Marciano v. DCH Auto Group

Filing 103

OPINION & ORDER re: 86 FIRST MOTION to Confirm Arbitration and Opposition to Motion to Vacate, filed by DCH Auto Group, Bernard Fee, Brian Lam. The Court denies Plaintiff's Motion To Vacate the Arbitration Decision and grants Defendants ' Motion To Confirm the Arbitration Decision. The Clerk of Court is respectfully directed to terminate the pending motion, (Dkt. No. 86), and to close the case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 4/27/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

LUCIA MARCIANO,
Plaintiff,
No. 11-CV-9635 (KMK)
-vOPINION & ORDER
DCH AUTO GROUP, BRIAN LAM, and
BERNARD FEE,
Defendants.

Appearances:
Lucia Marciano
Larchmont, NY
Pro Se Plaintiff
Kathleen B. Einhorn, Esq.
Dena Calo, Esq.
Genova, Burns & Giantomasi & Webster
Newark, NJ
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Lucia Marciano (“Plaintiff”) commenced this Action in 2011 against
DCH Auto Group (“DCH”), and later amended the Complaint to add Brian Lam (“Lam”), and
Bernard Fee (“Fee,” and collectively, “Defendants”) as Defendants. Plaintiff alleged three
claims of workplace discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., (see Third Am. Compl. ¶¶ 114–17 (Dkt. No. 24)), the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq., (see id. ¶¶ 118–22), and New York’s Human Rights
Law, N.Y. Exec. Law § 290 et seq., (see id. ¶¶ 123–28). In July 2013, Defendants brought a
Motion To Compel Arbitration, (Dkt. No. 35), arguing that Plaintiff was contractually bound to

arbitrate the claims Plaintiff asserted in federal court. On March 31, 2014, the Court issued an
Opinion & Order granting Defendants’ Motion To Compel Arbitration. (Dkt. No. 56.) The
Court stayed this Action pending the resolution of the arbitral proceedings. On November 3,
2016, Arbitrator Sheila S. Cole (“Arbitrator Cole”) issued a decision (the “Arbitration Decision”)
dismissing Plaintiff’s demand for arbitration with prejudice. (See Disposition of Motion To
Dismiss Claimant’s Amended Demand for Arbitration (“Arbitration Decision”) (Dkt. No. 84).)1
Defendants have filed a Motion To Confirm the Arbitration Decision, (Dkt. No. 86), and Plaintiff
has filed a Motion To Vacate, (Dkt. No. 90). For the reasons to follow, Defendants’ Motion is
granted, and Plaintiff’s Motion is denied.
I. Background
The focus of this Court’s Opinion is on whether to confirm or vacate the Arbitration
Decision, and therefore, only the facts and background necessary to decide that issue are
recounted below.
A. Factual Background
On April 16, 2014, Plaintiff filed a Notice of Demand for Arbitration with the American
Arbitration Association (“AAA”) against DCH. (Arbitration Decision 3.) When Plaintiff filed
her Notice of Demand, she was represented by counsel. (Id. at 3–4.) DCH filed an answering
statement in August 2014. (Id. at 3.) On September 18, 2014, Plaintiff’s counsel informed the
AAA that he was no longer representing Plaintiff. (Id. at 3–4.) On October 20, 2014, and
December 18, 2014, Plaintiff was granted extensions of time to obtain new counsel. (Id. at 4.)
The AAA informed Plaintiff that no further extensions would be granted. (Id.)

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There is a dispute as to the day on which Arbitrator Cole issued the Arbitration
Decision. The Court will explain that dispute in further detail below.
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On February 19, 2015, the arbitration was assigned to Arbitrator Cole. (Id.) Plaintiff
again sought to postpone the case until she could acquire new counsel. On March 2, 2015,
Arbitrator Cole agreed to stay the proceeding for 60 days, but informed Plaintiff that no further
such requests would be granted. (Id.) On May 5, 2015, the AAA advised the Parties that the 60
days had expired and requested that the Parties participate in a case management conference.
(Id.) Arbitrator Cole held a scheduling conference on June 17, 2015, and on June 19, 2015 the
Parties executed an order setting deadlines for certain discovery obligations. (Id. at 5.) At the
time the June 17, 2015 scheduling conference was held, Plaintiff was again represented by her
former counsel. (Id.)
On July 1, 2015, Plaintiff filed a Motion To Amend her Demand for Arbitration to
include Lam and Fee as respondents. (Id.) Arbitrator Cole granted Plaintiff’s motion. (Id.)
On October 27, 2015, the Parties executed an amended scheduling order. (Id.) Pursuant
to the amended schedule, the Parties were required to provide responses to discovery requests by
November 30, 2015. (Id.) On December 2, 2015, Defendants provided responses to Plaintiff’s
interrogatory requests and produced 616 documents to Plaintiff. (Id.) On December 18, 2015,
Defendants notified Plaintiff that she failed to comply with her obligation to provide to
Defendants certain documents and information, including an executed HIPPA authorization
form, and requested that Plaintiff remedy these deficiencies by January 11, 2016. (Id.)
On February 2, 2016, Plaintiff’s counsel again withdrew. (Id. at 6.) Plaintiff thereafter
sought to stay the arbitration while she attempted to retain new counsel. (Id.) On March 23,
2016, the AAA placed the arbitration in abeyance until May 31, 2016. (Id.) On May 31, 2016,
Plaintiff requested an additional 60-day extension. Arbitrator Cole denied this request on June
17, 2016. (Id.)

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On June 21, 2016, Defendants again informed Plaintiff that she had not yet complied with
her discovery obligations. (Id.) Defendants requested that Plaintiff remedy the deficiencies by
July 5, 2016. Plaintiff notified Defendants that she could not respond by that deadline, but
would respond as soon as possible after July 19, 2016. (Id.)
On July 19, 2016, Arbitrator Cole granted Defendants’ request for leave to dismiss the
arbitration. (Id.) Arbitrator Cole directed Defendants to file their motion by August 18, 2016.
(Id.) Plaintiff was given until September 19, 2016 to respond. (Id.) On September 13, 2016,
Plaintiff requested an extension of time. (Id.) Arbitrator Cole granted Plaintiff until October 3,
2016 to submit her opposition. (Id.) On that date, Plaintiff submitted her papers. (Id.)
Arbitrator Cole issued the Arbitration Decision on November 3, 2016.
Arbitrator Cole, after recounting much of this procedural history and Plaintiff’s numerous
abeyance and extension requests, held:
On the entire record before me, Respondents’ Motion to Dismiss Claimant’s
Amended Demand for Arbitration is granted.
Both before and after the arbitrator was appointed, Claimant requested and
was granted numerous extensions of deadlines. In addition, because Claimant’s
lawyer twice withdrew as counsel in this matter, Claimant has requested and has
been granted a number of temporary abeyances or extensions of time in which to
retain new counsel. Claimant has not retained new counsel. Although she asserts
that she is unable to afford counsel, Claimant has not indicated an intention to
proceed without counsel. Claimant’s position suggests no realistic expectation that
she would not continue to seek additional extensions of time in which to retain new
counsel, without success. Moreover, even after Respondents were granted leave to
file a Motion to Dismiss, Claimant requested an extension of time in which to
respond.
Respondents correctly point out that they are entitled to a just and efficient
adjudication of this matter. The parties’ dispute has been in arbitration
approximately two and one-half years and has not proceeded beyond the discovery
phase and Respondent[s] ha[ve] notified Claimant that her responses to discovery
requests are deficient. Although Claimant asserts that she has not provided all that
Respondents have asked for in discovery because they are not entitled to receive
some of the requested materials, Claimant failed to seek timely relief. Similarly,
Claimant asserts that Respondents have failed to meet some of its obligations, but
Claimant failed to make these assertions prior to Respondents’ seeking leave to
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move for dismissal of the amended demand for arbitration. Here too, Claimant
failed to seek timely relief for any of Respondents’ alleged deficiencies.
Respondents’ assertion that they have expended a great deal of time and
money in defense of the claims against them is presumed and unrebutted.
Additional delay would increase the resources Respondents would be required to
expend in [their] defense.
Claimant was given notice that further delay could result in dismissal.
Respondents advised Claimant that, if faced with additional delays caused by her
requests [they] would engage in motion practice.
Given Claimant’s continuing to request extensions of time, most recently
after the date Respondents filed their Motion to Dismiss, and her continuing failure
to cure her discovery deficiencies, there is little reason to expect any measure short
of dismissal would effectively move this matter forward.
(Arbitration Decision 14–15.)
B. Procedural History
On November 7, 2016, Defendants notified the Court that Arbitrator Cole issued the
Arbitration Decision. (Dkt. No. 84.) Defendants requested that the Court close Plaintiff’s
federal Action. (Id.) Plaintiff filed a letter in opposition, arguing that the Court should vacate
the Arbitration Decision. (Dkt. No. 85.) Defendants thereafter filed a Motion To Confirm the
Arbitration Decision. (Dkt. No. 86.) On January 30, 2017, Plaintiff filed a letter in opposition to
Defendants’ motion. (Dkt. No. 90.) After reviewing the Parties’ submissions, it became evident
that the Parties had submitted two documents purporting to be Arbitrator Cole’s decision. The
Court issued an Order directing Defendants to file a letter explaining this discrepancy. (Dkt. No.
91.) On February 17, 2017, Defendants filed a response to the Court’s Order. (Dkt. No. 92.) In
the weeks that followed, Plaintiff filed several letters with the Court opposing Defendants’
Motion To Confirm, and arguing that the Arbitration Decision should be vacated. Plaintiff filed

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a letter on March 16, 2017, two letters on March 30, 2017, and a final letter on April 26, 2017.
(Dkt. Nos. 95, 99–100, 102.)2
II. Discussion
“It is well established that courts must grant an arbitration panel’s decision great
deference. A party petitioning a federal court to vacate an arbitral award bears the heavy burden
of showing that the award falls within a very narrow set of circumstances delineated by statute
and case law.” Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d
Cir. 2003); see also ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81, 86 (2d
Cir. 2009) (“If the parties agreed to submit an issue for arbitration, [the Second Circuit] will
uphold a challenged award as long as the arbitrator offers a barely colorable justification for the
outcome reached.” (internal quotation marks omitted)). Pursuant to § 10(a) of the Federal
Arbitration Act (“FAA”), a court may enter an order vacating an arbitration award under the
following circumstances:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of
them;
(3) 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; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them
that a mutual, final, and definitive award upon the subject matter submitted was not
made.

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Plaintiff also submitted a letter on March 3, 2017. (Dkt. No. 96.) Some parts of
Plaintiff’s March 3 submission, however, were not legible so the Court granted Plaintiff
permission to file with the Court a new copy of the letter. (Dkt. No. 94.) Plaintiff submitted a
fully legible copy of the March 3 submission on March 16, 2017. Plaintiff also, without Court
permission, supplemented the submission. (Compare Dkt. No. 95 with Dkt. No. 96.) The Court
therefore assumes that the letter submitted to the Court on March 16 fully replaces the March 3
submission.
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9 U.S.C. § 10(a). The Second Circuit has clarified that “[a] court may also set aside an
arbitration award if it was rendered in manifest disregard of the law.” Zurich Am. Ins. Co. v.
Team Tankers A.S., 811 F.3d 584, 588 (2d Cir. 2016) (internal quotation marks omitted). The
Court construes Plaintiff to be challenging the Arbitration Decision on seven different grounds:
(1) Arbitrator Cole backdated the Arbitration Decision; (2) Arbitrator Cole failed to consider the
evidence Plaintiff offered in opposition to Defendants’ motion to dismiss the arbitration demand;
(3) Arbitrator Cole was biased against Plaintiff; (4) Defendants engaged in ex parte
communications with the AAA and Arbitrator Cole; (5) Defendants participated in arbitration in
bad faith and defaulted on their obligations; (6) Arbitrator Cole should have further postponed
the resolution of the arbitration proceeding; and (7) Arbitrator Cole displayed a manifest
disregard of the applicable law. The Court addresses each of these arguments in turn below.
A. The Alleged Backdating of the Arbitration Decision
Plaintiff argues that the Court should vacate the Arbitration Decision because Arbitrator
Cole engaged in misconduct by backdating the Arbitration Decision. (Letter from Plaintiff to
Court (Jan. 29, 2017) (“Plaintiff’s Second Letter”) at unnumbered 2–3 (Dkt. No. 90).) The
Parties have indeed submitted two different documents purporting to be the Arbitration Decision;
one dated November 1, 2016, and the other dated November 3, 2016. (Compare Arbitration
Decision with Plaintiff’s Second Letter at unnumbered 10–25.) In response to an Order issued
by the Court requesting an explanation for this discrepancy, Defendants contacted the AAA,
which informed Defendants that “Arbitrator Cole submitted a decision dated November 1, 2016
to [the] AAA but that [the] AAA, upon reviewing the decision, identified two typographical
errors.” (Letter from Kathleen B. Einhorn, Esq., to Court (Feb. 17, 2017) 1 (Dkt. No. 92).) After
noticing the typographical errors, the “AAA asked Arbitrator Cole to correct the[] mistakes and

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she did so in her decision dated November 3, 2016.” (Id.) The AAA then mistakenly sent to
Plaintiff the November 1 decision. (Id. at 2.) Nothing about this sequence of events suggests
that the Arbitration Decision was backdated. The Court, therefore, accepts the decision dated
November 3, 2016, as Arbitrator Cole’s final decision.
Along these same lines, Plaintiff argues that Defendants’ communications with the AAA
regarding the date on which the Arbitration Decision was issued were improper. (Letter from
Plaintiff to Court (Mar. 16, 2017) (“Plaintiff’s Third Letter”) 6–8 (Dkt. No. 95).) She believes
that Defendants were requesting a “clarification” of the award. (Id. at 7.) Defendants contacted
the AAA at the direction of the Court to determine why the Plaintiff received a decision dated
November 1, 2016. The Defendants’ communications with the AAA did not alter the Arbitration
Decision in any way, and the AAA confirmed that it made a mistake by giving to Plaintiff the
wrong decision. Thus, the Court finds no wrongdoing on the part of Defendants, especially
because the Court ordered Defendants to determine whether the AAA mistakenly issued two
decisions.
Accordingly, the Court declines to vacate the award on the ground that the Arbitration
Decision was improperly backdated.
B. Failure to Consider Plaintiff’s Evidence
Plaintiff contends that Arbitrator Cole ignored pertinent evidence during the arbitration
proceeding. (Id. at 2.) “A district court may vacate an arbitration award when the arbitration
panel is ‘guilty of misconduct in . . . refusing to hear evidence pertinent and material to the
controversy.’” Max Marx Color & Chem. Co. Emps.’ Profit Sharing Plan v. Barnes, 37 F. Supp.
2d 248, 251 (S.D.N.Y. 1999) (quoting 9 U.S.C. § 10(a)(3)). Plaintiff believes that Arbitrator
Cole refused to consider certain evidence she submitted to the AAA on November 3, 2016.

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(Plaintiff’s Third Letter 2.) The Court concludes that Arbitrator Cole was under no obligation to
consider Plaintiff’s November 3 submission because it was unsolicited and Plaintiff’s deadline to
submit documents and evidence in opposition to Defendants’ motion to dismiss the arbitration
demand had long since passed. Plaintiff’s opposition to Defendants’ motion was originally due
September 19, 2016, but Plaintiff was given an extension until October 3, 2016. (See Arbitration
Decision 6.) Plaintiff submitted her opposition on October 3, and Arbitrator Cole considered the
arguments Plaintiff made in her submission, as is evidenced throughout the Arbitration Decision.
(See id. at 11–13.) Arbitrator Cole did not err by declining to address Plaintiff’s belated
November 3 submission. Cf. Cabassa v. Oshier, No. 11-CV-1237, 2015 WL 5094802, at *6
(N.D.N.Y. Aug. 28, 2015) (“The special solicitude that the [c]ourt is required to extend pro se
[p]laintiff[s] does not extend so far as to warrant the consideration of [the] [p]laintiff’s untimely
filings.” (italics omitted)).3 It is also highly likely that Arbitrator Cole had already rendered the
Arbitration Decision before Plaintiff made her submission, given that the Arbitration Decision
was issued on November 3. Accordingly, the Court declines to vacate the Arbitration Decision
on this basis.
C. Arbitrator Cole’s Bias
Plaintiff argues that Arbitrator Cole was biased against her. (Plaintiff’s Third Letter 2.)
“Evident partiality may be found only where a reasonable person would have to conclude that an

Nor does most of the “evidence” attached to Plaintiff’s November 3, 2016 submission
appear to be new. At the end of the submission, Plaintiff states: “Please see attached relevant
evidence: Notice of Demand for Arbitration[;] Letter from AAA 5-29-14[;] Letter from AAA
June 16, 2014[;] Letter from AAA 7-23-16[;] Signed Answering Statement[;] DCH Auto Group
letter to the Court 5-13-16.” (Plaintiff’s Third Letter Ex. 1, at unnumbered 4.) All of the
evidence, except for DCH Auto Group’s letter to the Court, was apparently authored by or
submitted directly to the AAA, as is evidenced by the way in which Plaintiff described the
documents.
3

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arbitrator was partial to one party to the arbitration.” Kolel Beth Yechiel Mechil of Tartikov, Inc.
v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks omitted).
“Although a party seeking vacatur must prove evident partiality by showing something more
than the mere appearance of bias, proof of actual bias is not required.” Id. (citation, alteration,
and internal quotation marks omitted). However, “[a] showing of evident partiality must be
direct and not speculative.” Id. Plaintiff cannot meet this standard because there is absolutely no
evidence of bias. Plaintiff’s speculation that Arbitrator Cole was biased is an insufficient basis
upon which to vacate the Arbitration Decision. Accordingly, the Court holds that no reasonable
person could conclude that Arbitrator Cole was biased against Plaintiff.
D. Ex Parte Communications
Plaintiff argues that Defendants engaged in ex parte communications with Arbitrator
Cole and the AAA, and that she was prejudiced by those communications. (Plaintiff’s Third
Letter 5; Letter from Plaintiff to Court (Mar. 30, 2017) (“Plaintiff’s Fifth Letter”) 3–5 (Dkt. No.
100).) Before filing the motion to dismiss Plaintiff’s arbitration demand, Defendants contacted
the AAA to determine whether Arbitrator Cole required a “Notice of Motion and a proposed
form of order.” (Plaintiff’s Fifth Letter Ex. A, at unnumbered 4.) The AAA forwarded the
message to Arbitrator Cole, who requested that Defendants file those documents. (Id. at
unnumbered 3.) On August 11, 2016, Defendants mailed to the AAA their motion and
supporting papers and submitted the same via email. (Id. at unnumbered 2.) The AAA
thereafter requested that Defendants mail a hard copy of the documents directly to Arbitrator
Cole. (Id.) Plaintiff contends that she was not included in any of these communications and was
prejudiced because she does not know what information Defendants sent to Arbitrator Cole.
(Plaintiff’s Fifth Letter 3.) It is clear from the documents Plaintiff has submitted in support of

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her Motion To Vacate the Arbitration Decision that Plaintiff received in the mail a copy of
Defendants’ motion to dismiss her arbitration demand on August 12, 2016. (See Plaintiff’s Third
Letter Ex. 7, at 1 (“I received respondents’ dated August 11, 2016 motion to dismiss my case on
August 12th.”).)
To vacate an award on the basis of ex parte communications, Plaintiff must make a twopart showing: “First, the ex parte conversation must have deprived the petitioner of a fair hearing
and influenced the outcome of the arbitration. Second, [the] petitioner must show that the
subject matter of the conversation went to the heart of the dispute’s merits.” Schwartz v. Merrill
Lynch & Co., Inc., No. 09-CV-900, 2010 WL 517585, at *3 (S.D.N.Y. Feb. 8, 2010) (italics,
alteration, citation, and internal quotation marks omitted), aff’d, 665 F.3d 444 (2d Cir. 2011).
Plaintiff has not made this showing. First, many of the communications to which Plaintiff cites
are between Defendants and the AAA and are therefore not ex parte communications between
Defendants and Arbitrator Cole. Second, the emails contain procedural questions that had no
bearing on the outcome of the arbitration. Finally, there is nothing untoward about Defendants
mailing to Arbitrator Cole a copy of their motion papers after being explicitly directed to do so
by the AAA. Plaintiff argues that she was prejudiced by these communications because she does
not know what was mailed to Arbitrator Cole, but there is no basis in the record to conclude that
Defendants sent to Arbitrator Cole anything but a copy of their motion to dismiss Plaintiff’s
arbitration demand, a copy of which Plaintiff also received. None of Defendants’
communications can be said to have prejudiced Plaintiff. Accordingly, the Court declines to
vacate the Arbitration Decision on this ground.4

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The Court notes that Plaintiff may also be guilty of participating in ex parte
communications. Almost all of Plaintiff’s submissions are sent to the Court via fax, and, on at
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E. Defendants’ Participation in Arbitration
The bulk of Plaintiff’s submissions is spent on arguing that Defendants participated in
arbitration in bad faith, failed to timely pay the arbitration fee, and wrongfully objected to
Plaintiff’s discovery demands. (See, e.g., Letter from Plaintiff to Court (Mar. 30, 2017)
(“Plaintiff’s Fourth Letter”) 1 (Dkt. No. 99).) Based on Defendants’ conduct in arbitration,
Plaintiff contends that not only should the Court vacate the Arbitration Decision, but also enter a
default against Defendants.
Plaintiff commenced this Action in December 2011. (See Dkt. No. 2.) In the Complaint,
Plaintiff named DCH as the only Defendant. Plaintiff subsequently amended the Complaint to
add Lam and Fee as Defendants. (See Dkt. No. 15.) Defendants moved to compel arbitration
based on Plaintiff’s employment agreement. In Defendants’ memorandum of law in support of
that motion, Defendants noted that DCH was not Plaintiff’s employer, but rather Plaintiff was
employed by “DCH Midland LLC d/b/a/ DCH Pace BMW.” (Defs.’ Mem. of Law in Supp. of
Mot. To Compel Arbitration 1 n.1 (Dkt. No. 38).) The Court granted Defendants’ Motion To
Compel Arbitration. Plaintiff thereafter commenced the arbitration proceeding. In response to
Plaintiff’s demand for arbitration, Defendant DCH asserted that it was not properly named as a
respondent in the arbitration proceeding because it was never Plaintiff’s employer. (Plaintiff’s
Third Letter Ex. 4.) Despite asserting that DCH was not properly named as a respondent,
Defendants participated in the discovery process and turned over more than 600 documents in
response to Plaintiff’s discovery requests. (See Defs.’ Mem. of Law in Supp. of Mot. To
Confirm Arbitration Decision 6 (Dkt. No. 86).)

least one occasion, Plaintiff contacted chambers to ask a question about a deadline. It is unclear
whether Defendants receive any of Plaintiff’s submissions until the Court dockets them on ECF.
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The Court finds no basis in the record to enter a default against Defendants. The record
reveals that Defendants participated in the arbitration proceeding and Plaintiff is merely
dissatisfied with Arbitrator Cole’s decision. And, even if Defendants were in fact participating
in the proceeding in bad faith or not complying with their obligations, Plaintiff’s recourse was to
alert Arbitrator Cole to Defendants’ noncompliance. Indeed, it is evident from the Arbitration
Decision that Plaintiff did alert Arbitrator Cole about Defendants’ alleged noncompliance, but
Arbitrator Cole found that Plaintiff’s concerns were not timely raised. (See Arbitration Decision
14 (“Claimant asserts that Respondents have failed to meet some of [their] obligations, but
Claimant failed to make these assertions prior to Respondents’ seeking leave to move for
dismissal of the amended demand for arbitration. Here too, Claimant failed to seek timely relief
for any of Respondents’ alleged deficiencies.”).) The Court likewise finds no merit in Plaintiff’s
contentions. Accordingly, the Court declines to vacate the Arbitration Decision based on
Defendants’ alleged misconduct during the arbitration proceeding.
F. Arbitrator Cole’s Failure to Further Postpone the Arbitration Proceeding
“Section 10(a)(3) of the FAA provides in part that a federal court may vacate an
arbitration award where the arbitrators were guilty of misconduct in refusing to postpone the
hearing, upon sufficient cause shown.” Rai v. Barclays Capital Inc., 739 F. Supp. 2d 364, 371
(S.D.N.Y. 2010) (internal quotation marks omitted), aff’d, 456 F. App’x 8 (2d Cir. 2011).
“When determining whether to vacate an arbitral award on these grounds, the court examines the
facts and circumstances surrounding the arbitrator’s refusal to grant an adjournment.” Id.
(alteration and internal quotation marks omitted). After reviewing the facts and circumstances,
the Court concludes that Arbitrator Cole did not err in refusing to further postpone the arbitration

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proceeding. This case was initiated in 2011 and Plaintiff was granted numerous extension
requests throughout the life of these proceedings. (See Arbitration Decision 2–6.)
Plaintiff specifically attacks Arbitrator Cole’s decision to permit Defendants to file a
motion to dismiss, (see, e.g., Plaintiff’s Third Letter 5 (“The arbitrator denied Plaintiff proper
notice and her right to be heard.”)), but Plaintiff was given adequate notice of Defendants’
motion, and adequate time to respond to the motion. It appears that Plaintiff is arguing that she
should have been consulted before Defendants were given permission to file a motion to dismiss.
Arbitrator Cole, however, was under no obligation to consult Plaintiff before permitting
Defendants to file a motion. Moreover, even if Arbitrator Cole should have received input from
Plaintiff before allowing Defendants’ motion, Plaintiff was not harmed by any such failure
because Plaintiff was given ample time to respond to the motion. Defendants filed their motion
papers on August 11, 2016, and Plaintiff was given until October 3, 2016 to respond.
(Arbitration Decision 1.) Accordingly, the Court declines to vacate the Arbitration Decision on
the ground that Arbitrator Cole should have delayed the resolution of Plaintiff’s claims any
further.
G. Manifest Disregard of the Law
“A litigant seeking to vacate an arbitration award based on alleged manifest disregard of
the law bears a heavy burden, as awards are vacated on grounds of manifest disregard only in
those exceedingly rare instances where some egregious impropriety on the part of the arbitrator
is apparent.” T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329, 339 (2d Cir.
2010) (citation, alteration, and internal quotation marks omitted). A court may vacate an arbitral
award on the ground that the arbitrators manifestly disregarded the applicable substantive law
“only if the court finds both that (1) the arbitrators knew of a governing legal principle yet

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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.” Zurich Am., 811 F.3d at 589 (internal
quotation marks omitted). Even if a court disagrees with an arbitrator’s determination, “the
award should be enforced . . . if there is a barely colorable justification for the outcome reached.”
T.Co Metals, 592 F.3d at 339 (emphasis and internal quotation marks omitted).
The Court reads the Arbitration Decision to dismiss Plaintiff’s claims for failure to
prosecute. The Second Circuit has noted “that dismissal for failure to prosecute is a harsh
remedy to be utilized only in extreme situations.” U.S. ex rel. Drake v. Norden Sys., Inc., 375
F.3d 248, 254 (2d Cir. 2004) (internal quotation marks omitted). Courts generally consider five
factors to determine whether dismissal is appropriate:
(1) the plaintiff’s failure to prosecute caused a delay of significant duration; (2)
plaintiff was given notice that further delay would result in dismissal; (3) defendant
was likely to be prejudiced by further delay; (4) the need to alleviate court calendar
congestion was carefully balanced against plaintiff’s right to an opportunity for a
day in court; and (5) the trial court adequately assessed the efficacy of lesser
sanctions.
Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (internal quotation marks omitted).
Arbitrator Cole discussed these factors and determined that dismissal was warranted because
Plaintiff sought numerous extension requests and failed to comply with her discovery
obligations, (see Arbitration Decision 14–15), despite the fact that Plaintiff was twice warned
that she must comply with her discovery obligations, (see id. at 5–6). Indeed, Plaintiff was first
notified that she had not fulfilled her discovery obligations in December 2015, (see id. at 5), but
never attempted to remedy her noncompliance. Plaintiff’s noncompliance is particularly
worrisome because she asserted an ADA claim against Defendants, but declined to execute the
HIPPA authorizations Defendants requested. A threshold question under the ADA is whether
Plaintiff is disabled. Defendants were certainly within their rights to seek medical
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documentation to verify Plaintiffs claim that she is disabled . But, because of Plaintiffs
consistent refusal to provide this information, Defendants could not defend against Plaintiffs
claims . See Butler v. Burroughs Wellcome, Inc., 920 F. Supp. 90, 92 (E.D.N.C. 1996) (" In an
action under the ADA, a plaintiffs medical history is relevant in its entirety. It is impossible to
answer the most basic questions, such as whether the plaintiff was generally foreclosed from
similar employment by reasons of a major life activity impairment, or otherwise qualified given
a reasonable accommodation, or what a reasonable accommodation would have been, without
full and complete access to the plaintiffs medical records."); see also Gross v. Gen. Motors

Corp., 252 F.R.D. 693 , 696 (D. Kan. 2008) (holding that the defendant was prejudiced by the
plaintiffs refusal to turn over medical records because the medical records were "essential" to
the defendant ' s defense and relevant to the plaintiffs ADA claim), aff'd, 441 F. App ' x 562 (I Oth
Cir. 20 II) . The Court therefore concludes that Arbitrator Cole had a " colorable justification for
the outcome reached ." T. Co Metals , 592 F.3d at 339 (emphasis and internal quotation marks
omitted) . Accordingly, the Court declines to vacate the Arbitration Decision on this basis.
I II. Conclusion
For the foregoing reasons, the Court denies Plaintiff's Motion To Vacate the Arbitration
Decision and grants Defendants ' Motion To Confirm the Arbitration Decision. The Clerk of
Court is respectfull y directed to terminate the pending motion, (Dkt. No. 86), and to close the
case.
SO ORDERED .
Dated: Aprii J=f, 2017
White Plains, New York

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