Johnson v Drake

Filing 39

MEMORANDUM OPINION AND ORDER: The court determines that the 30 findings and conclusions of the magistrate judge are correct, accepts them as those of the court as herein modified, and overrules the objections asserted by Petitioner and Responden t to the Report. Accordingly, the court denies without prejudice Defendants Motion to Dismiss (Doc. 8); denies Defendant's Alternative Motion to Transfer Venue (Doc. 8); grants Petitioner's request for additional time to effect service of process on Respondent (Doc. 36); and directs Petitioner to effect service on Respondent of an amended application to confirm the arbitration award as set forth below and in accordance with 9 U.S.C. § 9 by 5/5/2017, or show good cause in wri ting by that date for the failure to effect service within the time required by this order. To avoid the confusion created by Petitioner's filing of a separate application and motion to confirm the arbitration award, the court also denies with out prejudice Steven M. Johnson's Application for Order Confirming Domestic Arbitration Award (Doc. 1); denies without prejudice Steven M. Johnson's Motion to Confirm Domestic Arbitration Award (Doc. 3); and directs Petitioner to file a single amended application to confirm the arbitration award by 4/10/2017. (Ordered by Judge Sam A Lindsay on 3/30/2017) (ykp)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STEVEN M. JOHNSON,
Petitioner,
v.
WILLIAM DRAKE,
Respondent.

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Civil Action No. 3:16-CV-1993-L

MEMORANDUM OPINION AND ORDER
Before the court are Steven M. Johnson’s Application for Order Confirming Domestic
Arbitration Award (Doc. 1), filed July 7, 2016; Steven M. Johnson’s Motion to Confirm Domestic
Arbitration Award (Doc. 3), filed August 18, 2016; and Respondent’s Motion to Dismiss or,
Alternatively, to Transfer Venue (Doc. 8), filed August 18, 2106. Also before the court is the
Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc.
30), recommending that the court grant Respondent’s Motion to Dismiss (Doc. 8) and dismiss
without prejudice this action for lack of jurisdiction as a result of Petitioner’s failure to effect service
on Respondent in accordance with 9 U.S.C. § 9; the parties’ objections and related briefs to the
Report, and Petitioner’s request for leave for additional time to effect service of process on
Respondent (Doc. 36).
For the reasons herein explained, the court, after conducting a de novo review of the portions
of the Report to which objections was made, accepts the Report as herein modified;1 overrules
1

Instead of granting Defendant’s motion to dismiss for insufficient service as recommended by the magistrate
judge, the court will give Petitioner additional time as requested to effect service on Respondent in accordance with 9
U.S.C. § 9, as the applicability of the manner of service under this section of the Federal Arbitration Act (“FAA”) was
raised sua sponte by the magistrate judge, the defect is curable, and the court concludes that Respondent will not suffer
any legal prejudice or undue delay.
Memorandum Opinion and Order – Page 1

Petitioner’s and Respondent’s objections to the Report; grants Petitioner’s request for additional
time to effect service of process on Respondent (Doc. 36); denies without prejudice Respondent’s
Motion to Dismiss (Doc. 8); and denies Respondent’s Alternative Motion to Transfer Venue (Doc.
8). To avoid the confusion created by Petitioner’s filing of a separate application and motion to
confirm the arbitration award, the court denies without prejudice Steven M. Johnson’s Application
for Order Confirming Domestic Arbitration Award (Doc. 1); denies without prejudice Steven M.
Johnson’s Motion to Confirm Domestic Arbitration Award (Doc. 3); directs Petitioner to file a
single amended application to confirm the arbitration award by April 15, 2017, which must be
served on Respondent in accordance with this order.
I.

Factual and Procedural Background
Petitioner Steven M. Johnson (“Petitioner” or “Johnson”) brought this proceeding on July

7, 2016, to confirm a final arbitration award in the amount of $353,214.97 that was entered in his
favor on July 7, 2016, against Respondent William Drake (“Respondent” or “Drake”). Respondent,
who is a resident of Minnesota, was implanted with defective DePuy ASR hip devices in 2007.
Respondent retained Petitioner’s law firm to represent him in Multi-District Litigation (“MDL”)
pending in Ohio. The contingency fee agreement executed between Petitioner and Respondent
contains an arbitration clause. Respondent subsequently retained another attorney and terminated
Petitioner’s representation of him in the MDL. Johnson sued for breach of the parties’ contingency
fee agreement and obtained an arbitration award in his favor that is the subject of this proceeding and
brought pursuant to the FAA.
On August 18, 2016, Drake moved to dismiss the action “for lack of personal jurisdiction,
res judicata, Rule 41, improper venue, and improper service; [a]nd, in the alternative, [moved] to
Memorandum Opinion and Order – Page 2

transfer venue.” Resp’t’s Mot. 8. Petitioner’s application to confirm the arbitration award and
Respondent’s motion to dismiss were referred to the magistrate judge for findings and
recommendation. On the same date, a few hours before Respondent filed his motion to dismiss,
Petitioner filed a “Motion to Confirm Domestic Arbitration Award” (Doc. 7), although he had
previously filed an application to confirm the arbitration award on July 7, 2016. It is not entirely
clear whether the motion to confirm filed by Petitioner relies on different or additional grounds for
confirming the arbitration award. No explanation was provided by Petitioner for filing the motion
to confirm in addition to the application to confirm the arbitration award. Because of the confusion
caused by Petitioner filing an application and motion to confirm the arbitration award, only
Petitioner’s initial application to confirm the arbitration award was referred to the magistrate judge;
however, the same reasoning in the Report and this order applies to both such that there is no need
for a separate order to address Petitioner’s later-filed motion to confirm the arbitration award.
On February 9, 2017, United States Magistrate Judge Paul D. Stickney entered his Report,
recommending that the court grant Respondent’s Motion to Dismiss and dismiss without prejudice
Petitioner’s application and this proceeding for lack of personal jurisdiction over Respondent as a
result of Petitioner’s failure to comply with section 9 of the FAA, which requires service of process
on nonresidents such as Respondent to be performed by “the marshal of any district within which
the adverse party may be found.” Petitioner and Respondent both filed objections to the Report on
February 23, 2017. On March 9, 2017, Respondent filed a response to Petitioner’s objections.
II.

Respondent’s Objections
Respondent objects to the magistrate judge’s findings and conclusions that: (1) jurisdiction

or venue is proper in this district; and (2) Respondent refused to honor the contingency fee

Memorandum Opinion and Order – Page 3

agreement. The court overrules Respondent’s objections, as the court concludes that the magistrate
judge correctly found that the arbitration award was entered in Dallas, Texas; the parties’ arbitration
agreement does not specify a court for purposes of confirming any arbitration award entered; and
thus, Petitioner was entitled to file his application to confirm the arbitration award in the Northern
District of Texas, Dallas Division because section 9 of the FAA specifically provides that, “if no
court is specified in the [arbitration] agreement of the parties, then such application [to confirm the
arbitration award] may be made to the United States court in and for the district within which such
award was made.” Report 5-6 (quoting 9 U.S.C. § 9). Section 9 further provides, “Notice of the
application shall 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.” Id. Thus, the court will have
jurisdiction over Respondent in this proceeding upon service of Petitioner’s application in
accordance with 9 U.S.C. § 9, notwithstanding Respondent’s arguments to the contrary. Moreover,
the court concludes that the defect in Petitioner’s attempt at effecting service on Respondent is
curable, and the other issues raised by Respondent are irrelevant to whether this court has jurisdiction
over Respondent for purposes of confirming the arbitration award under the FAA.
III.

Petitioner’s Objections
In his objections to the Report, Petitioner contends that service of process on Respondent was

sufficient and Respondent’s defense of insufficient service under Rule 12(b)(5) was waived.
Alternatively, Petitioner requests additional time to serve Respondent in accordance with 9 U.S.C.
§ 9 instead of dismissing the action as proposed by the magistrate judge. For the reasons that follow,
the court concludes that the magistrate judge’s analysis regarding the applicability of service of
process under 9 U.S.C. § 9, as it applies to this case, is correct. Accordingly, Petitioner’s objections
Memorandum Opinion and Order – Page 4

to the contrary are overruled; however, because the court’s determination regarding service of
process under 9 U.S.C. § 9 appears to conflict with a prior opinion of the court, the court addresses
this issue below, which was raised in Petitioner’s objections. Petitioner’s objection and argument
regarding the applicability of Rule 12(b)(5) and Defendant’s waiver of the defense of insufficient
service under Rule 12(b)(5) similarly misses the mark and is overruled for the reasons herein
explained.
A.

Applicability of the Federal Rules of Civil Procedure

As noted, Johnson objects to the magistrate judge’s “failure to find waiver” of any defense
under Rule 12(b) based on insufficient service, to the extent based on failure to effect service in
accordance with 9 U.S.C. § 9. Pet’r’s Obj. 3. Drake, on the other hand, argues that the magistrate
judge did not err in not finding waiver because he “clearly objected to the improper service by
[Petitioner]” in his motion to dismiss. Resp’t’s Resp. 5.
The likely reason that the magistrate judge did not “find waiver” or address Petitioner’s
waiver argument is because it was not raised in response to Respondent’s motion to dismiss. In
briefing the motion to dismiss, both parties conflated the Federal Rules of Civil Procedure that apply
to civil actions and pleadings with those that apply to applications to confirm arbitration awards
under the FAA. As a result, the arguments presented to the magistrate judge for findings and
recommendation were not on point. Despite the magistrate judge’s clarification regarding the
applicability of the FAA, the parties continue to argue incorrectly in their objections and briefs that
the Federal Rules of Civil Procedure apply.
Under the FAA, applications to confirm or vacate arbitration awards are treated as motions,
not a pleading initiating an action under the Federal Rules of Civil Procedure. See 9 U.S.C. § 6
Memorandum Opinion and Order – Page 5

(“Any application to the court hereunder shall be made and heard in the manner provided by law for
the making and hearing of motions, except as otherwise herein expressly provided by law for the
making and hearing of motions.”); Baylor Health Care Sys. v. Equitable Plan Servs., Inc., 955 F.
Supp. 2d 678, 688 n.1 (N.D. Tex. 2013). As a result, federal courts in this district and other
jurisdictions have distinguished between motions to confirm or vacate arbitration awards and
pleadings that initiate federal civil actions and held that the Federal Rules of Civil Procedure that
apply to the filing of civil actions and pleadings in federal actions do not apply to motions to confirm
or vacate arbitration awards. See, e.g., Productos Mercantiles E Industriales, S.A. v. Faberge USA,
Inc., 23 F.3d 41, 46 (2d Cir. 1994) (concluding that Rule 12(b) does not apply to motions to vacate
arbitration awards); Health Servs. Mgmt. Corp. v. Hughes, 975 F.2d 1253, 1258 (7th Cir. 1992)
(reasoning that notice pleading rules do not apply to a motion to vacate arbitration award; rather, an
application under the FAA to vacate an arbitration award is made and heard in the manner provided
by law for making and hearing of motions); O.R. Sec., Inc. v. Prof. Planning Assocs., Inc., 857 F.2d
742, 748 (11th Cir. 1988) (concluding that Rule 8’s notice pleading rules are inapplicable to
proceedings to vacate an arbitration award because relief must be sought in the form of a motion);
HCC Aviation Ins. Grp., Inc. v. Employers Reinsurance Corp., No. 3:05-CV-744-BH, 2008 WL
850419, at *4 (N.D. Tex. Mar. 21, 2008) (“Since Petitioners’ April 15, 2005 filing [application under
the FAA] with the District Court is a motion and not a pleading, it is not subject to the specific
pleading requirements of Rule 9(g).”); Garber v. Sir Speedy, Inc., No. 3:96-CV-1089-P, 1996 WL
734947, at *4 (N.D. Tex. Dec. 11, 1996) (“Plaintiffs’ complaint to vacate the arbitration award is
procedurally improper. The [FAA] requires an application to vacate an award to be [set forth in a
motion.]”) (citing 9 U.S.C. 6)).

Memorandum Opinion and Order – Page 6

As explained by former United States District Judge Jorge A. Solis in Garber, because
section 6 of the FAA requires applications to vacate or confirm an arbitration award to be “made and
heard in the manner provided by law for the making and hearing of motions,” an application under
this section must comply with Federal Rule of Civil Procedure 7(b), which applies to the filing of
motions and other papers and provides that “[a] request for a court order must be made by motion
. . . [shall] be in writing . . . state with particularity the grounds for seeking the order; and . . . state
the relief sought.” See id. (citing O.R. Securities, Inc., 857 F.2d at 745). The reason for requiring
applications under the FAA to be filed and heard as motions rather than complaints is based on
FAA’s fundamental policy for expedited judicial review of arbitration awards to prevent the losing
party from filing a new civil action in federal court to relitigate the matters arbitrated. Garber, 1996
WL 734947, at *4 (citing Booth v. Hume Pub. Inc., 902 F.2d 925, 932 (11th Cir. 1990)).
Accordingly, because applications to confirm arbitration awards are motions, the Federal
Rules of Civil Procedure and this court’s Local Civil Rules applicable to motions and motion
practice apply but not the federal rules for initiating civil actions and filing pleadings in civil
actions.2 Since Petitioner’s July 7, 2016 Application for Order Confirming Domestic Arbitration
Award and August 18, 2016 Motion to Confirm Domestic Arbitration Award (Doc. 3) are treated
as motions under the FAA, and not pleadings, the court concludes that they are not subject to Rule
12(b), which sets forth the requirements for responsive pleadings and the assertion of defenses in
response to a complaint, or related authority regarding the waiver of defenses under Rule 12(b).

2

In addition, section 13 of the FAA requires that certain “papers” be filed in conjunction with an application
to confirm, modify, or correct an arbitration award.

Memorandum Opinion and Order – Page 7

Thus, the parties’ arguments for and against waiver with respect to Federal Rule of Civil Procedure
12(b) are not relevant and quite beside the point.
B.

Service Under Section 9 of the FAA

Although the FAA is not an independent basis for conferring subject matter jurisdiction,
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 n.32 (1983), it does provide
a means for obtaining personal jurisdiction over a party to an arbitration in a subsequent proceeding
to confirm an arbitration award. See 9 U.S.C. § 9. Regarding service of an application to confirm
an arbitration award governed by the FAA, section 9 of the FAA states:
Notice of the application [to confirm arbitration] shall 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. If the adverse party is a resident of the district
within which the award was made, such service shall be made upon the adverse party
or his attorney as prescribed by law for service of notice of motion in an action in the
same court. If the adverse party shall be a nonresident, then the notice of the
application shall be served by the marshal of any district within which the adverse
party may be found in like manner as other process of the court.
Id. The language in this statute regarding service on a nonresident governs the service of Petitioner’s
application to confirm the arbitration award in this case because Respondent is a nonresident, and
the plain language of 9 U.S.C. § 9 makes clear that service of process on nonresidents must be
performed by “the marshal of any district within which the adverse party may be found.” Id.
Petitioner acknowledges that his attempts at serving Respondent were made via a private process
server, not a marshal in the district where Defendant, a resident of Minnesota, can be found. Thus,
the magistrate judge correctly concluded that service of process in this case was insufficient.
Petitioner correctly notes that this court, in May Financial Corporation v. Granger Meadows,
Ltd., Case No. 3:02-CV-2482-L, 2003 WL 21246130 (N.D. Tex. Mar. 31, 2003), previously

Memorandum Opinion and Order – Page 8

concluded that compliance with section 9’s requirement regarding service on nonresidents by a
United States Marshal was not necessary. In doing so, the court accepted the following findings and
recommendation by the magistrate judge, to which no objection was made: “On December 9, 2002,
a return of service was filed showing that service was personally made by a private process server
on Gary Thomas’ attorney. Therefore, the prerequisite to jurisdiction in § 9—that notice of the
application shall be served upon Defendant—has been established.” Id. at *2. In a footnote, the
magistrate judge explained her conclusion that the court had personal jurisdiction over the defendant
notwithstanding the plaintiff’s failure to comply with section 9 of the FAA:
Although Plaintiff’s application was served by a private process server, and § 9
requires that “the application shall be served by the marshal of any district within
which the adverse party may be found,” § 9 “cannot be taken as the proper standard
for service of process . . . because it cannot account for the subsequent abandonment
of United States marshals as routine process servers.” Matter of Arbitration Between
Trans Chemical Ltd. and China Nat. Machinery Import and Export Corp., 978 F.
Supp. 266, 300 & n.138 (S.D. Tex. 1997). Thus, under Federal Rule of Civil
Procedure 4(h)(1), Defendant was properly served.
Id. n.1. In addition, Petitioner relies on Trans Chemical Limited, which was cited by the magistrate
judge in May Financial Corporation, and notes that Trans Chemical Limited was affirmed by the
Fifth Circuit without further analysis. Petitioner also cites other cases by federal district courts
outside of the Fifth Circuit in which courts have concluded that the requirement of service by a
United States Marshal is an outdated anachronism or one that is no longer necessary to satisfy 9
U.S.C. § 9.

Memorandum Opinion and Order – Page 9

The Fifth Circuit has not spoken on this issue. After revisiting the issue and considering it
more carefully,3 the court concludes that the basis for the magistrate judge’s reasoning in May
Financial Corporation and reliance on Trans Chemical Limited in concluding that the court had
personal jurisdiction was flawed for two reasons. First, unlike May Financial Corporation and this
case, Trans Chemical Limited involved service on a foreign party outside of the United States. Trans
Chemical Ltd., 978 F. Supp. at 297-98. Cases involving service on foreign parties outside of the
United States are distinguishable because, as aptly explained by the court in PTA-FLA, Incorporated
v. ZTE USA, Incorporated, No. 3:11-CV-510-J-32JRK, 2015 WL 12819186 (M.D. Fla. Aug. 5,
2015), section 9’s language requiring service by a marshal is limited to service within the United
States:
§ 9 (and the identical language on service in § 12) arguably does not include any
method for service on foreign parties at all since they “will not necessarily be found
in any district.” Service on foreign parties pursuant to Rule 4 may indeed be
necessary since service on them by marshal within a district of the United States is
impossible. But that does not require jettisoning service by marshal on parties that
can be found in the United States.
Id. at *7 (citing Technologists, Inc. v. Mir’s Ltd., 725 F. Supp. 2d 120, 125-27 (D.D.C. 2010); and
quoting InterCarbon Berm., Ltd. & Caltex Trading & Transp. Corp., 146 F.R.D. 64, 67 (S.D.N.Y.
1993)) (internal citations omitted).
Second, the court agrees with the following reasoning in PTA-FLA, Inc. that courts cannot
simply disregard the plain language of 9 U.S.C. § 9, even though the requirement of service by a
United States Marshal, rather than some other form of service, may seem like an outdated

3

As previously noted, no objections were asserted to the magistrate judge’s findings and conclusions in May
Financial Corporation. Moreover, the defendant in that case did not file a response to the plaintiff’s application to
confirm the arbitration award or contest the sufficiency of the plaintiff’s service of process.

Memorandum Opinion and Order – Page 10

anachronism or technicality; nor can it interpret the statute in a manner that renders meaningless a
portion of the statute, including the requirement that service on nonresidents be made by a marshal:
The straightforward meaning of this language is that service on nonresidents must be
made via marshal for the court where the award was made to obtain personal
jurisdiction under § 9 of the FAA.
Some courts have interpreted the final clause of § 9, “in like manner as other
process of the court,” to be a reference to Rule 4 and its (relatively) recent allowance
of service by “[a]ny person who is at least 18 years old and not a party . . . .”
Technologists, Inc. v. Mir’s Ltd., 725 F. Supp. 2d 120, 125-27 (D.D.C. 2010); Own
Capital, LLC v. David Smith Autoland, Inc., No. 10-mc-51002, 2010 WL 3623173,
at *2 (E.D. Mich. Sept. 15, 2010); see Fed. R. Civ. P. 4(c)(2). The Court finds that
interpretation inconsistent with the text of the statute. Section 9 does not set up “in
like manner as other process of the court” as an alternative to service by the marshal,
but, instead, as how service may be effectuated by the marshal. Using the clause as
these courts suggest would essentially render meaningless the reference to the
marshal. A more logical understanding of “manner” of service, which is also more
consistent with its definition, would see it as a reference to the provisions of Rule
4(e), (g), and (h) on how service can be completed, not to Rule 4(c)(2) on who can
complete it. The Court adopts this understanding, which gives effect to all the words
in § 9.
....
[W]hile the requirement of service by marshal, as opposed to some other process
server, may seem outdated or a mere technicality, the Court cannot overlook the plain
language of the statute. The Court agrees with the corporate objectors that this
service requirement has not been impliedly repealed by Rule 4. “Repeals by
implication are not favored . . . .” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482
U.S. 437, 442 (1987). “In the absence of some affirmative showing of an intention
to repeal, the only permissible justification for a repeal by implication is when the
earlier and later statutes are irreconcilable.” Morton v. Mancari, 417 U.S. 535, 550
(1974).
The Court agrees with the analysis of the court in Logan & Kanawha Coal
Co. v. Dethrage Coal Sales, LLC that Rule 4 and § 9 are not irreconcilable. 789 F.
Supp. 2d 716, 720-22 (S.D. W. Va. 2011). Even though Rule 4 has reduced the role
of marshals in service of process generally, the duties of the marshals still include
service of process, 28 U.S.C. § 566(c), and service by marshal is still available under
either Rule 4 or Rule 4.1 on service of process other than a summons or subpoena,
Fed. R. Civ. P. 4(c)(3), 4.1(a). Moreover, even if there were a conflict between Rule

Memorandum Opinion and Order – Page 11

4 and § 9, Rule 81 would eliminate the conflict by expressly deferring to the
procedures of § 9 in proceedings relating to arbitration. Fed. R. Civ. P. 81(a)(6)(B)
(“These rules, to the extent applicable, govern proceedings under the following laws,
except as these laws provide other procedures . . . (B) 9 U.S.C., relating to arbitration
. . . .”); see Nu–Best Franchising, Inc. v. Motion Dynamics, Inc., No. 8:05-cv-507-T27TGW, 2006 WL 1428319, at *5 (M.D. Fla. May 17, 2006); also Booth [v. Hume
Publ’g, Inc., 902 F.2d 925, 931 (11th Cir. 1990)].
PTA-FLA, Inc., 2015 WL 12819186, at *7-8.
Moreover, the portion of the opinion quoted from Trans Chemical Limited in May Financial
Corporation and relied on by Petitioner 4 is dicta, as the court’s holding regarding the sufficiency
of service of process and the existence of personal jurisdiction ultimately turned on its determination
that service was sufficient under 28 U.S.C. § 1608(b)(1) of the Foreign Sovereign Immunities Act,
which allows parties to agree upon special arrangements for service, and its alternative determination
that resort to the Federal Rules of Civil Procedure was necessary because service by a marshal under
section 9 was not technically possible with respect to foreign parties outside the United States. Trans
Chemical Ltd., 978 F. Supp. at 299-300.
May Financial Corporation is also distinguishable in that the defendant did not file a
response to the plaintiff’s application to confirm the arbitration award or move to dismiss for lack
of personal jurisdiction based on insufficient service of process under section 9 of the FAA. As a
result, any objection regarding personal service was waived because, unlike subject matter

4

The reasoning in other cases cited and relied upon by Petitioner to support his argument that service by a
marshal in accordance with section 9 is not required fails for the same reasons set forth in this opinion and PTA-FLA,
Incorporated, which cited and discussed a number of federal district cases that have addressed the issue raised by
Petitioner, including the cases cited in Petitioner’s objections. The only case cited in Petitioner’s objections that is not
addressed in PTA-FLA, Incorporated is the unpublished “Memorandum and Order” in 1-800-BoardUp, Inc. v. Quality
Renovations, LLC, No. 4:12-MC-331(CEJ) (E.D. Mo. July 3, 2012) (Doc. 4). This case, however, relies on the same
cases and reasoning rejected by PTA-FLA, Incorporated. Moreover, as in this case, there was no response to the
plaintiff’s application to confirm the arbitration award, and no motion or objection was raised regarding service of
process or personal jurisdiction. Further, none of the authorities from other federal districts cited by Petitioner is binding
on this court.

Memorandum Opinion and Order – Page 12

jurisdiction, personal jurisdiction can be waived. The court, therefore, had personal jurisdiction over
the defendant in May Financial Corporation, even though the court now concludes that the
magistrate judge’s legal basis for finding personal jurisdiction in that case was incorrect.
Further, unlike the defendant in May Financial Corporation, which asserted no objection
whatsoever to personal jurisdiction based on service of process, Respondent did object and moved
to dismiss this action for insufficient service of process under Federal Rule of Civil Procedure
12(b)(5). Thus, while objections to personal jurisdiction generally can be waived, Insurance Corp.
of Ire., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 704 (1982), the court concludes
that Respondent did not waive his objection to the adequacy of service. Though Respondent did not
specifically contend that service of process was insufficient as a result of Petitioner’s failure to
comply with 9 U.S.C. § 9, he did contest whether service of process was proper. Thus, even
assuming as the parties contend that the Federal Rules of Civil Procedure apply to service of process
and objections to insufficient service of process in this proceeding rather than the express language
of 9 U.S.C. § 9 regarding service, the court determines that Respondent did not waive his objection
to adequacy of service. See Garcia v. Cantu, 363 B.R. 503, 508-09 (Bankr. W.D. Tex. 2006)
(footnote omitted).5 The court, therefore, overrules Petitioner’s objections regarding the adequacy

5

The court in Garcia v. Cantu concluded that the debtor’s objection to the sufficiency of service under Rule
12(b)(5) was not waived the objection, although it was “admittedly inartful”:
In reviewing that motion to dismiss, it is evident that the Debtor did not expressly raise, as an additional grounds
for dismissal of the petition, insufficiency of service. Certainly, the motion made no explicit reference to Rule
12(b)(5). However, the body of the motion did at least include allegations that tended to raise a concern
regarding whether the Debtor had in fact actually been served at the locations indicated, and further suggested
that neither of those addresses qualified as places where the Debtor could legitimately have been served. As
a general rule, a pleading is to be evaluated on its substance rather than its form. See Wright & Miller, § 1355
(3d ed. 2004). While admittedly inartful, the Debtor’s Motion does at least generally contest whether service
at these addresses can count as proper service of process. That is sufficient for the court to conclude that the
Debtor did not waive an objection to adequacy of service. Id.

Memorandum Opinion and Order – Page 13

of service on Respondent under Federal Rule of Civil Procedure 4, and the applicability of service
under 9 U.S.C. § 9.
C.

Request for Additional Time to Effect Service

As both parties’ reliance on and arguments regarding the Federal Rules of Civil Procedure
regarding service were incorrect, the magistrate judge sua sponte found and clarified that section 9
of the FAA applies to service in proceedings such as this one, rather than the Federal Rules of Civil
Procedure. Because this issue was raised sua sponte and the failure to effect service in accordance
with section 9 of the FAA is a curable defect, the court will grant Petitioner’s request for additional
time to effect service on Respondent in accordance with the FAA. Further, the court determines that
Respondent will not suffer any legal prejudice or undue delay in proceeding in this manner.
Accordingly, instead of granting Defendant’s motion to dismiss for insufficient service as
recommended by the magistrate judge, the court will deny without prejudice the motion to dismiss
and give Petitioner additional time as requested to effect service on Respondent in accordance with
9 U.S.C. § 9.
IV.

Conclusion
Having reviewed the application to confirm the arbitration award, motion to confirm the

arbitration award, motion to dismiss, briefs, record in this case, and Report, and having conducted
a de novo review of the portions of the Report to which objection was made, the court determines
that the findings and conclusions of the magistrate judge are correct, accepts them as those of the

Garcia, 363 B.R. at 508-09. Based on similar reasoning, the court concludes that Respondent’s motion and objection
in this case were sufficient to avoid waiver of his right to object to the sufficiency of service. Moreover, Petitioner has
the burden of establishing that service on Respondent was sufficient.

Memorandum Opinion and Order – Page 14

court as herein modified, and overrules the objections asserted by Petitioner and Respondent to the
Report. Accordingly, the court denies without prejudice Defendant’s Motion to Dismiss (Doc.
8); denies Defendant’s Alternative Motion to Transfer Venue (Doc. 8); grants Petitioner’s request
for additional time to effect service of process on Respondent (Doc. 36); and directs Petitioner to
effect service on Respondent of an amended application to confirm the arbitration award as set forth
below and in accordance with 9 U.S.C. § 9 by May 5, 2017, or show good cause in writing by that
date for the failure to effect service within the time required by this order.
To avoid the confusion created by Petitioner’s filing of a separate application and motion to
confirm the arbitration award, the court also denies without prejudice Steven M. Johnson’s
Application for Order Confirming Domestic Arbitration Award (Doc. 1); denies without prejudice
Steven M. Johnson’s Motion to Confirm Domestic Arbitration Award (Doc. 3); and directs
Petitioner to file a single amended application to confirm the arbitration award by April 10, 2017,
which must be supported by legal authority and any evidence or papers relied upon by Petitioner.
The amended application and any response by Respondent must comply with the FAA, and the
Federal Rules of Civil Procedure and this court’s Local Civil Rules applicable to motions and
motion practice, including those for table of contents and the filing of supporting appendices and
citations to appendices. Failure of Petitioner to serve Respondent or show good cause for such
failure by May 5, 2017, will result in the dismissal of this action without prejudice for lack of
personal jurisdiction. Failure of either party to comply with the court’s Local Civil Rules will result
in the striking of any noncompliant application or response without further notice.

Memorandum Opinion and Order – Page 15

It is so ordered this 30th day of March, 2017.

_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order – Page 16