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DIRUSSA v. DEAN WITTER REYNOLDS

July 24, 1996

RAYMOND J. DiRUSSA, Plaintiff, against DEAN WITTER REYNOLDS, INC., and LAWRENCE J. SOLARI, JR., Defendants.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 These are cross-motions to vacate and confirm an award of arbitrators. The factual background appears in the Court's Memorandum and Order dated October 20, 1995, familiarity with which is presumed.

 I

 In their initial cross-motion, defendants moved to dismiss plaintiff's complaint, as well as confirm the award. The ground for the motion to dismiss was an asserted lack of subject matter jurisdiction in this Court. On the pleadings as they then existed, that question turned upon whether plaintiff's arbitrable claims sufficiently implicated the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), 29 U.S.C. §§ 621 et seq. But I need not resolve that question, since plaintiff has amended his complaint to allege complete diversity of citizenship. Defendants do not challenge plaintiff's jurisdictional allegations. It follows that whether or not subject matter jurisdiction exists under 28 U.S.C. § 1331, it clearly does under § 1332.

 Plaintiff asks the Court to disregard as unauthorized written submissions by defendants that they characterize as "surreply." In point of fact, defendants made these submissions as of right. Plaintiff moved to vacate or modify the award. Defendants then opposed that motion, and cross-moved to dismiss or confirm. Plaintiff then replied to defendants' opposition to his motion, and opposed defendants' cross-motion. Defendants then replied to plaintiff's opposition to their motion. This is all perfectly in order, and defendants' use of the term "surreply" does not change that fact. I have considered all of the submissions before me.

  II

 The first substantive point arises out of the arbitrators' refusal to award plaintiff his attorney's fees.

 Plaintiff claimed that he had been wrongfully terminated by defendants on account of his age. His statement of claim before the National Association of Securities Dealers, Inc. ("NASD") alleged jurisdiction under the ADEA and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Claim, P 2. As plaintiff recognized in his statement of claim, the Supreme Court's holding in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991), required him to submit his discrimination claim to arbitration under the terms of his contract of employment. Plaintiff claimed, inter alia, "attorney's fees and costs of suit pursuant to the ADEA and NJLAD." Id., p. 6, P (e).

 The arbitrators, after conducting hearings and receiving briefs of counsel, rendered an award which gave plaintiff a total of $ 220,000 in compensatory damages but denied all other requested relief, including plaintiff's claim for attorney's fees.

 Plaintiff asks the Court to vacate or modify the award in that respect, on the ground that the ADEA mandates an award of attorney's fees to a successful claimant.

 Despite defendants' faint protests to the contrary, the factual predicate for plaintiff's contention is entirely accurate. Section 626(b) of the ADEA incorporates by reference that portion of the Fair Labor Standards Act providing that "the court . . . shall, in addition to any judgment awarded to the plaintiff . . . , allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b) (emphasis added). The Second Circuit has repeatedly held that the ADEA mandates an award of fees to a plaintiff who recovers a judgment. See, e.g., Hagelthorn v. Kennecott Corp., 710 F.2d 76, 86 (2d Cir. 1983), citing Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 415 & n. 5, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978).

 Since the arbitrator's rejection of plaintiff's claim for attorney's fees under the ADEA does not fall within any of the limited grounds for vacating an arbitration award found in the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 10, 11, plaintiff must rely upon that judicially created ground for overturning arbitration awards known as "manifest disregard of the law." See Carte Blanche (Singapore) Pte, Ltd. v. Carte Blanche International, Ltd., 888 F.2d 260, 265 (2d Cir. 1989). *fn1"

 The Second Circuit has cautioned that judicial inquiry into an arbitration award under the "manifest disregard" standard is "extremely limited." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 934 (2d Cir. 1986). The Bobker court continued: "The governing law alleged to have been ignored by the arbitrators must be well defined, explicit, and clearly applicable. We are not at liberty to set aside an arbitration ...


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