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FAUST v. FOX

United States District Court, S.D. New York


August 3, 2005.

EUGENE B. FAUST and MARLENE A. FAUST, Petitioners,
v.
THOMAS W. FOX, Respondent.

The opinion of the court was delivered by: JED RAKOFF, District Judge

MEMORANDUM ORDER

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 motion.*fn1

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, does not.

  Accordingly, respondents' motion to dismiss is granted and the petition dismissed. Clerk to enter judgment. SO ORDERED.


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