Arshad v. Transportation Systems, Inc. et al

Filing 60

MEMORANDUM AND ORDER granting 57 MOTION for Reconsideration re; 56 Memo Endorsement filed by Transportation Systems, Inc., Jeffrey Acierno, Haider "Wally&quo Haidere, Executive Transportation Group Ltd., John Acierno, Love Li mousine NYC, Ltd, Love Corporate Car Inc., Love Limousine NYC, LTD d/b/a Blue Line, Fred Solomon, Blue Line Corporate Car. For the reasons stated above, defendants' motion for reconsideration is granted, and the Court's October 22, 2021 memorandum endorsement is vacated. The Clerk of Court is respectfully directed to close the open motion at ECF No. 57. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 11/19/2021) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------X
MUHAMMAD ARSHAD,
Plaintiff,

MEMORANDUM AND ORDER

- against –

15 Civ. 2138 (NRB)

TRANSPORATION SYSTEMS, INC.,
EXECUTIVE TRANSPORATION GROUP
LTD., LOVE CORPORATE CAR INC.,
LOVE LIMOUSINE NYC, LTD., d/b/a
U.S.A. LIMO INC., BLUE LINE
CORPORATE CAR, JOHN ACIERNO,
JEFFREY ACIERNO, FRED SOLOMON,
and HAIDER “WALLY” HAIDERE,
Defendants.
------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Defendants

Transportation

Systems,

Inc.,

Executive

Transportation Group Ltd., Love Corporate Car Inc., Love Limousine
NYC, LTD., Blue Line Corporate Car, John Acierno, Jeffrey Acierno,
Fred Solomon, and Haider “Wally” Haidere have filed a motion for
reconsideration

of

the

Court’s

October

22,

2021

memorandum

endorsement of a letter from plaintiff requesting until January
31, 2022 to file post-arbitration briefing.

For the following

reasons, defendants’ motion is granted, the Court’s October 22,
2021 memorandum endorsement is vacated, and plaintiff’s request to
file post-arbitration briefing is denied, nunc pro tunc.
The Court assumes familiarity with the underlying facts of

this case, which were laid out in our previous opinion in which
this Court granted defendants’ motion to compel arbitration for a
determination on the question of arbitrability of the claims in
question.

See Arshad v. Transportation Systems, Inc., et al., 183

F. Supp. 3d 442 (S.D.N.Y. 2016).

The parties were engaged in

arbitration since April 2016, id. at 449-450, and on July 21, 2021
the arbitrator issued a final arbitration award.

(ECF No. 55-1).

On October 12, 2021 plaintiff filed a letter with the Court
requesting
briefing

until

January

regarding

the

31,

2022

to

arbitrator’s

submit
decision

post-arbitration
not

plaintiff to submit an application for fees and costs.

to

permit

(ECF No.

55). The Court subsequently endorsed plaintiff’s letter on October
22, 2021.

(ECF No. 56).

On October 28, 2021, defendants moved

for reconsideration of the decision to grant plaintiff’s request
and directed the Court to 9 U.S.C. § 12, the statute governing
motions

to

vacate

final

arbitration

awards.

(ECF

No.

57).

Plaintiff and defendants have filed additional letters further
explaining

their

positions,

with

plaintiff

arguing

that

the

October 12 letter should be treated as notice of a motion to
vacate.

(ECF Nos. 58, 59).

While the Court was unaware of the

requirements of 9 U.S.C. § 12 when it granted plaintiff’s initial
request, we have conducted our own research and conclude that the

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statute provides for a strict deadline that cannot be extended and
that plaintiff’s October 12 letter does not constitute notice under
the statute.
Under the terms of 9 U.S.C. § 12, “[n]otice of a motion to
vacate, modify, or correct an award must be served upon the adverse
party or his attorney within three months after the award is filed
or

delivered.”

This

“strictly construed.”

three-month

deadline

is

“absolute”

and

Anglim v. Vertical Grp., No. 16 Civ. 3269,

2017 WL 543245, at *7 (S.D.N.Y. Feb. 10, 2017) (internal citation
and

quotations

marks

omitted).

“[T]he

three-month

deadline

contained in 9 U.S.C. § 12 is not subject to extension.”

Barclays

Cap. Inc. v. Hache, No. 16 Civ. 315, 2016 WL 3884706, at *2
(S.D.N.Y. July 12, 2016).

Even where a party files a motion to

confirm an arbitration award after the three-month deadline has
run out, a “defendant’s failure to move to vacate the award within
the three month time provided precludes him from later seeking
that

relief

when

a

motion

is

made

to

confirm

the

award.”

Florasynth, Inc. v. Pickholz, 750 F.2d 171, 174-75 (2d Cir. 1984).
While in his November 1 letter plaintiff concedes that the threemonth deadline cannot be extended, he instead argues that his
October 12 letter served as notice under 9 U.S.C. § 12.
58).

(ECF No.

Plaintiff provides no authority to support this argument,

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which runs contrary to the manner in which courts apply Section 12
and the overarching goals of the Federal Arbitration Act.
The notice requirement in Section 12 functions by creating a
a finite time period in which a party may challenge an arbitration
award.

While Section 12 does not require that a motion be filed

within

the

three-month

time

period, 1

courts

interpret

the

requirement as related to making a motion rather than simply
informing an adverse party of a future intent to challenge an
arbitration award.

See e.g., Hamilton v. Navient Solutions, LLC,

No. 18 Civ. 5432, 2019 WL 633066, at *4 (S.D.N.Y. Feb. 14, 2019)
(“The three month period prescribed by 9 U.S.C. § 12 is a statute
of limitations and the failure to bring a timely motion is an
absolute bar to an application seeking vacatur or modification.”)
(internal citation and quotation marks omitted); Associated Indus.
Ins. Co. v. Excalibur Reinsurance Corp., No. 13 Civ. 8239, 2014 WL
6792021, at *4 (S.D.N.Y. Nov. 26, 2014) (discussing the service
requirements of 9 U.S.C. § 12 and noting that the “Notice of
Petition” under Section 12 is “a Notice of Motion in federal
parlance”); Hakala v. J.P. Morgan Sec., Inc., 356 F. Supp. 2d 355,
358 n.7 (S.D.N.Y. 2005) (“Section 12, however, requires only that

See Hakala v. J.P. Morgan Secs., Inc., 186 F. App’x 131, 133 (2d Cir. 2011)
(“[B]y its plain language, § 12 applies to notice, i.e., service, it does not
apply to filing.”)
1

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a motion to vacate [be] served upon the adverse party or his
attorney

within

three

months

after

the

award

is

filed

or

delivered.”) (internal citation and quotation marks omitted); see
also Integrity Nat’l Corp., Inc. v. DSS Servs., Inc., No. PWG-17160, 2017 WL 6492718, at *5 (D. Md. Dec. 19, 2017) (“What the
statute requires is service of notice of an actual motion, not a
theoretical motion that has yet to be filed.”)
In fact, under similar circumstances, another court in this
Circuit found that the notice requirement was not satisfied where
a party requested an extension of the three-month deadline to file
a motion to vacate an arbitration award.

Zheng v. Gen. Electric

Co., No. 15 Civ. 1232, 2017 WL 11286183 at *4-5 (N.D.N.Y. July 12,
2017). 2 Were we to accept plaintiff’s October 12 letter as suitable
notice, we would in effect be granting an extension until January
31, 2022, since plaintiff has indicated that he does not plan to
move until after the New Year.

Plaintiff’s counsel states in the

October 12 letter that she is busy working on “trial-level court
matters” as well as “an appeal for the Second Circuit that is due
in

mid-November

2021,”

and

therefore

would

reconsideration” until after the winter holidays.

not

“move

for

(ECF No. 55).

Although the court in Zheng made its decision before the three-month period
had elapsed, which allowed the plaintiff to bring a timely motion to vacate,
there was no discussion of the request functioning as notice under the
statute.
2

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As stated above, an extension of the three-month deadline is
impermissible, and the request runs directly counter to the “twin
goals of arbitration, namely settling disputes efficiently and
avoiding

long

and

expensive

litigation.”

Folkways

Music

Publishers, Inc. v. Weiss, 989 F.2d 108, 111 (2d Cir. 1993).
Accordingly, given that the three-month deadline has passed
and cannot be extended, plaintiff has lost the opportunity to file
notice of a motion to vacate and is barred from amending his
October 12 letter.

Kruse v. Sands Brothers & Co., Ltd., 226 F.

Supp. 2d 484, 487 (S.D.N.Y. 2002) (dismissing a timely filed crosspetition to vacate based on the form of the cross-petition and
finding that petitioner could not file a new motion to vacate after
the three-month statutory time period had run).
CONCLUSION
For

the

reasons

stated

above,

defendants’

motion

for

reconsideration is granted, and the Court’s October 22, 2021
memorandum

endorsement

is

vacated.

The

Clerk

of

Court

respectfully directed to close the open motion at ECF No. 57.
SO ORDERED.
Dated:

New York, New York
November 19, 2021
____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
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