 for Attorney Mahoney. [Dkt. 65 (Def. Obj. to Mot. for Attny Fees)]. ABW
argues that that plaintiff’s counsel is already substantially rewarded by the
arbitrator’s award because he took the case on a contingency fee agreement and
that the Johnson factor considering whether the case is undesirable militates
against the proposed rate. ABW also challenges the amount of time spent on
briefing the Plaintiff’s Objection to the Defendant’s Motion to Vacate, totaling 21
First, whether or not an attorney is compensated by a contingency fee
agreement is immaterial for determining an attorney fee award for Ms. Murillo’s
CUTPA claim.4 The statute expressly provides that an award of attorney fees is not
to be based on “the amount of recovery,” but rather “on the work reasonably
performed by an attorney.” Fabri v. United Techs. Int'l., Inc., 193 F. Supp. 2d 480,
484 (D. Conn. 2002) (citing to Conn. Gen. Stat. § 42-110g(d))(holding on attorney
fees affirmed, 387 F.3d 109 (2d. Cir 2004). “A fee award is an obligation of a
defendant to a plaintiff. A contingent fee agreement is an agreement between a
plaintiff and his or her counsel, an agreement to which a defendant is not a party,
and which should not be permitted to alter the purpose of the statutory award.” Id.
Second, ABW’s arguments that the Johnson factor considering the
undesirability of the case at issue is logically flawed. ABW argues that 20 to 25%
of the Consumer Law Group’s 37 active files in Connecticut Superior Court are
against ABW, and therefore similar cases are not undesirable. [Dkt. 65 (Def. Opp.
to Mot. for Attny. Fees) at 6]. But this argument addresses the wrong reference
class. The relevant inquiry is determining what a paying client would be willing to
pay, considering the Johnson factors. Arbor Hill Concerned Citizens Neighborhood
Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir.
Johnson makes clear that undesirability is an economic analysis
considering the class of case and the bar in general. Johnson, 488 F.2d at 719 (5th
Cir. 1974) (“Oftentimes his decision to help eradicate discrimination is not
The source for ABW’s factual claim about Attorney Blinn’s contingency fee
agreement with Ms. Murillo is not presented.
pleasantly received by the community or his contemporaries. This can have an
economic impact on his practice which can be considered by the Court.”); see also
Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 751
n. 15 (1987). ABW cannot logically infer whether a class of cases is desirable or not
to the bar generally based solely on the proportion of one law firm’s current
pending cases against one commercial party. ABW’s argument relies on a
reference class of one; Attorney Blinn’s firm.
Ms. Murillo’s requested rate of $400 per hour for Attorney Blinn and $275 for
Attorney Mahoney are in line with prevailing rates, commensurate with the level of
skill required to perform properly, and customary hourly rates. See Negron v.
Patriot Auto Sales, LLC, No. 3:17-CV-583 (JCH), 2019 WL 4463440, at *4 (D. Conn.
Sept. 17, 2019) (“other courts in this district have already found Mr. Mahoney’s
hourly rate reasonable”). Similarly, “this Court has already determined that a rate
of $400 per hour for work performed by experienced counsel in relation to similar
federal statutes is reasonable” Franco v. Better Way Wholesale Autos, Inc., No.
3:14-CV-00422 (VLB), 2016 WL 3064051, at *2 (D. Conn. May 31, 2016), aff'd sub
nom. Franco v. A Better Way Wholesale Autos, Inc., 690 F. App'x 741 (2d Cir. 2017);
see also Dixon v. A Better Way Wholesale Auto, Inc., No. 3:15-CV-691(AWT), 2017
WL 4876216, at *1 (D. Conn. Oct. 27, 2017) (approving rate of $400 for Attorney
The Court finds the amount of time allocated to drafting Ms. Murillo’s
opposition brief to Plaintiff’s Motion to Vacate to be reasonable under the
circumstances. [Dkt. 54 (Plt. Opp. to Def. Mot. to Vacate)]. Ms. Murillo’s attorneys
spent 21 hours on a brief, which is 44 pages in length, excluding exhibits, and
addresses judicial review of arbitration, the applicability of Connecticut law to the
arbitrator’s decision, and ABW’s constitutional arguments. [Dkt. 59 (Plt. Mot for
Attny) Ex. A “Pre-bill worksheet”]. The pre-bill work sheet shows minimal duplicity
and a reasonable allocation of work between the partner and the associate. Id.
Accordingly, the Court grants Ms. Murillo $14,600 in attorneys’ fees; $14,000
on Murillo’s July 29, 2019 Motion for Attorney’s Fees [Dkt. 59] and an additional
$600 for 1.5 hours to respond to ABW’s Objection to Plaintiff’s Motion for Attorney
Fees [Dkt. 66].
Murillo’s Motion for Entry of Judgment and ABW’s Motion for a Stay
In accordance with the Court’s July 15, 2019 Order affirming the arbitration award
and Fed. R. Civ. P. 58(b), the Clerk is directed to enter judgment for Plaintiff in
the amount of:
1. $1,000 in statutory damages from Westlaw Services, LLC per the arbitration
2. $300 in attorney fees from Westlake per the arbitration award
3. $261,596.84 from A Better Way Wholesale Autos, Inc. per the arbitration
4. $14,600.00 awarded in attorney fees from A Better Way Wholesale Autos,
Inc. per my Order herein;
5. $200.00 joint and severally from the Defendants for that portion previously
advanced to the ADR Centers by Ms. Murillo per the arbitration award; and
6. Statutory interest at a rate of 8% per year per the arbitration award.
The Court will toll the 14 day period after entry of judgment for Plaintiff to move
for attorney fees pursuant to Fed. R. Civ. P. 54(d)(2)(B). Any motion for a
supplemental award of attorney fees shall be made within 14 days of the Court’s
ruling on its Order to Show Cause as to why Fed. R. Civ. P. 11(b) sanctions
should not be imposed on Attorney Votre. ABW’s motion for a stay of judgment
pending its motion for reconsideration [Dkt. 60] is denied as moot.
IT IS SO ORDERED.
2019.10.10 18:46:08 -04'00'
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut:
a. Purchase Order Arbitration Clause (see Exhibit L to ABW’s Mot. to Vacate
Arbitration Award)(Dkt. 44-2)
Any claim or dispute, whether in contract, tort, statute, or otherwise
including the interpretation and scope of this clause, and the
arbitrability of the claim or dispute, between you and us or our
employees, agents, successors or assigns, which arise out of or relate
to your credit application, purchase or condition of this vehicle, this
contract or any resulting transaction or relationship (including any
such relationship with third parties who do not sign this contract)
shall, at your or our election, be resolved by neutral, binding
arbitration and not by a court action. Any claim or dispute is to be
arbitrated by a single arbitrator on an individual basis and not as a
class action. You expressly waive any right you may have to arbitrate
a class action . Binding arbitration shall be provided by American
Dispute Resolution Center, Inc. under its rules of Expedited
Commercial Arbitration to be applied provided there is less than
$75,000 in dispute. Expedited Rules shall apply regardless of the
number of parties to the arbitration. In the event of the American
Resolution Center, Inc. shall be unwilling or unable to hear the matter,
the matter may be arbitrated by any other arbitration organization or
individual arbitrator that we have mutually agreed upon. If we cannot
mutually agree to a particular arbitration forum or arbitrator, the forum
will be selected by a court of competent jurisdiction thereof. Said
arbitration shall be conducted as documents only arbitration to the
extent permissible under the Expedited Rules of the American Dispute
Resolution Center, Inc. The arbitrator shall be empowered to enter
equitable as well as legal relief, to provide all temporary and/or
provisional remedies and to enter equitable orders that will be binding
upon the parties.
b. Retail Installment Sales Contract With Arbitration Provision (“RISC”) (see
Exhibit A to Westlake Services, LLC’s Motion to Stay and Compel Arbitration
Any claim or dispute, whether in contract, tort, statute or otherwise
(including the interpretation and scope of this Arbitration Provision,
and the arbitrability of the claim or dispute), between you and us or
our employees, agents, successors or assigns, which arises out of or
relates to your credit application, purchase or condition of this
vehicle, this contract or any resulting transaction or relationship
(including any such relationship with third parties who do not sign this
contract) shall, at your or our election, be resolved by neutral, binding
arbitration and not by a court action. If federal law provides that a
claim or dispute is not subject to binding arbitration, this Arbitration
Provision shall not apply to such claim or dispute. Any claim or
dispute is to be arbitrated by a single arbitrator on an individual basis,
and not as a class action. You expressly waive any right you may have
to arbitrate a class action. You may choose the American Arbitration
Association, 1633 Broadway, 10th Floor, New York, New York 100019
(www.adr.org), or any other organization by contacting the
organization or visiting its website. Arbitrators shall be attorneys or
retired judges and shall be selected pursuant to the applicable rules.
The arbitrator shall apply governing substantive law and the
applicable statute of limitations. The arbitration hearing shall be
conducted in the federal district in which you reside unless the SellerCreditor is a party to the claim or dispute, in which case the hearing
will be held in the federal district where this contract was executed.
We will pay your filing, administration, service or case management
fee and your arbitrator or hearing fee all up to a maximum of $5000,
unless the law or the rules of the chosen arbitration organization
require us to pay more. The amount we pay may be reimbursed in
whole or in part by decision of the arbitrator if the arbitrator finds that
nay of your claims is frivolous under applicable law. Each party shall
be responsible for its own attorney, expert and other fees, unless
awarded by the arbitrator under applicable law. If the chosen
arbitration organizations rules conflict with this Arbitration Provision,
then the provisions of this Arbitration Provision shall control. Any
arbitration under this Arbitration Provision shall be governed by the
Federal Arbitration Act (9 U.S.C. §1 et. Seq.) and not by any state law
concerning arbitration. Any award by the arbitrator shall be in writing
and will be final and binding on all parties, subject to any limited right
to appeal under the Federal Arbitration Act.
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