Plocher Construction Company, Inc. v. Overseas Lease Group, Inc.

Filing 8

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Movants' Motion to Confirm Arbitral Award 1 is GRANTED. A separate Judgment will accompany this Memorandum and Order.. Signed by District Judge John A. Ross on 5/19/17. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PLOCHER CONSTRUCTION COMPANY,
INC.,
Movant,
v.
OVERSEAS LEASE GROUP, INC.,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. 4:17-MC-156 JAR

MEMORANDUM AND ORDER
This matter comes before the Court on Movant Plocher Construction Company, Inc.
(“Plocher”)’s Motion to Confirm Arbitral Award Dated February 13, 2017 (Doc. No. 1).
Background
On or about October 27, 2014, Plocher and Highland TH, LLC, an Indiana limited
liability company (“Highland”), entered into a construction contract (the “Contract”) whereby
Plocher would provide for Highland the installation of a dewatering plant at 3200 South State
Road, 63, Belt Press Building, Terre Haute, Indiana. (Declaration of Scott J. Plocher (“Plocher
Decl.”), Doc. No. 2-1 at ¶ 5). The Contract contained an arbitration provision which states, inter
alia, that “all claims or disputes arising from or in connection with this Contract … shall finally
be resolved by arbitration administered by and in accordance with the Commercial Industry
Arbitration Rules of the American Arbitration Association …” (Doc. No. 2-3 at § 13.2; Plocher
Decl. at ¶ 6).
On or about December 1, 2014, Plocher, Highland, and Respondent Overseas Lease
Group, Inc. (“Overseas”) entered into an Assignment and Delegation of Construction Contract

(Plocher Decl. at ¶ 7). Pursuant to the Assignment, Overseas accepted all of Highland’s rights
and obligations under the Contract (Doc. No. 2-4 at 3; Plocher Decl. at ¶ 8). Thereafter, a dispute
arose under the Contract between Overseas and Plocher stemming from Overseas’ failure to pay
for the construction work performed by Plocher (Plocher Decl. at ¶ 9).
On or about June 11, 2015, Plocher initiated an arbitration proceeding against Overseas
pursuant to the Construction Contract and Assignment with the American Arbitration
Association (Plocher Decl. at ¶ 10). An arbitration hearing was held in St. Louis, Missouri on
January 31, 2017 before James R. Keller of Herzog Crebs, LLP, Richard Rhyne of Lanthrop &
Gage, and D. Lynn Whitt; the parties appeared represented by counsel. (Plocher Decl. at ¶¶ 11,
12; Doc. No. 2-5). On February 13, 2017, the arbitration panel awarded Plocher $989,694.80 on
its claim and $59,417.37 for administrative fees and expenses, for a total award of $1,049,112.17
(Plocher Decl. at ¶¶ 13, 14; Doc. No. 2-2). On March 14, 2017, Plocher moved to confirm the
final arbitration award pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 6, 9. The
Motion to Confirm Arbitral Award and Memorandum in Support thereof was mailed to Overseas
c/o of its registered agent and to attorney Paul Batista on March 15, 2017 (Doc. No. 4) and
served on Overseas’ registered agent on March 27, 2017 (Doc. No. 7).
Discussion
“The FAA embodies a national policy favoring arbitration; contains a narrow set of
statutory grounds to vacate, modify, or correct an award; and supplies enforcement mechanisms
for these types of actions.” Infinity Fulfillment Grp., LLC v. Cenveo Corp., No. 4:14CV966
SNLJ, 2015 WL 3823166, at *6 (E.D. Mo. June 19, 2015) (citing Hall Street Associates v.
Mattel, 552 U.S. 576, 581-582 (2008)). To that end, section 9 of the FAA provides that any party
may apply, within one year after an arbitration award is made, to the district court for an entry of

-2-

judgment confirming the award. 9 U.S.C. § 9. “A confirmation proceeding under 9 U.S.C. § 9 is
intended to be summary: confirmation can only be denied if the award has been corrected,
vacated, or modified in accordance with the Federal Arbitration Act.” McClelland v. Azrilyan,
31 F. Supp. 2d 707, 713 (W.D. Mo. 1998) (quoting Taylor v. Nelson, 788 F.2d 220, 225 (4th Cir.
1986)). “Section 9 of the FAA provides that federal courts must grant an order confirming an
arbitration award unless the award is vacated, modified, or corrected as prescribed in sections 10
and 11 of this title. Congress did not authorize de novo review of such an award on its merits; it
commanded that when the exceptions do not apply, a federal court has no choice but to confirm.”
UHC Mgmt. Co. v. Computer Scis. Corp., 148 F.3d 992, 997 (8th Cir. 1998) (internal quotation
marks omitted).
Either party may file a motion to vacate, modify or correct an arbitration award. 9 U.S.C.
§ 12. However, such motion must be filed within 90 days of the initial arbitration award. Id.;
Domino Group, Inc. v. Charlie Parker Memorial Foundation, 985 F.2d 417, 419 (8th Cir. 1993).
Failure to do so waives any defenses to confirmation of the arbitration award. Id. at 419-20
(“Failure to file a motion to vacate, modify, or correct within three months ... waived any
defenses to confirmation that might be asserted in a timely motion to vacate.”).
Overseas has not filed a motion to vacate or modify the award, and the time for doing so
expired on May 14, 2017. Given its uncontroverted failure to timely move to vacate the
arbitration award under the FAA, Overseas is precluded from asserting any defenses to
confirmation of the award in a summary proceeding such as this. See, e.g., Norton v. AMISUB
St. Joseph Hospital, 155 F.3d 1040, 1041 (8th Cir. 1998) (plaintiff waived her right to argue that
arbitration agreement was an unenforceable contract of adhesion because she failed to file a
timely motion to vacate award); Med. Shoppe Int’l, Inc. v. Asong, No. 4:05MC499CDP, 2006

-3-

WL 83491, at *2 (E.D. Mo. Jan. 12, 2006). The Court will, therefore, grant Plocher’s motion and
confirm the arbitration award.
Accordingly,
IT IS HEREBY ORDERED that Movants’ Motion to Confirm Arbitral Award [1] is
GRANTED. A separate Judgment will accompany this Memorandum and Order.

Dated this 19th day of May, 2017.

__________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

-4-