Johnson v. Bankers Life & Casualty Company et al, No. 1:2020cv00037 - Document 14 (S.D. Ga. 2020)
Court Description: ORDER granting in part and denying in part 5 Motion to Dismiss for Lack of Jurisdiction. Defendants' Motion to Transfer is denied; furthermore, the grounds asserted in Defendants' Motion to Dismiss, construed as an opposition to Plaintiff's motion, are meritorious. Accordingly, Plaintiff's 1 Motion to vacate the Arbitration Award is denied. This case stands closed. Signed by Chief Judge J. Randal Hall on 12/11/2020. (jlh)
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Johnson v. Bankers Life & Casualty Company et al Doc. 14 IN THE UNITED STATES DISTRICT COURT FOR gHE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION 1.' - KIM-MARIE JOHNSON, 'k k Plaintiff, -k V. BANKERS LIFE & CASUALTY COMPANY; K.F. AGENCY, INC.; JOSEPH EDWARDS; CAMERON MCDUFFY-SMITH; and TOM DENNANY, CV 120-037 'k -k k k k k Defendants. ORDER Before Company, (misnamed Dennany's the Court is K.F. Agency, in Complaint Defendants Inc., ("Defendants") as Bankers Joseph Edwards, & to transfer, alternative, motion to dismiss. Plaintiff's Casualty Cameron McDuffy-Smith}, Cameron motion Life Smith and Tom in the or \\ Petition to Vacate Award of Arbitrator Award and or order a rehearing with a different Arbitrator or adjust the Award of Arbitrator dated 2020" (the "Petition"). (Doc. 5.) January 17, For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART. Dockets.Justia.com I. BACKGROUND Plaintiff, proceeding pro se, filed her Petition on March 23, 2020, moving the Court to vacate the arbitration award, and/or order a rehearing with a different arbitrator, and/or adjust the award of the arbitrator in American Arbitration Association case number #01-18-0004-6021. (Compl., Doc. 1. ) Plaintiff originally filed a charge with the United States Equal Employment Opportunity Commission ("EEOC") on April 12, 2018 for discrimination based on (Id. 51.) race, sex, and retaliation. The EEOC issued a right to sue letter and Plaintiff then filed a demand for arbitration with her process complaint seeking // December began arbitration on took place on damages 26, and 2018. November 14, other relief (Id. 2019 55 at and \\ the The 2-4). the office of Littler Mendelson in Atlanta, Georgia in front of Arbitrator Penn Payne ("Payne"). (Tr., Doc. 5-2, at 2-3.) Payne issued the Award of Arbitrator ("Award") on January 17, 2020, finding in favor of the Defendants on all claims brought by Plaintiff and denying any claims not expressly granted therein. (Doc. 1-8, at 9.) Plaintiff then filed her Petition, claiming the Award was obtained by fraud and corruption and that Payne's decision was based on undue means. (Compl., at because both 2-3.) Plaintiff filed the Petition in this Court Plaintiff and the defendants lived and worked in the Augusta Southern District of Georgia and the offenses took place 2 n in jurisdiction of the Southern District. (Pl.'s Resp., Doc. 6, at 3. ) In their present motion, Defendants move to transfer venue, or in the alternative, to dismiss Plaintiff's Petition. Defendants first claim that venue is proper in the district within which the arbitration hearing was held, requesting that the case immediately transferred to the Northern District of Georgia. 5-1, at 1-2.) proper Petition {Doc. In the alternative, if the Court is to find venue the in be Southern dismissed statutory notice Plaintiff filed for District, Defendants Plaintiff's failure requirements a response of to 9 this move to to have the comply with the U.S.C. § 12. motion on (Id. April at 29, 2.) 2020, claiming venue is proper in this Court and that notice was in fact served during the requisite time. (Doc. 6.) Defendants then filed a reply in support of their motion on May 8, 2020, standing by their contentions and requesting the Court to either transfer. or in the alternative, dismiss the Petition. Defendants' motion has been fully briefed (Doc. 8.) and is Therefore, ripe for the Court's review. II. PROCEDURAL POSTURE The Court first notes that Plaintiff is proceeding pro se. The Court affords a liberal construction to documents filed by a pro se party, and a pro se complaint must be held to less stringent 3 Erickson v. standards than formal pleadings drafted by lawyers. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The Eleventh Circuit has held that the Federal Rules of Civil Procedure, together with the Federal Arbitration Act ("FAA"), do not permit a complaint or party to an contest an application to arbitration vacate award by filing a an arbitration award, but N\ instead require a that request to vacate an arbitration award must 'be made in the form of a motion' as provided in Rule 7 (b), Federal Rules of Civil Procedure. Barney, LLC, No. 3:13-cv-636, // Belz V. Morgan Stanley Smith 2014 WL 897048, at *2 (M.D. Fla. Mar. 6, 2014) (citations omitted). In this case. Plaintiff filed a document titled \\ Petition to Vacate Award of Arbitrator Award and or order a rehearing with a different Arbitrator ff January 17, 2020. or adjust {Doc. 1.) the Award of Arbitrator dated The Court, construing pro se filings liberally, will analyze Plaintiff's Petition as a motion to vacate. properly filed under Rule 7(b)(1). instructed that the proper 1 N\ procedure [T]he Eleventh Circuit has for the party seeking to vacate an arbitration award is to file a motion to vacate in which. as the moving party. she would bear the burden to set forth 1 Rule 7(b) (1) provides: "A request for a court order must be made my motion. The motion must: (A) be in writing . . . ; (B) state with particularity the grounds for seeking the order; and (C) state the relief // Fed. R. Civ. P. 7 (b) (1). sought. 4 sufficient grounds to vacate the arbitration award in her moving papers. // Belz, 2014 WL 897048, at *2. citations omitted) providing sufficient Plaintiff Therefore, grounds to (internal quotations and vacate has the the Award burden in her of filed Petition. In response construes as a to motion Plaintiff's to vacate. Petition, Defendants which filed a held properly motion that motion construed to vacate. application reason to a more deny, as to an See opposition id. properly construe at or in as this reason (holding rather than dismiss Defendants' filed to, *3 included cases with similar holdings). will dismiss the and motion to fashion to motion response Court Other courts transfer, or in the alternative, a motion to dismiss. have the deny, to and the dismiss framed application, is as a citing Following that notion, this Court motion to dismiss opposition to Plaintiff's motion to vacate.^ as a response in Having addressed the 2 The Eleventh Circuit has held: [T]he purpose of the [FAA] was to relieve congestion in the courts and to provide parties with an alternative method for dispute resolution that would be speedier and less costly than litigation. The policy of expedited judicial action . . . would not be served by permitting parties who have lost in the arbitration process to file a new suit in federal court, The proper procedure . . . is for the party seeking to vacate an arbitration award to file a Motion to Vacate in the district court. O.R. Secs., Inc, v. Pro. Plan. Assocs., Inc., 857 F.2d 742, 745-46 (11th Cir. 1988) (internal citations and quotations omitted). ^ "The liberality of the . . . Federal Rules is such that an erroneous nomenclature does not prevent the court from recognizing the true nature 5 procedural aspect Defendants' motion of the to transfer, the case, and Court in the will now analyze alternative, their opposition to Plaintiff's motion to vacate. III. LEGAL STANDARDS AND DISCUSSION A. Motion to Transfer Under the FAA, Section 10(a) provides for vacation and states. \\ [T]he United States court in and for the district wherein the award was made may make an order vacating the award n application of any party to the arbitration . . 10(a) (emphasis added). correction and states. upon the 9 U.S.C. § Section 11 provides for modification or [T]he United States court in and for the district wherein the award was made may make an order modifying or correcting the arbitration . . award // upon the application of any Id. § 11 (emphasis added). party to the Pursuant to this language, the United States Supreme Court has held these FAA venue provisions make it permissive, not mandatory, to bring a motion to vacate, modify, or correct in the district where arbitration took place. See Cortez Byrd Chips, Inc, v. Bill Herbert Constr. Co., 529 U.S. 193 (2000) (holding the permissive view of language of the FAA is the prevailing interpretation). the statute \\ the venue Therefore, permit[s] such a motion [to be filed] either where tf of a motion. O.R. Secs., Inc., 897 F.2d at 746 (quoting Sacks v.Reynolds Secs ., Inc., 593 F.2d 1234, 1239 (D.C. Cir. 1978)). 6 the award venue was made statute. // or in Id Defendants' at any district proper 195 (emphasis added) . to transfer seeks motion where the arbitration indisputably took place. where the a motion arbitration mandatory. Instead, pertinent took place, filed does District not in of Georgia then is proper provides a in this Court Court. The action may be brought is general of While the make for this District the choose here.^ analysis civil it be Northern Plaintiff did not whether venue that to vacate the Northern permissive venue that The to the general Plaintiff's Georgia, permit to have transferred does Court to Petition FAA from this under the district such is to venue simply a determine venue statute in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district (2) the a is located; judicial district in events or omissions occurred, or a which a substantial part of giving rise to the claim substantial part of property that is subject of the action is situated; or if there is no district in which an action (3) otherwise be brought as provided in this section, judicial district in the court's personal action. the may any which any defendant is subject to jurisdiction with respect to such '* Plaintiff contends venue is improper in Atlanta because the arbitration // and could have been held in convenience only took place there due to This fact is irrelevant; Atlanta is (Pi. 's Resp. , at 2-3. ) Augusta. still a proper venue because the arbitration did in fact take place See Cortez, 529 U.S. at 201 there, regardless of the reasoning, (explaining one of the reasons the FAA venue language is permissive, not the location of the arbitration may well be the mandatory, is because residence of one of the parties, or have some other connection to a contract at issue, [but] in many cases the site will have no relation whatsoever to the parties or the dispute") . 7 28 U.S.C. § 1391(b). Section 1391(b)(1) is inapplicable because Defendant Smith is {Doc. 5-5, 1 4 .) a resident of Virginia. that \\ [Smith] now living in ff Smith's proper under out-of-state Subsection has no bearing to the (Pl.'s Resp., f E.), the Court finds organization of the case that Virginia While Plaintiff contends residency prohibits Nevertheless, (1). venue from Section being 1391(b) (2) provides venue is proper in this district because the events giving rise to the arbitration took place in Augusta, Georgia. Defendants contend venue is improper here because Although the actual arbitration proceeding is what is at issue in the motion and that proceeding took place in Atlanta, persuaded by this argument. Georgia, the Court is not For purposes of the venue statute. n refers to the the \\ events or omissions giving rise to the claim events leading up to and causing the arbitration to take place. not the event of the arbitration itself. This is in line with the Supreme Court's decision in Cortez, which held a motion to vacate was properly brought in Mississippi pursuant to the general venue statute because that is where the contract at issue had been performed, even though the challenged arbitration had taken place in Birmingham, Alabama. See Cortez, 529 U.S. at 198, 204 (holding if FAA venue language is permissive and supplemental, as it is. then the motion to vacate was properly filed in Mississippi); see also Trehel Corp. v. W.S. Agee Grading Contractor, Inc., No. 1- 12-CV-0054, 2012 WL 1080586, at *3 n.2 (N.D. Ga. Mar. 30, 2012) (finding venue was proper in the district because part of the events or omissions giving rise contract claim occurred within the district). to a substantial the underlying Because venue is proper under Subsection (2), Subsection (3) is not implicated. Based on the foregoing, the Court finds venue for the Petition is proper in this district and therefore DENIES Defendants' motion to transfer. B. Defendants' Opposition to Plaintiff's Petition for Failure to Comply with Statutory Notice Requirements Under the FAA, correct an attorney delivered. award within // [njotice of a motion to vacate, modify, or must be three served months 9 U.S.C. § 12. upon the after the adverse award party or is filed his or The party moving to vacate the award bears the burden of proving she accomplished valid service. 2014 WL 897048, at *6 (citations omitted). 'merely filing [the motion to Belz, \\ It has been held that vacate as opposed to serving the motion] within that time period is insufficient to stop the running of the three-month limitations period. V. t II O'Neal Constructors, LLC DRT Am., LLC, 440 F. Supp. 3d 1396, 1400 (N.D. Ga. 2020) (citing Belz, 2014 WL 897048, at *4) (alteration in original). \\ Further, [a] party to an arbitration award who fails to comply with the statutory precondition of timely service of notice forfeits the n right to judicial review of the award. 9 Piccolo V. Pain, Kalman & Quail, Inc., 641 F.2d 598, 600 (8th Cir. 1981) (applying the rule stated to two pro se plaintiffs who served the defendant three months and twenty-one days after the arbitration award was delivered) (citations omitted). Here, the Award was issued on January 17, 2020 . Therefore, notice of a motion to challenge the Award was required to be served upon the adverse parties by April 17, 2020. See 9 U.S.C. § 12. Plaintiff filed her Petition on March 23, 2020. timely filed, service Cameron Smith, Tom was not perfected Dennany, and until Although it was May 4, 2020 for Joseph Edwards or until May 5, 2020 for K.F. Agency, Inc. and Banker's Life and Casualty Company, all outside of the three-month deadline. (See Doc. 13.) In response. Plaintiff argues that she was on time with her Petition because: (1) she filed with the court system before April 17, 2020; (2) service, \\ under the United States Marshall's (sic) delivery [Defendants' attorneys'] served in a timely manner; ri office was scheduled to be (3) she provided sufficient information to the United States Marshal ("Marshal") to identify and locate Defendants; and (4) she claims Defendants should consider themselves served because they were able to file their dismissal. (PI.'s Resp., at 1.) the nation and that She further argues that COVID-19 has changed any extension [she] would need to proceed would be granted and the continuation of delivery by the United 10 States Marshall Plaintiff states will (sic) she was continue."5 not required documents or to take any further action, (Id. ) \\ to n Additionally, forward any further presumably meaning she believes she did everything necessary by simply filing the case. (Id. at 2.) And finally, she contends that [t]he court documents were delivered to the office of Littler Mendelson in Indianapolis, IN to the defendants Attorneys rr and that \\ [t]he defendants attorneys have been notified and [she] 'did not' have to notify rr anyone individually because they have counsel. provides no basis or support for these statements. but Plaintiff (Id. ) Contrary to Plaintiff's assertions, the Court finds she did not comply with the statutory requirements of 9 U.S.C. § 12 and serve Defendants period. with notice within the requisite three-month For proper service, resident defendants require service in compliance with the law of the district where arbitration took place and nonresident defendants require service by the marshal in any district defendant may be found.® ® The Court notes that Plaintiff did continuation in this case. Plaintiff does not list the not file for an extension ® The FAA provides: 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 11 or residency of any Defendant in her Petition or her Response to Defendants' motion beyond stating generally, for venue purposes, that defendants lived and worked in the Augusta Southern District "1 to Defendants' office was attorneys required opposition served, were to Her only relevant responses (PI.'s Resp., at 3. ) of Georgia. she gave notified, The do. are and Court listed above information there cannot was to that the the Marshal, nothing speculate as else to lawyer's she the was Defendants' residency for purposes of complying with the service requirements of the FAA. (Doc. 13) But it wili note that the Marshal's Return of Service contained the Postal Service receipts confirming that Defendants were not served until May of this year. Plaintiff contends that filing the Petition with the Court satisfies the notice requirement, and that the Marshal had 90 days to complete however, is actual service from the date referencing the Federal opposed to the FAA guidelines. the ninety-day service party may be the court. 8 of filing. Rules of Civil Procedure (PI.'s Resp., 5 B.) provisions Plaintiff, of found in like manner Rule 4 would as But "applying violate the as other process of 9 U.S.C. § 12 (emphasis added). Plaintiff does note that she gave the Marshal sufficient information to identify and locate Defendants to effect service, but without providing the Court with their residency, the Court is unable to analyze the proper form of service required pursuant to 9 U.S.C. § 12. ® Rule 4(m) of the Federal Rules of Civil Procedure allows 90 days from the filing of a complaint to serve all defendants before the court can dismiss without prejudice. 7 12 general purpose of the FAA, i.e., to make arbitration procedure as speedy as possible and not subject to delay and obstruction in the courts. 0'Neal, 440 F. Supp. 3d at 1405 (citations omitted) ; see also Health Servs. Mgmt. Corp. v. Hughes, 975 F.2d 1253, 1258 (7th Cir. 1992) ("It would defeat the purpose of arbitration if a reviewing court was obligated to give all the due process owed to parties filing actions of a civil nature and deserving of Federal Rule 16 treatment, e.g., a scheduling conference, hearing, etc."); Technologists, Inc, v. MIR's Ltd., 725 F. Supp. 2d 120, 127 (D.D.C. 2010) ("Section 6 [of the F7\A] merely ensures that motions to vacate or confirm arbitral awards are not subject to the pleading requirements of the Federal Rules of Civil Procedure and enables judges to decide arbitration issues on an expedited basis."). Based on this distinction between Rule 4 and the FAA, the Marshal did not have 90 days to perfect service in this case, because the three-month deadline takes precedence. The Court notes that while it is under a duty to construe pro se filings liberally, litigants must still comply with procedural ft rules, including applicable filing deadlines. Brandau v. Warden, FCC Coleman-Medium, 476 F. App'x 367, 369 (11th Cir. 2012) (citing Moton V. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)). Plaintiff is not afforded a service requirement. \\ pass ff Therefore, for missing the three-month No additional or precautionary steps were taken to ensure Defendants received notice of this Petition before 13 the April 17, 2020 deadline; indeed. Plaintiff believes she was not required \\ to take any further action merely filing [the motion to // In short. after filing. vacate as opposed to serving the motion] within that time period is insufficient to stop the running of the three-month limitations period. rr See O' Neal, 440 F. Supp. 3d at 1400 (citations omitted) (alterations in original). As explained statutory above. requirement of a party providing three months of an arbitration judicial review of the who fails notice to to comply with defendants the within award loses the ability to seek See award. Piccolo, 641 F.2d at 600 (holding the failure to serve within three months of the award deprived to omitted). the court of power review the award) (citations The Court therefore finds that because Plaintiff failed to serve Defendants with notice of her motion to vacate within the requisite three-month period, she forfeited her right to judicial review of the Award. IV. CONCLUSION For the foregoing reasons. IT IS HEREBY Defendants' Motion to Transfer (Doc. 5) is DENIED. ORDERED that Further, the Court finds the grounds asserted in Defendants' Motion to Dismiss, which has been construed as an opposition to Plaintiff's motion. are meritorious. Accordingly, Plaintiff's motion to vacate the Arbitration Award (Doc. 1) is DENIED. 14 The Clerk is DIRECTED to TERMINATE all pending motions and deadlines, if any, and CLOSE this case. ORDER ENTERED at Augusta, Georgia, this // day of December, 2020. J. RANDAL HALL, CHIEF JUDGE UNITEiySTATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA 15
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