Bowers v. Northern Two Cayes Company Limited et al

Filing 42

ORDER denying Pltf's 37 "Motion to Remand to Arbitrator for Clarification, Extension of Injunctive Relief, and Ruling that Arbitration in Binding. Signed by District Judge Martin Reidinger on 1/30/17. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:15-cv-00029-MR-DLH

RAYMOND V. BOWERS,

)
)
Plaintiff,
)
)
vs.
)
)
NORTHERN TWO CAYES
)
COMPANY LIMITED and
)
LIGHTHOUSE REEF RESORT )
LTD.,
)
)
Defendants.
)
___________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s “Motion for
Remand to Arbitrator for Clarification, Extension of Injunctive Relief, and
Ruling that Arbitration in Binding.” [Doc. 37]. Defendants have responded to
Plaintiff’s Motion [Doc. 40], and the Plaintiff has replied thereto. [Doc. 41].
BACKGROUND
On March 15, 2016, this Court entered an Order compelling arbitration
of this matter pursuant to the arbitration provision set forth in the parties’
Listing Contract. [Doc. 29]. Thereafter, the parties selected Gary S. Hemric
to be the arbitrator and agreed to use the Commercial Rules of the American
Arbitration Association to govern the arbitration proceeding. According to

the parties, Arbitrator Hemric conducted a three-day arbitration hearing
September 14-16, 2016. [Docs. 37 at 1; 40 at 2]. Further, according to the
parties, Arbitrator Hemric issued an Opinion and Award on October 13,
2016.1 [Id.].

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Even though the parties agree that the arbitrator issued his Opinion and Award on
October 13, 2016, the story does not end there. According to the Defendants:
The next day, on October 14, 2016, Plaintiff requested that the arbitrator clarify three
points in the arbitrator’s award. … The arbitrator responded that same day to clarify
those points. … The arbitrator later added that the clarifications in his email should
be considered an integral part of the Opinion and Award. … On October 20, 2016,
counsel for Defendants emailed the arbitrator to confirm counsel’s interpretation of
a portion of the Opinion and Award. The arbitrator confirmed counsel’s interpretation
on October 24, 2016. … On October 31, 2016, Plaintiff filed a Motion for Clarification
with the arbitrator, including a brief and a proposed “clarification supplement.” …
The arbitrator requested counsel for Defendants to reply to Plaintiff’s motion. Before
counsel could respond, the arbitrator emailed Plaintiff and Defendants’ counsel and
indicated that he was not inclined to make the kind of revisions to the Opinion and
Award that Plaintiff was requesting. … On November 10, 2016, counsel for
Defendants sent an email response to the arbitrator concurring with the arbitrator’s
view that Rule 50 of the Commercial Rules of the American Arbitration Association
is limited and that Plaintiff was seeking substantive modifications to the Opinion and
Award. …. On November 11, 2016, the arbitrator issued his determination that
Plaintiff’s “Motion for Clarification seeks modifications/additions to the Opinion &
Award that go far beyond what the Commercial Rules [of the AAA] contemplate, and
therefore must be denied in its entirety.” The arbitrator indicated this was his final
decision on the matter. … Plaintiff sent two subsequent emails to the arbitrator on
November 11, 2016 to which the arbitrator responded by email that if either of the
parties wanted his clarifications of October 14 and 26, 2016 to be memorialized in
writing, he would accommodate that desire. … On November 22, 2016, Plaintiff sent
two emails to the arbitrator, the first one acknowledging the arbitrator’s willingness
to memorialize his previous clarification in writing and asking him to reconsider his
decision on Plaintiff’s Motion for Clarification. … Plaintiff then sent a second
November 22, 2016 email to the arbitrator. … On November 30, 2016, Plaintiff sent
yet another email to the arbitrator asking for a response to his request for
clarification. … Later that day, the arbitrator responded that his position had not
changed with regard to Plaintiff’s Motion for Clarification. … On December 16, 2016,
Plaintiff filed the present Motion.
[Doc. 40 at 2-4 (footnote omitted, formatting condensed)].
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The Plaintiff’s present motion requests that the Court remand Arbitrator
Hemric’s Opinion and Award for: (1) clarification; (2) an extension of the
injunctive relief previously imposed; and (3) an explicit determination that the
arbitration is binding on the parties. [Doc. 37]. The Defendants oppose the
Plaintiff’s motion asserting that: (1) the arbitration Opinion and Award is
clear; (2) the arbitration proceeding was non-binding; and (3) the parties
should proceed to litigate the matter in court. [Doc. 40 at 2].
DISCUSSION
The Plaintiff asks the Court to remand the arbitrator’s Opinion and
Award for further modifications. According to the Plaintiff, “the main thrust”
of his motion “is to request that the court remand the Arbitrator's O&A for
major clarifications and order clear enforcement measures.” [Doc. 37 at 2].
The impediment to the relief requested by the Plaintiff, however, is that the
arbitrator’s Opinion and Award is not presently before the Court.
The framework established by the FAA is clear. Until a party applies
to a court for the confirmation of an arbitration award, and serves such
application (to include a complete copy of the arbitrator’s award) upon the
adverse party in conformity with section 9 of the FAA, no court is able to
adjudicate any interests of (or potential contentions by) the adverse party
reflected in such award. See 9 U.S.C. § 9 (“Notice of the application shall
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be served upon the adverse party, and thereupon the court shall have
jurisdiction of such party as though he had appeared generally in the
proceeding.”). Plaintiff’s citation to section 11 of the FAA regarding the
Court’s ability to modify or correct an award is inapposite. [Doc. 37 at 3]. A
court can take no action upon an arbitrator’s award without such award first
being served upon the adverse party and presented to the court for
confirmation pursuant to section 9 of FAA. As no such motion is presently
before the Court, there exists no basis on which the Court can order remand.2
Accordingly, the Plaintiff’s motion to remand the arbitrator’s Opinion and
Award will be denied.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s “Motion for Remand to
Arbitrator for Clarification, Extension of Injunctive Relief, and Ruling that
Arbitration in Binding” [Doc. 37] is DENIED.
IT IS SO ORDERED.
Signed: January 30, 2017

Since the arbitrator’s award is not presently before the Court, the Court expresses no
opinion about the propriety of the arbitrator’s award, including whether the award is
binding on the parties such that “a judgment of the court shall be entered upon the award
made pursuant to the arbitration[.]” 9 U.S.C. § 9.
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