Appeal from a judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, confirming an arbitration award in favor of petitioner-appellee. Appellee seeks damages and double costs flowing from the defense of the appeal. Judgment affirmed, request for damages and double costs denied.
Before Mulligan, Van Graafeiland and Meskill, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, confirming an arbitration award in favor of petitioner-appellee, Lake Utopia Paper Limited, a New Brunswick, Canada corporation and against respondent-appellant Connelly Containers, Inc., a Pennsylvania corporation. The question raised on appeal is whether the United States Arbitration Act confers jurisdiction on the district court to confirm the award. We hold that it does and we affirm substantially on the opinion of Judge Sand below.
Claiming that the appeal is frivolous, appellee asks that pursuant to 28 U.S.C. § 1912 and Fed. R. App. P. 38 Connelly be assessed double costs, reasonable attorneys' fees for this appeal, and interest at the rate of 13.77 percent. In support of this request, appellee states in its brief:
The District Court's opinion as to the frivolous nature of Connelly's contentions is clear. At the pre-argument conference in connection with this appeal, moreover, Connelly was advised by Staff Counsel that in Counsel's opinion the appeal was baseless and should be dropped. Connelly has disregarded the opinions of both the District Court and Staff Counsel.
Appellee's brief at 12. The inclusion of such information in a brief is highly improper and will not be condoned.
The pre-argument conference alluded to took place in accordance with the Civil Appeals Management Plan, which has been adopted by this Circuit to expedite the processing of civil appeals. The Plan has the force and effect of a local rule and provides in pertinent part as follows:
5. Pre-Argument Conference . . .
a) In cases where he may deem this desirable, the staff counsel may direct the attorneys to attend a pre-argument conference to be held as soon as practicable before him or a judge designated by the Chief Judge to consider the possibility of settlement, the simplification of the issues, and any other matters which the staff counsel determines may aid in the handling or the disposition of the proceeding.
Chief Judge Kaufman, in discussing The Pre-Argument Conference: An Appellate Procedural Reform, 74 Col.L.Rev. 1094, 1098 n. 14 (1974), explained that the Second Circuit has made the choice of having pre-argument conferences held by a Staff Counsel rather than a judge for two reasons:
To further both practical objectives and the interests of justice, the Judicial Council provided for the use of Staff Counsel rather than judges to conduct pre-argument conferences.
The result of this choice is that:
CAMP has insulated the judges from pre-argument conferences. The panel which may ultimately hear an argument is never informed about the conduct of counsel at the conference.
To ensure that all participants are aware of the ground rules, the following notice is posted on the door of the room where ...