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FISCHER v. CGA COMPUTER ASSOCS.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 10, 1985

In the Matter of the Arbitration between ADDISON M. FISCHER, Petitioner, - against - CGA COMPUTER ASSOCIATES, INC., a/k/a CGA Computer, Inc., Respondent

The opinion of the court was delivered by: EDELSTEIN

ADDENDUM TO OPINION AND ORDER

EDELSTEIN, District Judge:

This is an addendum to the court's opinion and order dated July 3, 1985, which granted the petition for confirmation of an arbitration award. In that opinion, the court found that it had jurisdiction of the petition, pursuant to 9 U.S.C. § 9 and 28 U.S.C. § 1332. The court, however, did not explicitly find that the contract in which the arbitration clause was included is one "evidencing a transaction involving commerce" within the meaning of 9 U.S.C. §§ 1 and 2. Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698 (2d Cir. 28, 1985). The court has the power to amend the July 3, 1985 opinion, sua sponte, under its inherent power to correct the record. Allied Materials Corp. v. Superior Products Co., 620 F.2d 224, 226 (10th Cir. 1980). Because judgment has not yet been entered by the judgment clerk as directed in the July 3, 1985 opinion and order, the proscriptions of Rules 52 and 60(a) of the Federal Rules of Civil Procedure do not apply.

 The "commerce" requirement is satisfied if plaintiff's employment contract "contemplates using interstate communication facilities and engaging in interstate activities." Smiga v. Dean Witter Reynolds, Inc., supra, slip op. at 4945; see Dickstein v. duPont, (sic) 320 F. Supp. 150, 152 (D. Mass. 1970). Paragraph 10 of the petition for confirmation in this case states that the contracts evidence transactions involving commerce, because "the businesses of ASC and of CGA have been based on the distribution of computer software products throughout the United States, and the services Fischer was to render, and did render, under the Employment Agreement and Amended Employment Agreement required extensive interstate travel by Fischer and were designed to enhance, and did enhance, CGA's customers and sales on a national basis." In addition, paragraph 2 of the petition states that CGA "maintained 16 offices in 13 states throughout the country." CGA has not objected to any factual assertion in the petition or contended that this court lacks subject matter over the petition. Moreover, the court finds, based on the exhibits and affidavits submitted by petitioner, that the contracts contemplate the use of interstate facilities and interstate activities. Accordingly, the court finds that the Acquisition Agreement and the employment agreements between CGA and Fischer are contracts evidencing a transaction involving commerce, within the meaning of 9 U.S.C. §§ 1 and 2. The July 3, 1985 opinion is hereby amended to reflect this finding.

 SO ORDERED.

19850710

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