SunLink Corporation v. American Capital Energy Inc.

Filing 32

Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER. "...For the reasons stated in the Memorandum and Order, ACEs Motion for Finding that Application to Vacate Filed and Served is Responsive to Petition to Confirm Arbitration Award as Defined in 9 U.S.C. § 12 [ECF No. 21] is DENIED. Sunlinks Verified Petition to Confirm the Arbitration Award [ECF No. 1] is GRANTED. Sunlinks motions for a case management conference [ECF Nos. 25, 26] are DENIED as moot. Sunlinks Motion to St rike [ECF No. 28] is GRANTED. Sunlink shall submit a proposed draft order, showing the outstanding balance on the Arbitration Award, including interest, and a judgment confirming the Award will follow. Further, Sunlink shall file an application on its post-arbitration attorneys fees and costs within seven days of this Order."(Folan, Karen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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SUNLINK CORPORATION,
Plaintiff,
v.
AMERICAN CAPITAL ENERGY, INC.,
Defendant.

Civil Action No. 15-13606-ADB

MEMORANDUM AND ORDER
December 8, 2016
BURROUGHS, D.J.
On October 20, 2015, Sunlink Corporation (“Sunlink) petitioned the Court to confirm an
arbitration award against American Capital Energy, Inc. (“ACE”). [ECF No. 1]. Presently
pending before the Court are ACE’s Motion for “Finding that Application to Vacate Filed and
Served is Responsive to Petition to Confirm Arbitration Award as Defined in 9 U.S.C. § 12”
[ECF No. 21], Sunlink’s Petition [ECF No. 1], two motions by Sunlink for a case management
conference [ECF Nos. 25, 26], and Sunlink’s Motion to Strike [ECF No. 28] ACE’s
Supplemental Answer and Counterclaim [ECF No. 27]. For the reasons stated below, ACE’s
Motion [ECF No. 21] is DENIED, and Sunlink’s Petition [ECF No. 1] is GRANTED. Sunlink’s
motions for a case management conference [ECF Nos. 25, 26] are DENIED as moot. Sunlink’s
Motion to Strike [ECF No. 28] is GRANTED.
I.

BACKGROUND
In 2013 and 2014, Sunlink provided ACE with materials in connection with ACE’s

construction of nine solar projects in Massachusetts. See Verified Petition to Confirm Arbitration
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Award (“Petition”) [ECF No. 1 at ¶ 4]. Sunlink and ACE entered into a sales contract (“Sales
Contract”) for each project that had identical terms and conditions of performance. See id. at ¶ 5;
see also Sales Contract [ECF No. 24, Ex. 1].
The Sales Contract included an arbitration provision where the parties agreed that “[a]ll
disputes, disagreements, controversies, questions or claims arising out of or relating to this Sales
Contract or in respect to any legal relationship associated with or arising from this Sales Contract
. . . shall be determined by arbitration.” Sales Contract ¶ 20. Furthermore, the Sales Contract
provided that “any award or determination of the arbitral award shall be final and binding on the
parties.” Sales Contract ¶ 20d. The Sales Contract also included a choice-of-law provision:
“[t]his Sales Contract . . . shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, without regard to its conflict of laws provisions.” Sales
Contract ¶ 23.
On October 20, 2014, Sunlink filed a Demand for Arbitration against ACE with the
American Arbitration Association, asserting various counts arising out of ACE’s alleged failure
to pay for solar panel mounting systems that Sunlink supplied and that ACE installed in each of
the nine projects. Petition ¶ 6. Between May 13, 2015 and May 20, 2015, the parties engaged in
arbitration in Boston, Massachusetts before Arbitrator David L. Evans (the “Arbitrator”), who
was appointed by the American Arbitration Association. Id. ¶ 7. On August 18, 2015, the
Arbitrator issued a “Partial Final Award,” finding in favor of Sunlink and awarding it
$7,856,649.60, Id. ¶ 8, and an additional $1,041,407.94 for the chapter 93A violation, Petition
¶ 9. On October 6, 2015, the Arbitrator issued a “Final Award,” 1 which added $1,287,629.60 in

1

This Memorandum and Order refers to the “Partial Final Award” and the “Final Award”
collectively as the “Arbitration Award.”
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attorneys’ fees and costs and $7,850.00 in administrative fees. Id. ¶ 10. Thus, the total amount of
the Arbitration Award was $10,193,537.10.
On October 20, 2015, Sunlink filed the instant petition to confirm the arbitration award in
this Court. 2 [ECF No. 1]. In its Petition, Sunlink requested a judgment “in the amount of the
Award, less appropriate credits for post-award settlements.” Petition at 5. On November 13,
2015, ACE filed a Motion to Dismiss Sunlink’s Petition in this Court, arguing that the same
action was pending in state court. [ECF Nos. 7, 8, 10 (hereinafter, the “November 13, 2015
Motion to Dismiss”)]. In its motion, ACE explained that it had filed an application to vacate the
arbitration award in state court, a copy of which was attached as Exhibit 1. [ECF No. 8 & Ex. 1].
ACE argued that this Court should abstain from confirming the arbitration award because the
case belonged in state court where, among other things, “that Court has accepted ACE’s
Application to Vacate the Award.” [ECF No. 8 at 5]. Sunlink opposed the motion. [ECF Nos. 11,
12].
In fact, ACE’s Application to Vacate the Arbitration Award had been filed in state court
on November 5, 2015, after Sunlink had filed its petition in federal court. [ECF No. 8, Ex. 1].
Sunlink moved to strike it on November 12, 2015. [ECF No. 24, Ex. 8]. On February 18, 2016,
clarified on March 3, 2016, the state court granted Sunlink’s motion to strike ACE’s Application
to Vacate the Arbitration Award, holding that “ACE’s efforts to Vacate the Arbitration Award
belong in [Federal] Court where Sunlink has already sought to confirm the award.” [ECF No. 24,
Exs. 12, 15]. On March 3, 2016, this Court held a hearing on ACE’s motion to dismiss [ECF No.

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Prior to the issuance of the Final Award, Sunlink brought actions in state court, in Barnstable
Superior Court and Dukes Superior Court, against Berkley Insurance Company and Arch
Insurance Company, related to construction surety bonds on the projects. Petition ¶ 11; [ECF No.
24, Ex. 5]. Although these concurrent actions might impact the outstanding balance on the
Arbitration Award, they do not divest this Court of jurisdiction over Sunlink’s instant petition.
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7] and denied it as moot, but granted ACE leave to file a motion to request leave to file a motion
to vacate or modify the arbitration award by March 18, 2016. [ECF Nos. 19, 20].
On March 18, 2016, ACE filed a “motion for finding that application to vacate filed and
served is responsive to petition to confirm arbitration award as defined in 9 U.S.C. § 12,” [ECF
No. 21 (hereinafter, the “March 18, 2016 Motion”)], and a supporting memorandum of law,
[ECF No. 22]. Sunlink opposed the motion, [ECF No. 23], and filed a declaration attaching
numerous exhibits in support, including some of the parties’ state court filings, [ECF No. 24].
ACE argued that the Court should recognize that it timely filed the Application to Vacate on
November 13, 2015 pursuant to the Federal Arbitration Act, 9 U.S.C. § 12, when it filed the
Application as Exhibit 1 to its motion to dismiss. See [ECF No. 21, 22]. ACE asserted that
“[p]leadings are determined not by their headings but by their substance and content and the
notice of claims they provide.” [ECF No. 21]. Notably, ACE’s March 18, 2016 Motion did not
argue that the deadline to file a motion to vacate should be tolled or that its filing in state court
on November 5, 2015 operated as placeholder for timing purposes. Moreover, ACE did not
request leave to file the motion to vacate, despite the Court’s earlier order. In its opposition,
Sunlink argued that an exhibit to ACE’s motion to dismiss cannot be construed as a motion to
vacate, and that, even if it was considered a properly filed motion to vacate, it would be timebarred under the Massachusetts Arbitration Act. [ECF No. 23].
On November 21, 2016, ACE filed a Supplemental Answer and Counterclaim, arguing
that the Arbitration Award should be subject to equitable adjustments based, in part, on events
that took place prior to the issuance of the Final Arbitration Award on October 6, 2015. [ECF
No. 27]. Sunlink moved to strike the Supplemental Answer and Counterclaim, arguing that it

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was a belated attempt to modify the Arbitration Award. [ECF Nos. 27, 28]. ACE opposed the
motion. [ECF No. 30].
Thus, the issues presently before this Court are (1) whether ACE timely moved to
challenge the Arbitration Award, and (2) whether judgment should be entered confirming the
Arbitration Award.
II.

DISCUSSION
a. Application of the Massachusetts Arbitration Act and the Federal
Arbitration Act
Both Massachusetts and Federal law provide for the enforcement of arbitration

agreements. Under the Federal Arbitration Act (“FAA”), “a written provision in a contract ‘to
settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.’” Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino, 640
F.3d 471, 474 (1st Cir. 2011) (quoting 9 U.S.C. § 2) (omission in original). The FAA was
enacted primarily to “overcome judicial hostility to arbitration agreements.” See Allied-Bruce
Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 272 (1995). The provisions of the Act “embod[y]
the national policy favoring arbitration and place[] arbitration agreements on equal footing with
all other contracts.’” Soto-Fonalledas, 640 F.3d at 474 (quoting Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 443 (2006)).
Similarly, under the Massachusetts Arbitration Act (“MAA”), “[a] written agreement to
submit any existing controversy to arbitration or a provision in a written contract to submit to
arbitration any controversy thereafter arising between the parties shall be valid, enforceable and
irrevocable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” Mass. Gen. Laws ch. 251 § 1. Further, “[t]he provisions of the MAA governing
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judicial review of an arbitration award are substantively (and often linguistically) identical to the
analogous provisions in the FAA.” Katz, Nannis & Solomon, P.C. v. Levine, 46 N.E.3d 541, 547
(Mass. 2016). Both the FAA, see 9 U.S.C. §§ 9, 10, 11, and MAA, see Mass. Gen. Laws ch. 251
§§ 11, 12, 13, include provisions defining the Court’s role in confirming arbitration awards.
There is some dispute as to whether the FAA or MAA governs this proceeding. Sunlink’s
petition to confirm the arbitration award is brought pursuant to the FAA “and/or” the MAA.
[ECF No. 1 at 1]. The parties specifically disagree over whether the FAA or MAA provides the
limitation period for filing a motion to vacate the arbitration award. The FAA applies to contracts
affecting interstate commerce. 9 U.S.C. § 2 (“a contract evidencing a transaction involving
commerce”); see also Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford
Junior Univ., 489 U.S. 468, 476 (1989). The contract in this case clearly affects interstate
commerce as Sunlink was a California corporation, [ECF No. 1 ¶ 1], the projects took place in
Massachusetts, and the contract included terms that directly implicated interstate commerce,
such as “[a]ll Seller products are furnished F.O.B. San Leandro, California, Allen, Texas or
Carrolton, Texas,” [ECF No. 24, Ex. 1 at 6, ¶ 10]. See Allied-Bruce, 513 U.S. at 268 (holding
that 9 U.S.C. § 2 should be interpreted broadly).
Provided that there are no preemption issues, however, parties may contract out of FAA
rules and into state arbitration rules. “The FAA contains no express pre-emptive provision, nor
does it reflect a congressional intent to occupy the entire field of arbitration.” Volt, 489 U.S. at
477. The Supreme Court has held that the FAA does not preempt state arbitration law “in a case
where the parties have agreed that their arbitration agreement will be governed by” state law. Id.
at 470. Thus, “the FAA preempts state laws that prevent parties from arbitrating disputes to the
full scope of their agreements.” New England Utilities v. Hydro-Quebec, 10 F. Supp. 2d 53, 59

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(D. Mass. 1998); see also Nationwide Mut. Ins. Co. v. Liberty Mut. Ins. Co., 57 F. Supp. 3d 112,
117 (D. Mass. 2014); Weston Sec. Corp. v. Aykanian, 703 N.E.2d 1185, 1188–89 (Mass. App.
Ct. 1998) (state arbitration rules “are preempted by the FAA if the effect of the State rule ‘would
undermine the goals and policies of the FAA’” (quoting Volt, 489 U.S. at 477–78)).
The FAA “simply requires courts to enforce privately negotiated agreements to arbitrate,
like other contracts, in accordance with their terms.” 3 Volt, 489 U.S. at 478. Here, the parties
clearly intended, as evidenced by the choice-of-law provision, that the Sales Contract be
“governed by and construed in accordance with” the laws of Massachusetts “without regard to its
conflict of law provisions.” [ECF No. 24, Ex. 1 ¶ 23]. Indeed, ACE admits that Massachusetts
law applies to the Sales Contract. [ECF No. 22 at 6] (“The parties’ agreement dictated that
Massachusetts substantive law would govern.”). “In Massachusetts, a contract’s choice of law
provision is generally honored, provided that it does not conflict with public policy.” NPS, LLC
v. Ambac Assur. Corp., 706 F. Supp. 2d 162, 168 (D. Mass. 2010). The Sales Contract in this
case, however, is wholly silent as to which arbitration rules would apply. 4 Following the
Supreme Court’s decisions in Volt, Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52
(1995), and Preston v. Ferrer, 552 U.S. 346 (2008), there is some confusion about how to

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Similar to the Sales Contract at issue here, the parties in Volt agreed to a contract that (1)
included an arbitration requirement for all disputes between the parties “arising out of or relating
to this contract or breach thereof,” and (2) included “a choice-of-law clause providing that ‘[t]he
Contract shall be governed by the law of the place where the Project was located.’” Volt, 489
U.S. at 470 (quoting the record). The project in Volt was located in California, and the California
Court of Appeal “held that by specifying that their contract would be governed by ‘the law of the
place where the project is located,’ the parties had incorporated the California rules of
arbitration.” Id. at 473. The Volt Court refused to review the state court’s interpretation of the
contract because “the interpretation of private contracts is ordinarily a question of state law,
which this Court does not sit to review.” Volt, 489 U.S. at 474.
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The Sales Contract did provide for the application of the American Arbitration Association’s
rules and procedures for appointing a sole arbitrator in the event the parties could not agree on
one. See Sales Contract ¶ 20.
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determine which arbitration rules apply in a given case and the issue can be complex. . See, e.g.,
Protostorm, LLC v. Antonelli, No. 08-931, 2010 WL 2195679, at *4 (E.D.N.Y. May 28, 2010).
In this case, however, as discussed below, regardless of whether the FAA or the MAA
applies, any attempt by ACE to vacate the Arbitration Award would is too late. Given that the
result is the same under the FAA and the MAA, the Court need not resolve the choice of law
issue regarding which arbitration rules to apply.
b. ACE’s Failure to Properly Move to Vacate or Modify the Arbitration Award
Under the Massachusetts Arbitration Act and the Federal Arbitration Act
The FAA, 9 U.S.C. § 9, and the MAA, Mass. Gen. Laws ch. 251 § 1, provide for the
enforcement of arbitration agreements. Furthermore, “[u]pon application of a party, the court
shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for
vacating or modifying or correcting the award, in which case the court shall proceed as provided
in sections twelve and thirteen.” Mass. Gen. Laws ch. 251 § 11 (emphasis added). Thus, absent
motions under § 12 or § 13 “within the time limits,” the Court is required to confirm an
arbitration award applied for by a party under the MAA. 5 See Katz, 46 N.E.3d at 546–47 (“the
directive of G.L. c. 251, § 11, is that a court ‘shall confirm’ an award unless grounds for vacating
it pursuant to §§ 12 and 13 are shown; this statutory language ‘carries no hint of flexibility’”
(quoting Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 587 (2008)). Similarly, under the
FAA, the Court “must grant such an order [to confirm the award] unless the award is vacated,
modified, or corrected as prescribed in sections 10 and 11 of this title.” 9 U.S.C. § 9 (emphasis
added).

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Because “applications” under the MAA, Mass. Gen. laws ch. 251 § 15, and the FAA, 9 U.S.C.
§ 6, are generally brought as “motions,” this Memorandum and Order uses “application” to
vacate or modify an arbitration award interchangeably with “motion” to vacate or modify an
arbitration award.
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Sections 12 and 13 of the MAA require parties to move to vacate or modify an arbitration
award within 30 days of its issuance. See Mass. Gen. Laws ch. 251 §§ 12(b) (motion to vacate),
13(a) (motion to modify). 6 The FAA provides a three month limitations period. 9 U.S.C.A. § 12.
In this case, the Final Award was issued on October 6, 2015; thus, an application to
vacate the Arbitration Award was due by November 5, 2015 under the MAA. Instead of filing a
motion to vacate in this Court by that date, ACE filed the November 13, 2015 Motion to Dismiss
to which it attached a copy of its state court motion to vacate as an exhibit, and ACE now seeks
to have the Court treat this exhibit as a motion to vacate. Even if the Court construed ACE’s
exhibit to its motion to dismiss as a motion to vacate, which it will not, it was still too late under
the MAA. See Kimball Associates, P.A. v. Bosse, No. 03-10239-RWZ, 2004 WL 213208, at *1
(D. Mass. Jan. 30, 2004) (confirming arbitration award under MAA where party failed to seek
“to vacate the award in a timely fashion”); see also Bernstein v. Gramercy Mills, Inc., 452
N.E.2d 231 (Mass. App. Ct. 1983) (“[t]he arbitration statute aims to flush out objections to
awards with dispatch”); Local 589, Amalgamated Transit Union v. MBTA., 491 N.E.2d 1053,
1056 (Mass. 1986) (noting that, while discussing provision nearly identical to chapter 251 § 12,
“[p]arties are allowed only a short period of time to move courts to vacate an award in order to
accord the arbitration award finality with reasonable promptness.”)
Similarly, if the FAA’s longer limitations period (three months) applied, see 9 U.S.C. §
12, ACE’s efforts to vacate would also still be time-barred because, given that ACE’s November
13, 2015 Motion to Dismiss was not a motion to vacate, ACE has still not properly moved to
vacate the Arbitration Award in this Court. If the FAA applied, a motion to vacate would have

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Because the motion to vacate or modify was not timely filed, the Court does not reach whether
any of the grounds to vacate or modify an arbitration award under the MAA or the FAA exist in
this case.
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been due three months after October 6, 2015, or January 6, 2016. Following the state court’s
allowance of Sunlink’s motion to strike ACE’s application, this Court denied ACE’s November
13, 2015 Motion to Dismiss as moot, but granted ACE leave to file a motion for leave to file a
proper motion to vacate. [ECF No. 20 (“Defendant, however, may file a Motion for Leave to File
a motion to vacate or modify the arbitration award, no later than 3/18/2016.”)]. Rather than
requesting leave to file a motion to vacate, ACE asked the Court to treat its November 13, 2015
exhibit as a motion to vacate.
Under these circumstances, the Court will not treat an exhibit to a motion to dismiss as a
motion to vacate. For all the reasons Sunlink enumerated in its brief, see [ECF No. 23], it is clear
that ACE did not intend for the November 13, 2015 Motion to Dismiss to operate as an
application to vacate the Arbitration Award. In its motion to dismiss, ACE asked this Court to
dismiss the federal case in favor of the state case so that the state court could rule on the
application to vacate. It now argues that this very same filing was in fact a motion to vacate upon
which this Court should now rule. An exhibit to a motion to dismiss—requesting that the Court
decline jurisdiction—cannot be reformulated as a request for relief from the same Court as a way
around the MAA’s or FAA’s limitations periods. In short, ACE did not file a motion to vacate on
November 13, 2015. Even if the Court were to construe ACE’s March 18, 2016 Motion itself as
a motion to vacate—although it does not purport to be one—ACE would have nevertheless
missed the filing deadline, under either the FAA (three months) or MAA (30 days). 7 Because the
only relief ACE requests in its March 18, 2016 Motion is to treat the November 13, 2015 exhibit
as a timely filed motion to vacate, ACE’s motion [ECF No. 21] is denied.

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Even assuming that a court could theoretically toll the statute of limitations period under certain
circumstances, ACE has failed to make this argument.
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Therefore, ACE has failed to contest the Arbitration Award within the requisite time
periods provided by the MAA or the FAA. Accordingly, the Court must confirm the award. See
Katz, 46 N.E.3d at 546–47 (Mass. 2016) (“the directive of G.L. c. 251, § 11, is that a court ‘shall
confirm’ an award unless grounds for vacating it pursuant to §§ 12 and 13 are shown; this
statutory language ‘carries no hint of flexibility.’” (quoting Hall St. Assocs., L.L.C. v. Mattel,
Inc., 552 U.S. 576, 587 (2008) (noting that Section 9 of the FAA “carries no hint of flexibility”)).
c. ACE’s Supplemental Answer and Counterclaim
ACE’s recently filed Supplemental Answer and Counterclaim [ECF No. 27] challenges
the Arbitration Award based largely on events that preceded the issuance of the Final Arbitration
Award, but it provides no explanation as to why the issues are being raised at such a belated
stage. As discussed above, both the Massachusetts Arbitration Act, see Mass. Gen. Laws ch. 251
§§ 11, 12, 13, and the Federal Arbitration Act, see 9 U.S.C. §§ 9, 10, 11, establish procedures for
challenging arbitration awards. If a party fails to challenge an award properly under the
established procedures within the permitted time period, then, under both the MAA and the
FAA, a Court is required to confirm the award. As ACE has failed to properly challenge the
Arbitration Award in this case under either the MAA or the FAA, the Court will not now
consider ACE’s belated challenges. Accordingly, Sunlink’s motion is granted, and ACE’s
Supplemental Answer and Counterclaim are stricken.
d. Attorneys’ Fees for Post-Arbitration Litigation.
Sunlink also argues that it is entitled to attorneys’ fees for post-arbitration litigation
pursuant to Mass. Gen. Laws ch. 93A. Chapter 93A, § 11 provides, in relevant part: “[i]f there
has been a violation of section two, the petitioner shall, in addition to other relief provided for by
this section and irrespective of the amount in controversy, be awarded reasonable attorneys’ fees

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and costs incurred in said action.” The Arbitration Award includes a 93A violation. [ECF No. 24,
Ex. 6]. The Massachusetts Supreme Judicial Court has held that “[w]here a statute provides for
the payment of reasonable attorney’s fees, an award of attorney’s fees on appeal is within the
discretion of an appellate court.” Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co.,
837 N.E.2d 1121, 1140 (Mass. 2005) (discussing case involving chapter 93A, § 11). The First
Circuit “believe[s] that an award of fees to a party that successfully fends off a petition to vacate
a chapter 93A arbitration award would be the usual practice, absent some affirmative reason not
to make such an award.” Janney Montgomery Scott LLC v. Tobin, 571 F.3d 162, 166 (1st Cir.
2009). ACE has failed to address the issue of why attorneys’ fees and costs for post-arbitration
litigation should not be awarded in this case. Accordingly, Sunlink is entitled to attorneys’ fees
under chapter 93A with respect to that portion of the petition related to the 93A claim. See Fed.
Ins. Co. v. HPSC, Inc., 480 F.3d 26, 37 (1st Cir. 2007) (“With regard to the calculation on
appeal, however, we award only those attorneys’ fees incurred in defending the chapter 93A
claim.”).
III.

CONCLUSION
For the foregoing reasons, ACE’s Motion [ECF No. 21] is DENIED. Sunlink’s Verified

Petition to Confirm the Arbitration Award [ECF No. 1] is GRANTED. Sunlink’s motions for a
case management conference [ECF Nos. 25, 26] are DENIED as moot. Sunlink’s Motion to
Strike [ECF No. 28] is GRANTED. Sunlink shall submit a proposed draft order, showing the
outstanding balance on the Arbitration Award, including interest, and a judgment confirming the
Award will follow. Further, Sunlink shall file an application on its post-arbitration attorneys’
fees and costs within seven days of this Order.

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SO ORDERED.
Dated: December 8, 2016
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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