Arshad v. Transportation Systems, Inc. et al

Filing 69

MEMORANDUM AND ORDER granting 61 Motion to Confirm Arbitration. Accordingly, for the reasons stated above, the Court rejects petitioner's application for an award of attorney's fees and costs. Further, the Court confirms the unopposed a rbitration award in the sum of $5,750 plus statutory interest. The Clerk of the Court is respectfully directed to close the motion pending at ECF No. 61, enter judgment in accordance with this memorandum and order, and close the case. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 3/27/2023) (tg) Transmission to Orders and Judgments Clerk for processing.

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

MEMORANDUM AND ORDER

- against –

15 Civ. 2138(NRB)

TRANSPORTATION SYSTEMS, INC.;
EXECUTIVE TRANSPORTATION GROUP
LTD.; LOVE LIMOUSINE NYC, LTD,
d/b/a BLUE LINE; JOHN ACIERNO;
JEFFREY ACIERNO; FRED SOLOMON;
and HAIDER “WALLY” HAIDERE,
Respondents.
------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
This

Memorandum

and

Order

addresses

Muhammad

Arshad’s

(“petitioner” or “Arshad”) petition to confirm an arbitral award
of $5,750 plus statutory interest on the sole claim on which he
prevailed in the arbitration between the parties.
is

not

opposed

by

Transportation

Systems,

This petition

Inc.;

Executive

Transportation Group Ltd.; Love Limousine NYC, Ltd., d/b/a Blue
Line

Corporate

Car

and

Acierno; and Fred Solomon

1

USA Limo Inc.;

John

Acierno; Jeffrey

(collectively, “respondents”). 1

Haider “Wally” Haidere (“Haidere”) is represented separately from the other
respondents (collectively with Haidere, “defendants”). The arbitrator did not
make any award against Haidere and Haidere did not file any submission on this
petition.

In the normal course that would resolve the petition to
confirm.

However, here petitioner has accompanied the petition to

confirm with an application for an award of $14,935 in attorney’s
fees and costs “arising out of litigation in this forum, including
preparation of this Petition.”

Petition to Confirm Arbitration

Award (“Petition”) at 15, ECF No. 61.

Respondents oppose the fee

application.
BACKGROUND
I.

Factual Background and Procedural History
The Court assumes familiarity with the underlying facts of

this case, which were detailed in our prior opinion.

See Arshad

Transp. Sys., Inc., 183 F. Supp. 3d 442 (S.D.N.Y. 2016) (“Mem. &
Order I”).

We recite only those facts necessary to resolve the

petition.
Respondents operate a black car service through a number of
separately

incorporated

¶¶ 13, 16, ECF No. 12.

companies.

Amended

Complaint

(“AC”)

On September 15, 2009, petitioner entered

into an agreement (“Subscription Agreement”) with one of those
companies, Love Limousine NYC, Ltd., (“Love Limousine”) d/b/a Blue
Line Corporate Car (“Blue Line”) to purchase a franchise by which
petitioner obtained the right to accept dispatches from Blue Line’s

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dispatch network and drive Blue Line Customers.

AC ¶ 62.

The

Subscription Agreement contained an arbitration clause.
On March 20, 2015, petitioner filed a Complaint in this Court
and later amended the Complaint on August 18, 2015 (“Amended
Complaint”).

See ECF Nos. 1, 12.

The Amended Complaint asserted

six causes of action related to petitioner’s claim that from 2013
to 2014 he was harassed and discriminated against because he is
“Asian,” a “Sunni,” and “originally from Pakistan.”

AC ¶¶ 4-6.

He further claimed he was retaliated against when he reported the
harassment (collectively, the “Original Claims”).2

Id. ¶ 165.

Because the Subscription Agreement included an arbitration
clause, respondents filed a motion to dismiss the Amended Complaint
or compel arbitration on September 21, 2015.

See ECF Nos. 14-15.

The Court found that there was an enforceable arbitration clause
and that the issue of arbitrability was to be decided by the
arbitrator, observing that if the issue were before the Court, the
Court would have found that the claims fell within the agreement
to arbitrate.

See Mem. & Order I.

2

The six causes of action were: (1) hostile work environment under 42 U.S.C.
§ 1981; (2) retaliation under 42 U.S.C. § 1981; (3) hostile work environment
under Title VII, (4) retaliation under Title VII; (5) hostile work environment
in violation of the New York City Human Rights Law (“NYCHRL”); and
(6) retaliation under NYCHRL. See AC.

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Petitioner

then

filed

his

statement

of

claims

with

the

American Arbitration Association on June 22, 2016, asserting the
same Original Claims.

See Letter from B. Nash, dated June 24,

2016, ECF No. 26. The arbitrator bifurcated the arbitration, first
deciding whether petitioner was considered an employee or
independent contractor.

See ECF No. 61-2.

an

During the first phase

of arbitration, petitioner amended his statement of claims to add
a claim for post-termination retaliation (“Additional Arbitration
Claim”).

See

ECF

No.

61-7.

This

claim

alleged

that

the

respondents retaliated against petitioner, because respondents did
not offer petitioner a settlement of $5,700 in another pending
litigation (“Acar Litigation”) that had been offered to other Acar
Litigation plaintiffs, unless petitioner also settled the present
lawsuit as part of a global settlement of the two disputes.

Id.

¶¶ 166-183.
On July 21, 2021, the arbitrator issued her final order
(“Final Order”), finding for the respondents on all of the Original
Claims.

See Final Order, ECF No. 61-9.

The sole claim on which

the arbitrator found for petitioner was the Additional Arbitration
Claim – the claim that was not included in the Amended Complaint
filed in this Court.

On this claim, the arbitrator awarded

petitioner $5,750 with statutory interest, i.e., the settlement

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amount that he was denied in the Acar Litigation when he refused
to agree to a global settlement.

Id. at 12.

The Final Order

explicitly stated: “No other damages are awarded and other claims,
not referenced in this award are dismissed.”
Despite

the

arbitrator’s

decision,

Id.

petitioner

sought

submit an application for attorney’s fees to the arbitrator.
Email from D. Nanau, dated July 21, 2021, ECF No. 66-2.

to
See

Once

again, the arbitrator’s rejection of the fee request was abundantly
clear:
In my final AWARD, I stated “No other damages are awarded
and other claims, not referenced in this AWARD, are
dismissed.”
I had considered Claimant’s request for
attorney’s fees and costs in her Brief and, in my
discretion, determined that I would not award such fees,
etc. The above statement, in my AWARD, was dispositive
of the matter of attorney’s fees.
Email from J. Spencer, dated July 22, 2021, ECF No. 66-3.
Still unsatisfied, petitioner filed a letter on October 12,
2021 with this Court, requesting until January 31, 2022 to submit
post-arbitration briefing challenging the arbitrator’s decision
not to permit petitioner to file a fee application.
55.

After the Court

See ECF No.

initially endorsed petitioner’s letter,

respondents filed a motion for reconsideration predicated on 9
U.S.C. § 12.

See ECF No. 57.

That statute operates as a statute

of limitations and it requires that a challenge to an arbitral
award must be filed within three months of its issuance.
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Id.

After conducting its own research, on November 19, 2021, the Court
granted

respondents’

motion

for

reconsideration

and

denied

petitioner’s request to submit post-arbitration briefing on the
denial of attorney’s fees.

We held that the statute creates a

strict three-month deadline to vacate, modify, or correct an
arbitration award, and that petitioner’s October 12, 2021 letter
did not constitute notice under the statute.

See Mem. & Order,

dated Nov. 19, 2021 (“Mem. & Order II”), ECF No. 60.
Petitioner thus unable to challenge the award, has reversed
course and now seeks to affirm it.

As noted earlier, in the

petition to affirm, petitioner also included an application for
the attorney’s fees and costs incurred for the work done in this
forum.

See Petition ¶¶ 95-105.

In total, petitioner claims

compensation for 32.3 hours at a rate of $450 per hour, for a total
of $14,535.

See id. ¶¶ 101, 103.

Specifically, petitioner seeks

compensation for the 7.9 hours spent drafting the Original and
Amended complaints, for the 22.1 hours spent responding to the
motion to compel arbitration, and for the 2.3 hours spent drafting
the current petition to confirm.
(“Exhibit K”), ECF No. 61-11.

See Exhibit K to Petition

Petitioner also seeks to recover

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the $400 filing fee.3

Id. ¶ 104.

For the reasons stated below,

the application for fees is denied in its entirety.
DISCUSSION
Petitioner’s application for fees for work done in this forum
is

unsupported

frivolous.

by

any

authority

and

borders

on

the

legally

It is clear, beyond cavil, that petitioner cannot

recover any fees for the arbitration itself.

Not only did the

arbitrator reject his request twice, but petitioner also forfeited
any right to challenge the arbitrator’s decision by failing to
file a timely motion to vacate.
As for petitioner’s litigation in this Court, he seems to
forget that after he filed his Amended Complaint, defendants moved
to compel arbitration based on a Subscription Agreement between
the parties which contained a binding arbitration clause and that
defendants’ motion was granted.

Thus, petitioner did not succeed

at all in this forum.4

3

“[A]ttorney’s fees awards include those reasonable out-of-pocket expenses
incurred by attorneys and ordinarily charged to their clients.”
LeBlancSternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (internal quotation
marks and citation omitted). As such, the Court considers the request for the
$400 filing fee as part of the request for attorney’s fees.
4

Ironically, the vast majority of the attorney’s fees that petitioner now seeks
are related to his unsuccessful efforts to defend against the motion to compel
arbitration. Of the 32.3 hours at issue here, 22.1 of those involved responding
to the motion to compel arbitration. Exhibit K, ECF No. 61-11. These expenses
are self-inflicted wounds.
Indeed, defendants might have sought attorney’s
fees related to the motion to compel arbitration.
Sinavsky v. NBCUniversal
Media, LLC, No. 20-cv-9175, 2021 WL 4151013, at *6 (S.D.N.Y. Sept. 13, 2021)
(“Courts have awarded attorney’s fees in ‘cases involving unfounded opposition

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This Court operates under the American Rule.

“In federal

practice[,] the general rule — known as the ‘American Rule’ — is
that each party bears its own attorney’s fees.” McGuire v. Russell
Miller, Inc., 1 F.3d 1306, 1312 (2d Cir. 1993).

Thus, attorney’s

fees are only available if agreed to by contract or provided by
statute.

Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 199

(2d Cir. 2003).5
Petitioner nonetheless claims that attorney’s fees should be
awarded under the New York City Human Rights Law (“NYCHRL”).
Petition ¶ 96.

The law states “the court, in its discretion, may

award the prevailing party reasonable attorney’s fees, expert
fees, and other costs.”
added).

N.Y. Admin. Code § 8-502(g) (emphasis

However, petitioner did not prevail on any NYCHRL claim

in this Court, as no such claim was ever ruled on. 6

to petitions to compel arbitration . . . where the party refusing arbitration
acted without justification or did not have a reasonable chance to prevail.’”
(quoting Amaprop Ltd. v. Indiabulls Fin. Servs. Ltd., No. 10-cv-1853, 2011 WL
1002439, at *3 (S.D.N.Y. Mar. 16, 2011) (internal citations omitted)
(alterations in original)).
5

The same rules apply when the case is before an arbitrator. In arbitration,
“[u]nder some circumstances, the prevailing party may recover attorney fees if
the parties provide for the remedy of attorney fees in their arbitration
agreement or if authorized by statute, or if justified by circumstances in which
the losing party acted in bad faith.” 2 Domke, Commercial Arbitration § 35.22
(3d ed. 2022).
6

Even if petitioner had prevailed on a NYCHRL claim, the Court is not required
to award attorney’s fees under the statute, but simply has discretion to award
them.
“‘[T]he most critical factor’ in a district court’s determination of
what constitutes reasonable attorney’s fees in a given case ‘is the degree of
success obtained’ by the plaintiff.” Barfield v. N.Y.C. Health & Hosp. Corp.,

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Moreover, the claim on which petitioner “prevailed” in the
arbitration was added during the course of the arbitration and was
not included in the Complaint or Amended Complaint filed before
this Court.

See ECF No. 61-9.

To reiterate, petitioner lost on

every motion and claim filed in this Court.
Finally, petitioner is not entitled to the limited attorney’s
fees related to the present petition to confirm. Typically, courts
award attorney’s fees as part of a petition to confirm an arbitral
award “when a challenger refuses to abide by an arbitrator’s
decision without justification”.

Int’l Chemical Workers Union,

Local No. 227 v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir.
1985).

Here, however, the respondents have agreed to pay the

entire award ordered by the arbitrator.
Declaration, ECF No. 66-4.

See Exhibit 4 to Butt

Therefore, there is no basis to award

attorney’s fees on the petition to confirm arbitration.
CONCLUSION
Accordingly, for the reasons stated above, the Court rejects
petitioner’s application for an award of attorney’s fees and costs.
Further, the Court confirms the unopposed arbitration award in the
sum of $5,750 plus statutory interest.

The Clerk of the Court is

537 F.3d 132, 152 (2d Cir. 2008) (quoting Farrar v. Hobby, 506 U.S. 103, 114
(1992)).

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respectfully directed to close the motion pending at ECF No. 61,
enter judgment in accordance with this memorandum and order, and
close the case.
SO ORDERED.

Dated:

New York, New York
March 27, 2023
____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

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