United States District Court, S.D. New York
August 3, 2005.
EUGENE B. FAUST and MARLENE A. FAUST, Petitioners,
THOMAS W. FOX, Respondent.
The opinion of the court was delivered by: JED RAKOFF, District Judge
Pro se respondent moves to dismiss the above-captioned
Petition For Recognition Of Confirmation Of Arbitration Award And
Entry Of Judgment on the grounds that the petition is untimely.
For the reasons that follow, the Court grants respondent's
Petitioners opened a brokerage account with Gruntal & Co.
("Gruntal") on November 16, 1995, pursuant to an agreement
requiring that any dispute between petitioners and Gruntal or its
employees be submitted to the National Association of Securities
Dealers ("NASD") for arbitration under the Federal Arbitration
Act. See Memorandum Opinion, Civil Action No. 04-935 (W.D. Pa.)
("Mem. Op."), February 24, 2005, attached as Ex. C to Petition
For Recognition Of Confirmation Of Arbitration Award And Entry Of
Judgement ("Pet."), April 12, 2005, at 2. The agreement also
states that "[j]udgment upon the award rendered may be entered in
any court in the City of New York having jurisdiction, to which jurisdiction I hereby
consent." Pet. Ex. A.
Respondent was the broker assigned by Gruntal to handle
petitioners' account. Mem. Op. at 2. On February 16, 2001,
petitioners filed a claim with the NASD in Pittsburgh,
Pennsylvania, against Gruntal, respondent, and Ryan Beck &
Company, LLC ("Ryan Beck"), Gruntal's successor, alleging various
improprieties in the handling of that account. See Award, NASD
Dispute Resolution, March 29, 2004, attached as Ex. B to Pet., at
1. The arbitration was eventually stayed as to Gruntal and Ryan
Beck, leaving Mr. Fox as the sole respondent in the arbitration.
Id. at 2.
On March 29, 2004, the NASD panel unanimously entered an award
for the petitioners against the respondent for $110,000 with
interest from June 1, 1998 at six percent per annum, $330,000 in
punitive damages, $90,000 in attorneys' fees, fees and costs of
$375, and $13,200 in remaining fees and costs for the panel.
See id. at 2-4.
On June 22, 2004, respondent moved to vacate the arbitration
award, pursuant to 9 U.S.C. § 10, in the United States District
Court for the Western District of Pennsylvania, the district in
which the arbitration took place. See Mem. Op. at 1.
Petitioners counter-moved to confirm the arbitration award.
Id.*fn2 On February 24, 2005, the District Court for the Western District of Pennsylvania
denied respondent's motion to vacate and granted petitioners'
motion to confirm. Id. Respondent then filed his presently
pending appeal in the U.S. Court of Appeals for the Third
Circuit. See Docket of 05-1998 (3d Cir.). Thereafter, on April
19, 2005, petitioners filed the instant petition in this Court.
Although couched as a petition to enter judgment, the instant
petition is, as a practical matter, no different than the motion
to confirm the arbitration award that petitioner previously filed
in the Western District of Pennsylvania, which motion was
granted. The Federal Arbitration Act, 9 U.S.C. § 9, provides
that, to enter judgment on an arbitration award, a party to the
arbitration must apply to a court with jurisdiction for an order
confirming the award within one year of the date upon which the
award is made. See Photopaint Technologies, L.L.C. v.
Smartlens Corp., 335 F.3d 152, 158-60 (2d Cir. 2003). Although
petitioners' motion to confirm the arbitration award filed in the
Western District of Pennsylvania on January 19, 2005, satisfied
this limitation, the instant petition, filed on April 19, 2005,
Accordingly, respondents' motion to dismiss is granted and the
petition dismissed. Clerk to enter judgment. SO ORDERED.