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Bowers v. Northern Two Cayes Company Limited

United States District Court, W.D. North Carolina, Asheville Division

January 30, 2017

RAYMOND V. BOWERS, Plaintiff,
v.
NORTHERN TWO CAYES COMPANY LIMITED and LIGHTHOUSE REEF RESORT LTD., Defendants.

          ORDER

          Martin Reidinger United States District Judge

         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.].

         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 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.”). Plaintiffs 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.

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Notes:

[1] Even though the parties agree that the arbitrator issued his Opinion and Award on October 13, 2016, the story does not end there. According ...


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