United States District Court, S.D. New York
Marciano Larchmont, NY Pro Se Plaintiff
Kathleen B. Einhorn, Esq. Dena Calo, Esq. Genova, Burns &
Giantomasi & Webster Newark, N.J. Counsel for Defendants
OPINION & ORDER
KENNETH M. KARAS, District Judge
Plaintiff Lucia Marciano (“Plaintiff”) commenced
this Action in 2011 against DCH Auto Group
(“DCH”), and later amended the Complaint to add
Brian Lam (“Lam”), and Bernard Fee (“Fee,
” and collectively, “Defendants”) as
Defendants. Plaintiff alleged three claims of workplace
discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., (see Third Am.
Compl. ¶¶ 114-17 (Dkt. No. 24)), the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq., (see
Id. ¶¶ 118-22), and New York's Human
Rights Law, N.Y. Exec. Law § 290 et seq., (see
Id. ¶¶ 123-28). In July 2013, Defendants
brought a Motion To Compel Arbitration, (Dkt. No. 35),
arguing that Plaintiff was contractually bound to arbitrate
the claims Plaintiff asserted in federal court. On March 31,
2014, the Court issued an Opinion & Order granting
Defendants' Motion To Compel Arbitration. (Dkt. No. 56.)
The Court stayed this Action pending the resolution of the
arbitral proceedings. On November 3, 2016, Arbitrator Sheila
S. Cole (“Arbitrator Cole”) issued a decision
(the “Arbitration Decision”) dismissing
Plaintiff's demand for arbitration with prejudice.
(See Disposition of Motion To Dismiss Claimant's
Amended Demand for Arbitration (“Arbitration
Decision”) (Dkt. No. 84).)Defendants have filed a
Motion To Confirm the Arbitration Decision, (Dkt. No. 86),
and Plaintiff has filed a Motion To Vacate, (Dkt. No. 90).
For the reasons to follow, Defendants' Motion is granted,
and Plaintiff's Motion is denied.
focus of this Court's Opinion is on whether to confirm or
vacate the Arbitration Decision, and therefore, only the
facts and background necessary to decide that issue are
April 16, 2014, Plaintiff filed a Notice of Demand for
Arbitration with the American Arbitration Association
(“AAA”) against DCH. (Arbitration Decision 3.)
When Plaintiff filed her Notice of Demand, she was
represented by counsel. (Id. at 3-4.) DCH filed an
answering statement in August 2014. (Id. at 3.) On
September 18, 2014, Plaintiff's counsel informed the AAA
that he was no longer representing Plaintiff. (Id.
at 3-4.) On October 20, 2014, and December 18, 2014,
Plaintiff was granted extensions of time to obtain new
counsel. (Id. at 4.) The AAA informed Plaintiff that
no further extensions would be granted. (Id.)
February 19, 2015, the arbitration was assigned to Arbitrator
Cole. (Id.) Plaintiff again sought to postpone the
case until she could acquire new counsel. On March 2, 2015,
Arbitrator Cole agreed to stay the proceeding for 60 days,
but informed Plaintiff that no further such requests would be
granted. (Id.) On May 5, 2015, the AAA advised the
Parties that the 60 days had expired and requested that the
Parties participate in a case management conference.
(Id.) Arbitrator Cole held a scheduling conference
on June 17, 2015, and on June 19, 2015 the Parties executed
an order setting deadlines for certain discovery obligations.
(Id. at 5.) At the time the June 17, 2015 scheduling
conference was held, Plaintiff was again represented by her
former counsel. (Id.)
1, 2015, Plaintiff filed a Motion To Amend her Demand for
Arbitration to include Lam and Fee as respondents.
(Id.) Arbitrator Cole granted Plaintiff's
October 27, 2015, the Parties executed an amended scheduling
order. (Id.) Pursuant to the amended schedule, the
Parties were required to provide responses to discovery
requests by November 30, 2015. (Id.) On December 2,
2015, Defendants provided responses to Plaintiff's
interrogatory requests and produced 616 documents to
Plaintiff. (Id.) On December 18, 2015, Defendants
notified Plaintiff that she failed to comply with her
obligation to provide to Defendants certain documents and
information, including an executed HIPPA authorization form,
and requested that Plaintiff remedy these deficiencies by
January 11, 2016. (Id.)
February 2, 2016, Plaintiff's counsel again withdrew.
(Id. at 6.) Plaintiff thereafter sought to stay the
arbitration while she attempted to retain new counsel.
(Id.) On March 23, 2016, the AAA placed the
arbitration in abeyance until May 31, 2016. (Id.) On
May 31, 2016, Plaintiff requested an additional 60-day
extension. Arbitrator Cole denied this request on June 17,
21, 2016, Defendants again informed Plaintiff that she had
not yet complied with her discovery obligations.
(Id.) Defendants requested that Plaintiff remedy the
deficiencies by July 5, 2016. Plaintiff notified Defendants
that she could not respond by that deadline, but would
respond as soon as possible after July 19, 2016.
19, 2016, Arbitrator Cole granted Defendants' request for
leave to dismiss the arbitration. (Id.) Arbitrator
Cole directed Defendants to file their motion by August 18,
2016. (Id.) Plaintiff was given until September 19,
2016 to respond. (Id.) On September 13, 2016,
Plaintiff requested an extension of time. (Id.)
Arbitrator Cole granted Plaintiff until October 3, 2016 to
submit her opposition. (Id.) On that date, Plaintiff
submitted her papers. (Id.) Arbitrator Cole issued
the Arbitration Decision on November 3, 2016.
Cole, after recounting much of this procedural history and
Plaintiff's numerous abeyance and extension requests,
On the entire record before me, Respondents' Motion to
Dismiss Claimant's Amended Demand for Arbitration is
Both before and after the arbitrator was appointed, Claimant
requested and was granted numerous extensions of deadlines.
In addition, because Claimant's lawyer twice withdrew as
counsel in this matter, Claimant has requested and has been
granted a number of temporary abeyances or extensions of time
in which to retain new counsel. Claimant has not retained new
counsel. Although she asserts that she is unable to afford
counsel, Claimant has not indicated an intention to proceed
without counsel. Claimant's position suggests no
realistic expectation that she would not continue to seek
additional extensions of time in which to retain new counsel,
without success. Moreover, even after Respondents were
granted leave to file a Motion to Dismiss, Claimant requested
an extension of time in which to respond.
Respondents correctly point out that they are entitled to a
just and efficient adjudication of this matter. The
parties' dispute has been in arbitration approximately
two and one-half years and has not proceeded beyond the
discovery phase and Respondent[s] ha[ve] notified Claimant
that her responses to discovery requests are deficient.
Although Claimant asserts that she has not provided all that
Respondents have asked for in discovery because they are not
entitled to receive some of the requested materials, Claimant
failed to seek timely relief. Similarly, Claimant asserts
that Respondents have failed to meet some of its obligations,
but Claimant failed to make these assertions prior to
Respondents' seeking leave to move for dismissal of the
amended demand for arbitration. Here too, Claimant failed to
seek timely relief for any of Respondents' alleged
Respondents' assertion that they have expended a great
deal of time and money in defense of the claims against them
is presumed and unrebutted. Additional delay would increase
the resources Respondents ...