Laschkewitsch v. Transamerica Life Insurance Company
ORDER denying 47 Motion for Reconsideration. Signed by Chief Judge James C. Dever III on 7/17/2017. Sent to John Laschkewitsch at 1933 Ashridge Drive Fayetteville, NC 28304 via US Mail. (Briggeman, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
TRANSAMERICA LIFE INSURANCE
John Laschkewitsch ("Laschkewitsch" or "plaintiff') is a familiar litigant.
Laschkewitsch v. Legal & Gen. Am.. Inc., No. 5:15-CV-251-D,2017 WL 1102619, at *1 (E.D.N.C.
Mar. 23, 2017) (unpublished). In: this case, on September 21, 2016, this court denied as baseless
Laschkewitsch' s motion to modify or correct Transamerica Life Insurance Company's
(''Transamerica" or "defendant'') arbitration award of $540,723.76 [D.E. 42] and his motion to
vacate the arbitration award and to dismiss Transamerica's petition for confirmation [D.E. 43]. See
Order [D .E. 44]. On October 19, 2016, Laschkewitsch moved for reconsideration ofthat order under
Ru1es 52(b) and 59(e) of the Federal Ru1es of Civil Procedure [D.E. 47]. On November 3, 2016,
Transamerica responded in opposition [D.E. 49]. On November 23,2016, Laschkewitsch replied
[D.E. 51]. As explained below, the court denies Laschkewitsch's motion for reconsideration.
Laschkewitsch bases his motion on both Ru1es 52(b) and 59(e). Ru1e 52, however, applies
only in "action[s] tried on thefactswithoutajuryorwithanadvisoryjury." Fed. R. Civ. P. 52(a)(1);
see O'Hara v. Comptroller ofMd., No. TDC-14-4044, 2016 WL 2760337, at *1 (D. Md. May 12,
2016) (unpublished), affd, 670 F. App'x 777 (4th Cir. 2016) (per curiam) (unpublished). That did
not happen here. Thus, the court denies relief under Ru1e 52(b).
As for Rule 59(e), "[i]n general, reconsideration of a judgment after its entry is an
extraordinary remedy which should be used sparingly." Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148
F .3d 396, 403 (4th Cir. 1998) (quotation omitted). A Rule 59(e) motion may thus be granted in only
three situations: "(1) to accommodate an intervening change in controlling law; (2) to account for
new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest
injustice." Mayfield v. Nat'l Ass'n for Stock Car Auto Racing. Inc., 674 F.3d 369, 378 (4th Cir.
2012) (quotation omitted); see Zinkand v. BroMl, 478 F.3d 634, 637 (4th Cir. 2007). Rule 59(e)
motions may not be used ''to raise arguments which could have been raised prior to the issuance of
the judgment, nor may they be used to argue a case under a novel legal theory that the party had the
ability to address in the first instance." Pac. Ins. Co., 148 F.3d at 403.
Laschkewitsch argues that this court must grant his motion to reconsider in order ''to correct
clear errors and prevent manifest injustice and manifest errors in the law and in fact regarding the
arbitrator's award and this court's confirmation." [D.E. 51] 2. This argument fails if the court's
decision under reconsideration ''was factually supported and legally justified." Hutchinson v. Staton,
994 F .2d 1076, 1081-82 (4th Cir. 1993). Mere disagreement with the court's decision is not a proper
basis for a Rule 59(e) motion. ld. at 1082. Nor can a party invoke Rule 59(e) to "relitigate old
matters." Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quotation omitted); see Pac.
Ins. Co., 148 F.3d at 403. "Consequently, a Rule 59(e) motion is not intended to allow for
reargument of the very issues that the court has previously decided and is not intended to give an
unhappy litigant one additional chance to sway the judge." Melvin v. Social Security Admin., No.
5:14-CV-170-F, 2016 WL 7383542, at *1 (E.D.N.C. Sept. 26, 2016) (unpublished) (alterations,
citations, and quotations omitted), aff'd, No. 16-2248, 2017 WL 1506644 (4th Cir. Apr. 27, 2017)
(per curiam) (unpublished); see Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006);
Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001); Fox v. Am. Airlines. Inc., 295
F. Supp. 2d 56, 60 (D.D.C. 2003), aff'd, 389 F.3d 1291 (D.C. Cir. 2004).
In his Rule 59(e) motion Laschk:ewitsch simply disagrees with this court's order dismissing
his motion to modify or correct the arbitration award and his motion to vacate that award. In doing
so Laschkewitsch reasserts the same meritless legal arguments that this court previously rejected.
Compare [D.E. 42, 43], with [D.E. 48]. The arguments have not improved with age and do not
warrant reconsideration. Accordingly, the court denies his motion.
Alternatively, Laschk:ewitsch's motion fails because this court's decision "was factually
supported and legally justified." Hutchinso!l, 994 F.2d at 1081-82. Laschkewitsch's motions
challenged the arbitrator's decision in favor of Transamerica. "[T]he scope of judicial review for
an arbitrator's decision is among the narrowest known at law because to allow full scrutiny of such
awards would frustrate the purpose ofhaving arbitration at all-the quick resolution of disputes and
the avoidance of the expense and delay associated with litigation." MCI Constructors. LLC v. City
of Greensboro, 610 F.3d 849, 857 (4th Cir. 2010) (quotation omitted). "[I]n reviewing such an
award, a district or appellate court is limited to determine whether the arbitrators did the job they
were told to do--not whether they did it well, or correctly, or reasonably, but simply whether they
did it." ThreeS Del.. Inc. v. DataQuick Info. Sys .• Inc., 492 F.3d 520, 527 (4th Cir. 2007) (quotation
omitted). "An arbitration award is enforceable even if the award resulted from a misinterpretation
of law, faulty legal reasoning or erroneous legal conclusion, and may only be reversed when
arbitrators understand and correctly state the law, but proceed to disregard the same." Upshur Coals
Cor;p. v. United Mine Workers of Am.. Dist. 31, 933 F.2d 225,229 (4th Cir. 1991) (citations and
In seeking vacatur Laschkewitsch bore "the heavy burden of showing one of the grounds
specified in the Federal Arbitration Act (the 'FAA') or one of certain limited common law grounds."
MCI Constructors. LLC, 610 F .3d at 857; see Patten v. Signator Ins. Agency. Inc., 441 F .3d 230, 234
(4th Cir. 2006). Under the FAA, a court may vacate an arbitration award only on one of the
(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
(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 definite award upon the subject matter submitted was not made.
9 U.S.C. § lO(a); see MCI Constructors. LLC, 610 F.3d at 857. As for the common law, "[t]he
permissible common law grounds for vacating such an award include those circumstances where an
award fails to draw its essence from the contract, or the award evidences a manifest disregard of the
law." MCI Constructors. LLC, 610 F.3d at 857 (quotations omitted); see Patten, 441 F.3d at 234.
Laschkewitsch argues that no enforceable arbitration agreement existed. This court has twice
concluded otherwise and did not clearly err in doing so. See [D.E. 20, 31]. As for Laschkewitsch' s
arguments concerning the recognized grounds for vacating an arbitrator's award, the court has
applied the relevant legal standards and concludes that Laschkewitsch failed to carry his burden of
proving that the award was procured by corruption, fraud, or undue means, 1 that the arbitrator
demonstrated evident impartiality or corruption,2 that the arbitrator engaged in misconduct or
improperly refused to hear evidence,3 that the arbitrator exceeded the scope of his powers or
imperfectly executed them such that a mutual, final, and definite award upon the subject matter
See MCI Constructors. LLC, 610 F.3d at 858-59; ThreeS Del.. Inc., 492 F.3d at 529-30.
See ThreeS Del.. Inc., 492 F.3d at 530; ANR Coal Co. v. Cogentrix ofN.C.. Inc., 173 F.3d
493,500-01 (4th Cir. 1999); Consol. Coal Co. v. Locall643. United Mine Workers ofAm., 48 F.3d
125, 129 (4th Cir. 1995); Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 991 F.2d 141, 146 ·
(4th Cir. 1993).
See United Paperworkers Int'l Union. AFL-CIO v. Misco. Inc., 484 U.S. 29,40-41 (1987);
ThreeS Del.. Inc., 492 F.3d at 530-31; Int'l Union. United Mine Workers of Am. v. Marrowbone
Dev. Co., 232 F.3d 383, 389-90 (4th Cir. 2000).
submitted was not made, 4 that the award fails to draw its essence from the contract, 5 or that the award
evidences a manifest disregard for the law. 6 Thus, Laschk:ewitsch fails to show that reconsideration
of this court's order denying his motions challenging the arbitration award is necessary ''to correct
a clear error oflaw or prevent manifest injustice." Rather, the court's order denying the motions
''was factually supported and legally justified." Hutchinso!l, 994 F .2d at 1081-82.
In sum, the court DENIES Laschk:ewitsch's motion [D.E. 47].
SOORDERED. This t1dayofJuly2017.
See Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064,2068-71 (2013); Jones v. Dancel,
792F.3d395,405 (4thCir.},cert. denied, 136 S. Ct. 591 (2015);ApexPlumbingSuwly.Inc. v. U.S.
Supply Co., 142 F.3d 188, 193 (4th Cir. 1998).
SeeMCI Constructors. LLC, 610 F.3dat 861--62; Patten, 441 F.3dat235; Apex Plumbing.
Inc., 142 F.3d at 193 n.5; United Food & Commercial Workers. Local400 v. Marval Poultry Co.,
876 F.2d 346, 351 (4th Cir. 1989).
See Wachovia Sec.. LLC v. Brand, 671 F.3d 472, 480-81 (4th Cir. 2012); Long John
Silver's Rests .• Inc. v. Cole, 514 F.3d 345, 349-50 (4th Cir. 2008); Patte!!, 441 F.3d at 235.
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