Pacelli v. Vane Line Bunkering, Inc.

Filing 22

OPINION AND ORDER re: 4 MOTION to Vacate Arbitration /Notice of Summary Judgment Motion Seeking to Vacate Arbitration Award. filed by Daniel Pacelli. For the reasons stated, Pacelli's petition to vacate the arbitration award is denied, and his petition to confirm the arbitration award is granted. The Clerk of Court is respectfully directed to terminate all pending motions and close this case. (Signed by Judge John P. Cronan on 7/16/2021) (nb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DANIEL PACELLI,
:
:
Petitioner,
:
:
-v:
:
VANE LINE BUNKERING, INC., doing business as
:
VANE BROTHERS,
:
:
Respondent.
:
:
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20 Civ. 9431 (JPC)
OPINION
AND ORDER

JOHN P. CRONAN, United States District Judge:
Daniel Pacelli won an arbitration award against Vane Line Bunkering, Inc. (referred to as
“Vane Brothers,” the name under which the company does business) for injuries he sustained while
working on a barge in New York Harbor. While the arbitrator concluded that the total award was
nearly $1 million, he determined that Vane Brothers was responsible for only 30% of it because
Pacelli was contributorily negligent.
Before the Court is Pacelli’s petition to vacate this arbitration award. In the event that the
Court declines to do so, Pacelli asks the Court to confirm the award he received (i.e., the 30% that
Vane Brothers must cover), which equals $296,025. Vane Brothers opposes vacatur but does not
oppose confirmation of the award. For the reasons stated below, the Court denies Pacelli’s petition
to vacate the award and grants Pacelli’s petition to confirm the award.
I. Background
A. Underlying Facts
The following facts are undisputed and are taken from the Petition to Vacate Arbitration
Award, Dkt. 1 (the “Petition” or “Pet.”), and the arbitrator’s Final Award, Dkt. 6 (“Skolnick

Declaration” or “Skolnick Decl.”), Exh. A ( “Award”).
Pacelli worked as a tankerman for Vane Brothers, a company that “owned and operated
barge and tugboat fleets in various parts of the country.” Pet. ¶ 6; see Award at 3. In March 2017,
he was working on a barge in New York Harbor. Pet. ¶ 7; Award at 4. The barge was scheduled
to deliver fuel and oil to another ship on the morning of March 15, 2017. Award at 4.
On March 14, 2017, a nor’easter struck, which caused the harbor to shut down due to
“frigid conditions.” Id. at 5; see also Pet. ¶ 9. Pacelli worked the early morning shift that day
from midnight to 6:00 a.m. Award at 5; see also Pet. ¶ 8. His boss, the barge’s captain, Michael
J. Mikus, told Pacelli, “they want to get as much product onboard before the blizzard hits.” Pet.
¶ 10; Award at 5. When Pacelli pointed out that it had already started snowing, Captain Mikus
responded, “Danny, I’m sorry. I don’t know what to tell you.” Pet. ¶ 10; Award at 5. Captain
Mikus went to his room and shut the door. Pet. ¶ 10; Award at 5. Pacelli then filled the cargo
tanks with 24,000 barrels of fuel and oil. Pet. ¶ 11; Award at 5. He finished his shift and went to
sleep at 6:00 a.m. Pet. ¶ 11; Award at 5.
Pacelli returned to work at noon. Pet. ¶¶ 8, 12; Award at 5. At 12:20 p.m., the barge
received word that it would be transported to a terminal at 6:00 a.m. the following morning to
deliver the fuel and oil that Pacelli had loaded. Pet. ¶ 12. Captain Mikus and Pacelli shoveled
snow on the barge that afternoon in order to make paths for a crew that was scheduled to arrive to
transport the barge the next day. Id.; Award at 5. Pacelli finished his shift at 6:00 p.m. and went
to bed. Pet. ¶ 12; Award at 5.
He started his next shift at midnight on March 15, 2017. Pet. ¶ 15; Award at 5-6. Because
this shift was his last before a two-week break, Pacelli spent the first few hours performing “basic
cleanup” to prepare the barge for the new crew. Pet. ¶ 15; Award at 6. At 3:00 a.m., Pacelli went
2

to throw his dirty mop water over the side of the barge, but noticed that the deck had “turned into
a sheet of ice.” Pet. ¶ 16; Award at 6. Pacelli anticipated that the lower deck’s mooring lines,
which were used to tie the barge to the dock, would have to be untied before the barge’s departure
a few hours later. Pet. ¶ 16. He thus decided to spread salt on the upper and lower decks in an
effort to remove the ice. See id.; Award at 6.
A tugboat was positioned alongside the barge, in the ship’s “notch.” Pet. ¶ 17; Award at
6. Before placing salt on the decks, Pacelli attempted to get the attention of someone in the tugboat,
but was unsuccessful. Pet. ¶ 17; Award at 6. He considered climbing into the tugboat to see if one
of the crew members could help him salt the decks, but decided to do it himself. Pet. ¶ 17; Award
at 6-7. He also did not wake Captain Mikus or wait for the new crew to arrive to assist him. Award
at 7.
Pacelli retrieved several 50-pound bags of salt, poured the salt into a bucket, and spread
the salt across the upper deck. Pet. ¶ 18; Award at 7-8. Salting the upper deck was easy because
it was very wide. See Pet. ¶ 18; Award at 8. The lower deck, on the other hand, was much
narrower, which made for a trickier task. See Pet. ¶ 18; Award at 8. According to Pacelli, the
“best way” to salt the lower deck was to lean over the upper deck handrails and throw the salt onto
the lower deck. Award at 8; see also Pet. ¶ 19. However, Pacelli could not use this method because
he knew that the upper deck handrails needed maintenance. Pet. ¶ 19; Award at 8. He had
previously told Captain Mikus that the cables affixing the handrails had broken, but Captain Mikus
did not properly fix the problem or report it to anyone. Pet. ¶ 19; Award at 8-9. So Pacelli decided
to go down to the lower deck to salt that area of the barge. Pet. ¶ 19; Award at 9.
While salting the lower deck, Pacelli kept his flashlight in his pocket. Pet. ¶ 20; Award at
9. At approximately 4:00 a.m., he slipped and landed on his left arm. Petition ¶ 21; Award at 10.
3

The grab rails on the lower deck were not fully accessible because they were covered by mooring
lines. Petition ¶ 20; Award at 9. As he fell, Pacelli grabbed the deck hatch to avoid falling
overboard. Petition ¶ 21; Award at 10. As a result of this accident, Pacelli “tore the rotator cuff
on both of his shoulders, tore a bicep tendon on one arm and partially tore a bicep tendon on the
other arm, and sustained herniation of cervical disks in the neck.” Pet. ¶ 22; see Award at 17-19.
B. Arbitration
Pacelli brought a JAMS arbitration action against Vane Brothers. See Award at 2. On
August 23, 2017, JAMS informed the parties that Ariel E. Belen had been appointed as the
arbitrator. Skolnick Decl., Exh. G. That same day, JAMS provided the parties with a disclosure
report, which indicated that JAMS did not have any prior or pending cases involving the parties.
Pacelli’s counsel, or Pacelli’s counsel’s law firm. Id., Exh. I. However, the report disclosed that
JAMS had one open case involving Vane Brothers’ counsel and his law firm. Id. On March 13,
2019, JAMS informed the parties that Belen had been selected to serve as the arbitrator in another
case involving Vane Brothers, its counsel, and its counsel’s firm. Id., Exh. J.
The arbitration hearing for Pacelli’s case was held on September 23 and 24, 2019. See
Award at 2. On December 5, 2019, the arbitrator sent a letter to the parties disclosing that he was
an “owner panelist of JAMS” but had “never received a profit distribution of more than .1% of
JAMS total revenue in a given year.” Skolnick Decl., Exh. M. He said that he disclosed this in
order “[t]o conform to recent case law.” Id. The next day, JAMS sent the parties a document that
disclosed that in the previous five years, JAMS had one open arbitration case, four closed
arbitration cases, and one closed mediation with Vane Brothers; one open arbitration case and one
closed arbitration case with Vane Brothers’ counsel; and one open arbitration case and six closed
mediations with Vane Brothers’ counsel’s law firm. Id., Exh. N.
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On January 8, 2020, after the submission of final post-hearing briefs, the arbitration was
deemed closed. Pet. ¶ 35; see also Skolnick Decl., Exh. O at 12-13. According to Rule 24(a) of
the JAMS Comprehensive Arbitration Rules & Procedures, the arbitrator was required to provide
a final award within 30 days of this date. Skolnick Decl., Exh. O at 13. However, the arbitrator
requested several extensions of this deadline, and all parties consented. See id., Exhs. P-R. The
arbitrator then scheduled oral argument to “seek clarity” on a few issues. Id., Exh. S. At oral
argument, the arbitrator stated he would issue a decision by June 30, 2020. Id., Exh. FF. He sought
several extensions of this deadline too, and no party objected. Id., Exhs. HH-LL.
On August 14, 2020, the arbitrator issued the award. He determined that Pacelli was
entitled to $986,750 based on the damages he sustained, and that Vane Brothers would be
responsible for 30% of this. Award at 25. In reaching this decision, the arbitrator noted that Vane
Brothers was negligent in several respects. First, he explained that Captain Mikus had “an
obligation to ensure that the barge was safe and seaworthy and to protect his crew” and in light of
the ice that had developed, “[h]e failed to do so.” Id. at 12. Specifically, Captain Mikus did not
hold a “Job Safety Analysis” meeting with Pacelli prior to the beginning of Pacelli’s shift, as was
required by Vane Brothers’ job safety manual. Id. at 12-13. Further, the arbitrator found that
Captain Mikus acted negligently when he failed to repair the upper deck handrails after Pacelli
told him about their defects. Id. at 14. And the broken handrails “clearly led to [Pacelli’s] decision
to go down to the lower deck to spread salt.” Id.
However, the arbitrator also found that “it was not a reasonable exercise of ordinary care
for [Pacelli] to descend to the lower deck.” Id. at 16. He explained that Pacelli “knew that the
only thing that could prevent his slipping and falling and potentially drowning was a grab rail that
was not reliable or accessible.” Id. Further, the arbitrator noted that Pacelli could have asked for
5

help in three ways: (1) “he could have called the tugboat that was in the notch of the barge to ask
for assistance”; (2) “he could have gone back to the living quarters of the barge, woken up Capt.
Mikus and asked for his instructions and assistance”; and (3) “he could have simply waited until
the additional crew arrived in the morning, alerted them before they arrived on board about the
dangerous ice conditions and requested their assistance.” Id. The arbitrator thus concluded that
Pacelli was “70% negligent for not seeking assistance.” Id. at 17. Since Vane Brothers was
responsible for only 30% of the total award, Pacelli effectively won $296,025. Id. at 25.
C. Procedural History
On November 10, 2020, Pacelli filed his Petition seeking vacatur of the arbitration award.
In support of this petition, he also filed a motion to vacate arbitration, Dkt. 4, a memorandum of
law in support of his motion, Dkt. 5 (“Motion”), and a declaration from his attorney, Martin P.
Skolnick, Skolnick Decl., which includes key exhibits from the arbitration proceeding. Because
Pacelli styled his motion as one for summary judgment, he also filed a statement pursuant to Local
Civil Rule 56.1. Dkt. 7. On January 8, 2021, Vane Brothers filed an opposition to Pacelli’s Petition
and his motion to vacate the arbitration award. Dkt. 17 (“Opposition”).
On June 25, 2021, the Court entered a stipulation signed by both parties that indicated that
Pacelli’s motion would be deemed to include an alternative request for confirmation of the
arbitration award. Dkt. 21. The stipulation required Vane Brothers to file any response or
objection to Pacelli’s request for alternative relief by July 2, 2021. Id. at 2. Vane Brothers did not
file a response, and the Court understands that Vane Brothers does not oppose this request.
II. Legal Standard
When reviewing an arbitration award under the Federal Arbitration Act (“FAA”), 9 U.S.C
§ 1 et seq., a court “can confirm and/or vacate the award, either in whole or in part.’” Scandinavian
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Reinsurance Co. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, 71 (2d Cir. 2012) (quoting
D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 104 (2d Cir. 2006)). “[A]rbitral awards and the
arbitral process” deserve “strong deference.” Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC,
497 F.3d 133, 138 (2d Cir. 2007).
“Under the FAA, courts may vacate an arbitrator’s decision ‘only in very unusual
circumstances.’” Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 568 (2013) (quoting First
Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942 (1995)). Pursuant to section 10(a) of the FAA,
a district court may vacate an arbitration award on four grounds. 9 U.S.C. § 10(a). Two are
relevant here. First, a court may vacate an award “when there was evident partiality or corruption
in the arbitrators.” Id. § 10(a)(2). Second, a court may vacate an award “where the arbitrators
were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in
refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior
by which the rights of any party have been prejudiced.” Id. § 10(a)(3).
In addition to the bases set forth in the FAA, in this Circuit, “an arbitration award may also
be vacated based on the judicially-created doctrine of ‘manifest disregard of the law.’” Interdigital
Commc’ns Corp. v. Samsung Elecs. Co., 528 F. Supp. 2d 340, 354 (S.D.N.Y. 2007) (quoting
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 933 (2d Cir. 1986)); accord
Seneca Nation of Indians v. New York, 988 F.3d 618, 625 (2d Cir. 2021). “An arbitral award may
be vacated for manifest disregard only where a petitioner can demonstrate ‘both that (1) the
arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether, and
(2) the law ignored by the arbitrators was well-defined, explicit, and clearly applicable to the
case.’” Porzig, 497 F.3d at 139 (quoting Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir. 2004)).
Thus “[t]o vacate for manifest disregard, the Court must identify ‘something beyond and different
7

from a mere error in the law or failure on the part of the arbitrator[] to understand or apply the
law.’” Walton Ave. Assocs., LLC v. Bragg as Trustee of 32 BJ N. Health Fund, No. 19 Civ. 10245
(LAP), 2020 WL 6807353, at *3 (S.D.N.Y. Nov. 18, 2020) (quoting Westerbeke Corp. v. Daihatsu
Motor Co., 304 F.3d 200, 208 (2d Cir. 2002)). In other words, “the award should be enforced,
despite a court’s disagreement with it on the merits, if there is a barely colorable justification for
the outcome reached.” T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329, 339 (2d
Cir. 2010) (internal quotation marks omitted).
These stringent standards show that in order to obtain vacatur of an arbitration decision, a
petitioner “must clear a high hurdle.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662,
671 (2010). A petition to vacate an arbitration award is “not an occasion for de novo review of an
arbitral award,” but instead is “severely limited so as not to frustrate the twin goals of arbitration,
namely, settling disputes efficiently and avoiding long and expensive litigation.” Scandinavian
Reinsurance Co., 668 F.3d at 71-72 (internal quotation marks and citations omitted).
Confirming an arbitration award is much easier. Under section 9 of the FAA, “a court
‘must’ confirm an arbitration award ‘unless’ it is vacated, modified, or corrected.” Hall St. Assocs.,
L.L.C. v. Mattel, Inc., 552 U.S. 576, 582 (2008) (quoting 9 U.S.C. § 9). “Normally, confirmation
of an arbitration award is ‘a summary proceeding that merely makes what is already a final
arbitration award a judgment of the court.’” D.H. Blair & Co., 462 F.3d at 110 (quoting
Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984)).
III. Discussion
A. Vacatur of the Arbitration Award
Pacelli argues that the arbitration award here must be vacated for three reasons. None of
Pacelli’s arguments carry the day.
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1. Manifest Disregard
First, Pacelli contends that the arbitrator acted in “manifest disregard of the law.” Motion
at 15-23. While he styles this as two separate arguments, they are essentially two sides of the same
coin. Pacelli argues that the arbitrator erred when he reduced Pacelli’s award by 70%. Id. at 1522. And Pacelli says that the arbitrator erred by concluding that Vane Brothers was only “slightly”
negligent. Id. at 22-23 (quoting Award at 17). The problem for both of these points is that Pacelli
fails to identify a “governing legal principle” that the arbitrator “refused to apply” or “ignored.”
Porzig, 497 F.3d at 139 (quoting Wallace, 378 F.3d at 189).
In Pacelli’s view, the arbitrator manifestly disregarded the law when he concluded that
Pacelli should have sought assistance from either the tugboat crew, Captain Mikus, or the new
crew arriving the following morning. See Motion at 17 (“[T]he decision reducing Pacelli’s Award
failed to cite any evidence that any of these options were viable options, available to Pacelli, which
would have enabled him to avoid his injury.”); id. at 21 (“The governing legal principles, including
the need to inquire . . . whether an alternative option was available in order to establish contributory
negligence . . . were ignored in the Arbitrator’s Final Award decision.”). And, Pacelli says, the
arbitrator further disregarded the law by ignoring that Vane Brothers’ needed “to prove causation,”
i.e., that Pacelli’s “fault contributed to his injury.” Id. Pacelli also points to several pieces of
evidence for support of his position that Vane Brothers was more than “slightly” negligent,
including that the lower deck handrails were partially inaccessible, and that Vane Brothers
continued operations when the rest of New York Harbor had shut down. Id. at 22-23. While
Pacelli recognizes that the arbitrator “undeniably had broad discretion to weigh the evidence as he
saw fit in reaching his decision,” Pacelli contends that the arbitrator did not have “unlimited license
to ignore entire[] evidence of obvious critical importance.” Id. at 23.
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There was no manifest disregard of the law here. Instead, the arbitrator applied the
principle of contributory negligence to the facts at hand and concluded that Pacelli and Vane
Brothers were both partially responsible for Pacelli’s injuries. After concluding that Vane
Brothers’ personnel acted negligently, the arbitrator explained why, in his view, Pacelli was also
negligent. Specifically, he noted that “[a]ny reasonable observer would know that walking on ice
on a [narrow] stretch of ship hull in the middle of New York harbor in freezing temperatures and
in darkness is likely to result in serious injury or death” and that “it was an act of additional
carelessness if not recklessness for [Pacelli] to go down and attempt to salt that deck in these
conditions without first seeking assistance.” Award at 15-16.
Pacelli attempts to persuade this Court that the arbitrator should not have reduced Pacelli’s
award as he did based on the evidence presented. See Motion at 15 (“[T]he draconian result [the
arbitrator] inflicted on the conscientious seaman was not supported by the evidence.”). However,
“the Second Circuit does not recognize manifest disregard of the evidence as proper ground for
vacating an arbitrator’s award.” Wallace, 378 F.3d at 193 (internal quotation marks omitted). And
even if the Court agreed with Pacelli on the merits of the contributory negligence question (and it
is not saying that it does), this would not be enough to vacate arbitration. Id. at 190 (“A federal
court cannot vacate an arbitral award merely because it is convinced that the arbitration panel made
the wrong call on the law. On the contrary, the award ‘should be enforced, despite a court’s
disagreement with it on the merits.’” (quoting Banco de Seguros del Estado v. Mut. Marine Off.,
Inc., 344 F.3d 255, 260 (2d Cir. 2003))); E.I. Dupont De Nemours & Co. v. Jo Tankers, B.V., 172
F. Supp. 2d 405, 408 (S.D.N.Y. 2001) (“The review of an arbitration award for manifest disregard
of the law is not an inquiry into the correctness of the decision or a determination of whether the
court would have reached the same conclusion.”).
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Moreover, the Second Circuit has made clear that a court should not vacate an arbitration
award because of “a simple error in law or a failure by the arbitrators to understand or apply it.”
STMicroelectronics, N.V. v. Credit Suisse Sec. (USA) LLC, 648 F.3d 68, 78 (2d Cir. 2011) (quoting
Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 389 (2d Cir. 2003)).
Instead, vacatur is only appropriate “when a party clearly demonstrates ‘that the [arbitrator]
intentionally defied the law.” Id. (quoting Duferco, 333 F.3d at 393); accord Walton Ave. Assocs.,
LLC, 2020 WL 6807353, at *4. Pacelli has made no showing that this occurred here.
This Court must refrain from vacating an arbitration award “if there is a barely colorable
justification for the outcome reached.” T.Co Metals, LLC, 592 F.3d at 339 (internal quotation
marks omitted). Here, there is. The arbitrator found that both Vane Brothers and Pacelli were
negligent in part and relied on evidence in the record to reach his conclusion. See Award at 1217. That the arbitrator did not agree with Pacelli that Vane Brothers alone was responsible for his
injuries is not a ground that meets the “high hurdle” justifying vacatur. Stolt-Nielsen S.A., 559
U.S. at 671.
2. Evident Partiality
Second, Pacelli points to 9 U.S.C. § 10(a)(2) and argues that vacatur is warranted because
there was “evident partiality . . . in the arbitrator.” Motion at 27 (internal quotation marks omitted).
“Evident partiality may be found only ‘where a reasonable person would have to conclude that an
arbitrator was partial to one party to the arbitration.’” Scandinavian Reinsurance Co., 668 F.3d at
64 (quoting Applied Indus. Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S., 492 F.3d
132, 137 (2d Cir. 2007)). But vacatur is not required “whenever an undisclosed relationship is
discovered.” Certain Underwriting Members of Lloyds of London v. Fla., Dep’t of Fin. Servs.,
892 F.3d 501, 506 (2d Cir. 2018) (quoting Lucent Techs. Inc. v. Tatung Co., 379 F.3d 24, 30 (2d
11

Cir. 2004)). Instead, “[i]t is ‘the materiality of the undisclosed conflict [that] drives a finding of
evident partiality, not the failure to disclose or investigate per se.’” Id. (quoting Nat. Indem. Co.
v. IRB Brasil Resseguros S.A., 164 F. Supp. 3d 457, 476 (S.D.N.Y. 2016)).
Pacelli does not argue that the arbitrator here failed to disclose a material relationship or
even that “a reasonable person would have to conclude that [the] arbitrator was partial.”
Scandinavian Reinsurance Co., 668 F.3d at 64. Instead, he contends that the arbitrator “create[d]
an appearance of bias” when he disclosed his ownership interest in JAMS on December 5, 2019
and JAMS’s involvement with several other cases involving Vane Brothers or Vane Brothers’
counsel’s law firm on December 6, 2019. Motion at 24. This argument readily fails.
The arbitrator here made the disclosures at issue in December 2019. See Skolnick Decl.,
Exhs. M-N. Although this followed the arbitration hearing, it occurred more than eight months
before the arbitrator rendered his final decision. See Award at 26. Pacelli concedes that he never
raised this issue of alleged partiality during the arbitration. Motion at 26-27. But he says that the
Court should look past this because doing so could have “antagonized” the arbitrator and “[i]t
would not have been easy for [him] to start over” with a new arbitration. Motion at 27.
Looking past the fact that Pacelli now asks the Court to do just that (set aside the arbitration
so he can start over), his argument fails as a matter of law. “Where a party has knowledge of facts
possibly indicating bias or partiality on the part of an arbitrator he cannot remain silent and later
object to the award of the arbitrators on that ground. His silence constitutes a waiver of the
objection.” AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc.,
139 F.3d 980, 982 (2d Cir. 1998) (internal quotation marks omitted); accord Rai v. Barclays Cap.
Inc., 739 F. Supp. 2d 364, 374 (S.D.N.Y. 2010) (“[Petitioner] cannot remain silent about the
perceived partiality, and later object when the [arbitrator] reaches a decision he dislikes. His
12

silence constitutes a waiver of his right to object on those grounds.”). If Pacelli had an issue with
the disclosures made in December 2019, he was required to raise the issue to the arbitrator prior
to the arbitrator’s decision, which was not even issued until more than eight months after the
disclosures. Because he did not, Pacelli waived this argument.
But even if he did not, it would still fail. For support of his position, Pacelli relies primarily
on Monster Energy Co. v. City Beverages, LLC, 940 F.3d 1130 (9th Cir. 2019). There, Monster
Energy Co. (“Monster”) and one of its distributors arbitrated a dispute. Id. at 1132-33. The
distributor lost and sought to vacate the arbitration award because it later learned that the arbitrator
had not disclosed that he was a co-owner of JAMS. Id. The distributor argued this amounted to
“evident partiality” under section 10(a)(2) of the FAA. See id. The district court denied vacatur
and confirmed the award, but the Ninth Circuit reversed. Id. at 1138-39. The Ninth Circuit noted
that “over the past five years, JAMS ha[d] administered 97 arbitrations for Monster: an average
rate of more than one arbitration per month.” Id. at 1136. The Ninth Circuit reasoned that although
the arbitrator had disclosed his economic interest in JAMS generally, id., his “failure to disclose
his ownership interest in JAMS—given its nontrivial business relations with Monster—create[d]
a reasonable impression of bias and support[ed] vacatur of the arbitration award.” Id. at 1138. 1
Monster Energy Co. is distinguishable for several reasons. First, in that case, the arbitrator
“did not . . . disclose his ownership interest in JAMS and JAMS’s substantial business relationship

1

It bears mentioning that four Ninth Circuit judges have expressed reservations about
whether Monster Energy was correctly decided. See Monster Energy Co., 940 F.3d at 1139-43
(Friedland, J., dissenting); EHM Prods., Inc. v. Starline Tours of Hollywood, Inc., -- F.4th --, No.
20-55426, 2021 WL 2584404, at *10 (9th Cir. 2021) (VanDyke, J., with Gould, Lee, JJ.,
concurring) (encouraging the Ninth Circuit “to reconsider Monster Energy en banc”). And at least
one district court has also noted that Monster Energy “appears to be at odds” with Third Circuit
precedent. Martin v. NTT Data, Inc., No. 20 Civ. 686, 2020 WL 3429423, at *7 (E.D. Pa. June
23, 2020) (citing Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d 240 (3d Cir. 2013)).
13

with Monster.” Id. Here, the arbitrator disclosed his ownership interest in JAMS and the
organization’s other work with Vane Brothers. See Skolnick Decl., Exhs. M-N. Although these
disclosures occurred after the hearing, all parties had this information more than eight months
before the arbitrator’s final decision. Second, Monster Energy recognized that vacatur was
justified in part because, in that court’s view, administering nearly 100 arbitrations for one of the
parties was “hardly trivial.” 940 F.3d at 1136. Here, Pacelli recognizes that “the total number of
cases JAMS ha[d] with Vane [Brothers], its attorney and its law firm [was] less than the number
cited in Monster Energy.” Motion at 25. Indeed, JAMS had only six with Vane Brothers, two
with Vane Brothers’ counsel, and seven with Vane Brothers’ counsel’s law firm, see Skolnick
Decl., Exh. N, nowhere near the 97 arbitrations at issue in Monster Energy. Pacelli says that such
single-digit numbers are “still non-trivial.” Motion at 25. The Court is not convinced.
Finally, Pacelli seems to assume that the arbitrator’s partial ownership of JAMS and
JAMS’s business relations with Vane Brothers are alone enough to establish evident partiality.
But the Second Circuit has made clear that “[i]t is the materiality of the undisclosed conflict [that]
drives a finding of evident partiality, not the failure to disclose or investigate per se.” Certain
Underwriting Members of Lloyds of London, 892 F.3d at 506 (alteration in original) (internal
quotation marks omitted). In this Circuit, there must be “a showing of something more than the
mere ‘appearance of bias’ to vacate an arbitration award.” Id. at 507 (internal quotation marks
omitted). A court should not “vacate arbitration awards for evident partiality when the party
opposing the award identifies no direct connection between [the arbitrator] and the outcome of the
arbitration.” Id. (alternation in original) (internal quotation marks omitted). Pacelli makes no
showing that the arbitrator’s ownership interest in JAMS or Vane Brothers’ business dealings with
JAMS were material or connected to the ultimate outcome of the arbitration.
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Alternatively, Pacelli argues that the arbitrator’s “partiality is also abundantly clear from
the final Award itself.” Motion at 28. Pacelli cites no authority for the idea that an award on its
face can demonstrate evident partiality. Even so, Pacelli’s issue is not with the amount of the
award, but rather with the proportions that the arbitrator assigned to him and Vane Brothers. Thus,
Pacelli is actually asking this Court to determine de novo that Vane Brothers should be responsible
for a greater percentage of the total award. This, the Court cannot do. Wallace, 378 F.3d at 189
(“A motion to vacate filed in a federal court is not an occasion for de novo review of an arbitral
award.”).
The arbitrator here did not exhibit evident partiality, and therefore the Court will not vacate
the award pursuant to section 10(a)(2) of the FAA.
3. “Extraordinary Delays”
Pacelli also says that “[t]he Arbitrator’s delay in rendering his decision in this case was
extraordinary,” citing the arbitrator’s several requested extensions, which together caused the final
decision to be rendered more than six months after it was originally due under the JAMS Rules.
Motion at 28. Pacelli argues that this delay amounted to “misbehavior by which the rights of [a]
party have been prejudiced.” Id. at 31 (quoting 9 U.S.C. § 10(a)(3)).
Pacelli relies on two cases for this argument, neither of which support his position. First,
he points to Tempo Shain Corp. v. Bertek, Inc., in which the Second Circuit held that an arbitration
panel’s “refusal to continue the hearings to allow” a certain individual “to testify amount[ed] to
fundamental unfairness and misconduct sufficient to vacate the award pursuant to section 10(a)(3)
of the FAA.” 120 F.3d 16, 21 (2d Cir. 1997). Tempo Shain Corp. says nothing about an arbitrator
requesting extensions of the deadline to file the final decision. Pacelli also cites Whitehead v.
Pullman Group, LLC, 811 F.3d 116 (3d Cir. 2016), but this case fares even worse for him. There,
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the Third Circuit affirmed the district court’s decision to deny a motion to vacate an arbitration
award and held that the arbitrator did not err in refusing to hear certain testimony. Id. at 120.
Neither of these cases have anything to do with a delayed final arbitration decision. Pacelli thus
points to no authority to support his position that the arbitrator’s extension requests amounted to
“misbehavior” by the arbitrator such that Pacelli’s rights were prejudiced, especially when Pacelli
consented to the extensions. And the Court is aware of none. This argument lacks all merit.
4. Prejudgment Interest
Finally, Pacelli argues that the Court should vacate the arbitration award because the
arbitrator failed to award him prejudgment interest. Motion at 32-34; see Award at 24 (“The
Claimant’s requests for awards of interest are denied pursuant to JAMS Comprehensive
Arbitration Rules & Procedures, Rule 24(g).”). While Pacelli cites authority that would allow an
arbitrator to grant him prejudgment interest, he fails to point the Court to any case in which a
district court vacated an arbitration award for failure to award prejudgment interest.
Courts “have rejected motions to vacate or modify arbitration awards which have failed to
provide prejudgment interest.” Shamah v. Schweiger, 21 F. Supp. 2d 208, 217 (E.D.N.Y. 1998);
accord Moran v. Arcano, No. 89 Civ. 6717 (CSH), 1990 WL 113121, at *2 (S.D.N.Y. July 27,
1990). When an arbitrator decides “on the merits, not to award prejudgment interest . . . courts are
loath to disturb the ruling of an arbitrator.” Norwest Corp. v. Vulcan Cap. Mgmt., Inc., No. 06
Civ. 6342 (LAP), 2008 WL 11516925, at *1 (S.D.N.Y. Oct. 7, 2008). The Court thus declines to
vacate the arbitration award on this ground.
B. Confirmation of the Arbitration Award
Having concluded that the arbitration award should not be vacated pursuant to section 10(a)
of the FAA, the Court turns to Pacelli’s request for alternative relief: confirmation of the arbitration
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award pursuant to section 9 of the FAA. See Dkt. 21 at 2. As discussed above, the Court “must”
grant this relief “unless the award is vacated, modified, or corrected as prescribed in sections 10
and 11” of the FAA. 9 U.S.C. § 9.
Here, Pacelli’s petition to confirm the award is unopposed, so the Court treats it as an
unopposed motion for summary judgment. See D.H. Blair & Co., 462 F.3d at 110. Summary
judgment is appropriate where “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The Court sees no reason to set aside the award here. As discussed at length above, “[t]here
is no evidence in the record that the award was procured by corruption, fraud, or undue means;
that . . . the arbitrator[] [was] partial or corrupt; that the arbitrator[] [was] guilty of any misbehavior
prejudicing the rights of any party; that the arbitrator[] exceeded or imperfectly executed [his]
power[]; or that there was a manifest disregard of the law.” Clearwater Ins. Co. v. Granite State
Ins. Co., No. 15 Civ. 165 (RJS), 2015 WL 500184, at *2 (S.D.N.Y. Feb. 5, 2015). Pacelli was
bound to arbitrate his claims, see Skolnick Decl., Exh. F at 3, and there is sufficient evidence in
the record to support confirmation of the award, see Award at 3-24. Pacelli’s unopposed petition
to confirm the award is granted.
IV. Conclusion
For the reasons stated, Pacelli’s petition to vacate the arbitration award is denied, and his
petition to confirm the arbitration award is granted. The Clerk of Court is respectfully directed to
terminate all pending motions and close this case.
SO ORDERED.
Dated: July 16, 2021
New York, New York

__________________________________
JOHN P. CRONAN
United States District Judge
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