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Notice to Bar Inviting Comment on Proposed Superior Court Initiatives. Comments due on or before March 4, 2016

The Superior Court invites comments on a set of proposed initiatives, as described below, designed to make civil litigation more just, speedy, and inexpensive. These proposals would make significant changes in the conduct of civil litigation in the Superior Court. Comments should be sent by email to maria.pena@jud.state.ma.us or by regular mail to The Superior Court Working Group on Civil Litigation Options, c/o Maria I. Peña, Superior Court Administrative Office, 13th Floor, Three Pemberton Square, Boston, MA, 02108, on or before March 4, 2016.

The three proposed Superior Court initiatives are:

Proposal #1
Menu of Options- Right to Individual Case Management and Tracking.  A “menu” of options that would take the form of an individual case tracking order, at the option of the parties and with the approval of the Court.  The parties would have the opportunity to agree to vary standard procedures in one or more ways, including the procedures that otherwise govern discovery, trial, and post-trial events.  For example, the parties may agree to an early and firm trial date, with or without a jury, and with a variety of limits on the quantity and kind of evidence.  Parties would seek an individual tracking order by filing a Motion for Case-Specific Management, which would be authorized by changes to Superior Court Standing Order 1-88 and a proposed new Superior Court Rule 20.


Proposal #2
Pilot Program for Early Case Management Conferences for Qualifying Cases.  A pilot program for early case management conferences in four case categories: real estate, construction, products liability, and employment discrimination.  The proposed pilot program would provide an opportunity to assess the value of early case management conferences and the time required to conduct them.  In each case included in the program, the Court would convene a conference with the judge and counsel within 90 days after service of process.  Prior to the conference, the parties would be required to confer, to exchange written settlement proposals and responses, and to complete a standard form addressing case management.  An amendment to Superior Court Standing Order 1-88 would establish procedures for the conferences, and provide the form for the parties to prepare and submit. In addition, to facilitate conducting the conference early in the life of the case, as provided in the proposed amendment to the standing order, the Superior Court would recommend that the Supreme Judicial Court amend Rule 4(j) of the Massachusetts Rules of Civil Procedure to reduce the time limit for service of process from the present 90 days to 30 days, or to provide for a more expeditious alternative similar to the process now used in federal court, where service is required only when a defendant fails to respond to notice by mail.


Proposal #3
New Superior Court Rule on Expert Disclosure.  As is already required by the court’s “Notice to Appear for Final Pre-Trial Conference” in Superior Court Standing Order 1-88, the new rule would require that unless the parties agree, or the court orders otherwise, each party shall set forth certain information in the final pre-trial conference memorandum relating to any expert that a party intends to call at trial.


A link for further information concerning these proposals is attached below, please cut and paste:  http://www.mass.gov/courts/court-info/trial-court/sc/notice-to-bar-inviting-comment-on-proposed-superior-court-initiatives.html


Litigation conduct – Arbitration Waiver

Where a plaintiff has moved to compel arbitration, the motion should be allowed based on an arbitration clause in the parties’ subcontract. The claims all arise out of allegedly defective exterior sheeting the Defendants installed during the construction of a building, the New Hall, for Mount Ida College (‘Mount Ida’). …


Defendants argued that the Plaintiff’s motion should be denied because pre-conditions to arbitration have not been satisfied, which required on-site meetings and mediation before arbitration may be pursued, and that this dispute does not fall within the scope of the arbitration agreement, and Plaintiff has waived its right to arbitration through litigation conduct. …


“… [T]he decision as to the effect of Plaintiff’s alleged failure to comply with the preconditions of arbitration is one for the arbitrator. …“Under these circumstances, the Defendants will not be prejudiced by the compulsion of arbitration. Minimal litigation conduct has occurred, and the situation here is patently different from scenarios where delay in moving for compulsion of arbitration has resulted in parties engaging in months or years of unnecessary discovery or litigation conduct. … Additionally, any claims Defendants seek to pursue against other subcontractors, whether in this Court or before an arbitrator, may be subject to statutes of repose regardless of the ruling on this motion. Compulsion of arbitration does not contribute to any prejudice Defendants may experience in this regard. Accordingly, Plaintiff has not waived its arbitration right by litigation conduct. In light of the findings above, Plaintiff’s motion to stay and compel arbitration is granted.”


Cutler Associates, Inc. v. Palace Construction, LLC, et al. (13 pages) (Hillman, J.) (USDC) (Civil Action No. 15-40021-TSH) (Sept. 22, 2015).


Arbitration – Counsel fees
The issue presented in this case is whether an arbitration panel who applied the commercial arbitration rules of the American Arbitration Association  and who found that the arbitration agreement did not authorize an award of attorney’s fees, nonetheless may award attorney’s fees based on its finding that ‘substantially all of the defenses were wholly insubstantial, frivolous and not advanced in good faith.’  Where the arbitration panel ordered a condominium trust to pay counsel fees to the owner of two units, the SJC ruled that the fee award was correctly vacated in Superior Court because the parties did not authorize any such award. The Court noted that no provision of the parties’ agreement authorized the award of attorney’s fees.


Unlike an arbitrator’s authority in Superadio [Ltd. Partnership v. Winstar Radio Prods., LLC, 446 Mass. 330 (2006)] to award monetary sanctions for discovery violations and noncompliance with discovery orders, the key difference, however, lies in the AAA rules concerning the specific sanctions at issue: the version of rule 23 at issue in Superadio, governing discovery, broadly authorized the arbitrator ‘to resolve any disputes concerning the exchange of information,’ whereas rule 47(d)(ii) expressly limits the availability of attorney’s fees in arbitration awards, allowing fees only where they are requested by the parties or authorized by law or agreement. The SJC futher stated that thought G.L.c. 231, §6F, which allows a ‘court’ to award attorney’s fees where ‘substantially all of the defenses … were wholly insubstantial, frivolous and not advanced in good faith ….an arbitrator, however, is not a ‘court’ that may award attorney’s fees under §6F. …”


Beacon Towers Condominium Trust v. Alex, SJC-11880


Arbitration – Retroactivity
In a case where a plaintiff college alleged that the defendant accounting firm committed malpractice when it failed to detect serious financial irregularities that occurred in the college’s financial aid office during fiscal years 1998 through 2004, the plaintiff’s claims are not subject to an arbitration clause in the parties’ 2005 agreement.


None of the annual agreements from 1998 through 2004, referred to by the parties as ‘engagement letters,’ makes any mention of arbitration as an available (much less mandatory) means for the parties to resolve disputes that might arise between them.


KPMG is relying on the engagement letter that the parties executed for fiscal year 2005 which for the first time in any of their annual agreements, the 2005 engagement letter included a mandatory dispute resolution provision. …


… In our view……the only reasonable interpretation of that language in the context of this forward-looking agreement is in reference to services that KPMG would perform after the new contract was executed……where ‘it would have been a simple matter for’ the contract drafter to include a term it now claims is brought within the sweep of arguably ambiguous contractual language, ‘[w]e see no reason to add th[at] term[] now.’


Class Action Arbitration Clause Waiver

In DIRECTV v. Imburgia, decided on Dec. 14, 2015 the U.S. Supreme Court again dealt with a California court’s refusal to enforce a class arbitration waiver contained in a consumer form agreement falling under the Federal Arbitration Act.


Plaintiffs were customers of DIRECTV who in 2007 signed a customer service agreement with DIRECTV that included a mandatory arbitration clause and a class arbitration waiver. The plaintiffs subsequently sued DIRECTV alleging that their imposition of early termination fees violated California law. DIRECTV moved to compel arbitration, but the California Court of Appeal denied the motion, and the California Supreme Court denied discretionary review.

The lower court based its decision on its interpretation of language in the 2007 agreement stating that if “the law of your state” invalidated the class arbitration waiver, then the entire arbitration agreement would be unenforceable.


In 2011 however when the Supreme Court decided AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) holding that the FAA preempts state laws that invalidate a class arbitration waiver contained in an otherwise valid arbitration agreement.


After Concepcion, then, “the law of your state” has no effect on the enforcement of a class action waiver. Therefore, the disputed “law of your state” language in the 2007 agreement is now a meaningless artifact from the pre-Concepcion era.


Nevertheless, the California Court of Appeal in DIRECTV interpreted “the law of your state” in the 2007 agreement to include the very California law hostile to class arbitration waivers that Concepcion subsequently declared to be invalid under the FAA.


Therefore, the lower court struck the class waiver under invalid, pre-Concepcion California law. The court also applied the contract’s jettison clause and refused to enforce the entire arbitration agreement.


In a majority opinion written by Justice Stephen G. Breyer, the court held that the FAA preempts the lower court’s interpretation of the agreement. That means that a reference to “the law of your state” in any pre-Concepcion agreement evolves with the times and reflects any subsequent changes made by a state legislature, a state supreme court, or, as in this case, a decision of the Supreme Court on the supremacy of federal law over state law.


In short, the FAA preempts the lower court’s departure from general California contract law when it presumed that “the law of your state” referred to California law that was declared invalid in Concepcion.


Under the court’s decision, then, parties would have to refer expressly to invalid or preempted state law in their arbitration agreements (an unlikely but nonetheless enforceable contract clause under the FAA), to override the presumptive meaning of “the law of your state.”


$48M Arbitration Award Upheld-Impartiality of Arbitrator Denied

An arbitrator did not exceed his authority when he applied out-of-state law to award treble damages to a husband and wife who claimed they lost millions due to the fraud and gross negligence of their investment advisor, a Superior Court judge has ruled in upholding the $48 million award. The plaintiff argued that the award of treble damages under Pennsylvania unfair trade practices and consumer protection statutes contravened choice of law and limitation of liability clauses in its client agreement.  Judge Edward P. Leibensperger found no reason to disturb the arbitrator’s award.


Leibensperger wrote that “the Agreement expressly contemplates the application of federal and state statutes that, in the case of the Pennsylvania Unfair Trade Practice and Consumer Protection Law, according to the arbitrator, allows for treble damages.” Commentaors have expressed that f the limitation language had specifically included a limitation on multiple damages, the case might have come out differently and if one wants to limit the law just to Massachusetts, there are ways to do that as well.”


In addition to the arbitration clause, the parties’ agreement provided that it would be governed and construed by the laws of Massachusetts. Yet in his choice of law analysis on the issue of damages, the arbitrator concluded that Pennsylvania law applied because FEP and Weiss were registered as investment advisors in that state.


Accordingly, the arbitrator applied the Pennsylvania Securities Act and the Pennsylvania Unfair Trade Practice and Consumer Protection Law to award the Sutows treble damages.

Judge Leibensperger concluded that the arbitrator did not exceed his powers by awarding treble damages under Pennsylvania law, finding that the parties’ arbitration clause was “much broader” than their choice of law provision.


As to the claim of arbitrator impartiality…..“The sum and substance of the claim by FEP and Weiss of evident partiality is that [Philip S.] Cottone knew counsel for the Sutows as a fellow professional in the field of securities arbitration. …


“I find that the claim of ‘evident partiality’ is completely unsubstantiated. First, the professional interactions between Mr. Cottone and counsel for the Sutows were adequately disclosed. FEP and Weiss had no objection. Moreover, mere professional interaction between two members of a specialized area of the bar, without more, does not begin to suggest evident partiality. …

“… It is hypocritical, at best, for a losing party in a trial to which he fully submitted his defenses and claims in the hope of victory, to claim bias when he loses. …


Family Endowment Partners, L.P., et al. v. Sutow, et al. (9 pages) (Leibensperger, J.) (Suffolk Superior Court) (Civil Action No. 2015 CV 1411-BLS1) (Nov. 16, 2015).


Arbitration – Employment dispute

Where a defendant employer has moved to compel arbitration of an employee’s claims of wrongful termination and retaliation, the motion must be allowed based on arbitration clauses in the employment application and offer letter signed by the plaintiff.


In the Employment Application, the parties agreed ‘to resolve any claims or disputes arising out of or relating to [Hagerty’s] application for employment or, if hired, [his] employment with or termination from Cyberonics exclusively by final and binding arbitration before a neutral arbitrator under the then current rules of the American Arbitration Association.’. In the Offer Letter, the parties agreed that in ‘the event of a dispute concerning this employment offer or [Hagerty’s] employment relationship with Cyberonics, [Hagerty] and Cyberonics agree to submit the matter to binding arbitration under the then current rules of the American Arbitration Association.’ (Magee Decl. Ex. 2) (emphasis added).


“The ‘arising out of or relating to’ and ‘concerning’ provisions indicate an intent to arbitrate a broad scope of claims. … The arbitration clauses state that they specifically apply to ‘employment,’ ‘termination,’ and ‘employment relationship. … Therefore, in light of the ‘presumption of arbitrability’ and the federal policy favoring arbitration, Hagerty’s wrongful-termination claims are subject to arbitration, no matter whether the relevant agreement is the Employment Application, the Offer Letter, or both.


“Hagerty contends that the anti-retaliation claims do not fall within the scope of the arbitration clause because the clause does not contain ‘clear and unmistakable terms’ evidencing an enforceable agreement to arbitrate the relevant statutory claims. He cites Warfield v. Beth Israel Deaconess Medical Center, Inc., 454 Mass. 390 (2009) in support of that contention. …

“However, the court in Warfield incorrectly ‘appl[ied] general principles of State contract law to determine whether a particular agreement requires arbitration of a claim.’ … As previously stated, the question of ‘whether a particular dispute is within the class of those disputes governed by the arbitration clause .. is a matter of federal law.’ … In determining whether the particular dispute falls within a valid arbitration agreement’s scope, ‘“there is a presumption of arbitrability[:] an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.”’ … Applying the Warfield ‘clear and unmistakable terms’ test would not ‘place [the arbitration agreement] upon the same footing as other contracts,’ … and would run afoul of the presumption of arbitrability whereby ‘any doubts concerning the scope of an arbitrable issue should be resolved in favor of arbitration.’ … Therefore, the Warfield ‘clear and unmistakable terms’ test does not apply here.


“However, and in any event, Warfield is readily distinguishable because the arbitration provision at issue in that case was much narrower than the ones in the present case. …”


United States ex rel. Hagerty v. Cyberonics, Inc. (20 pages) (Saylor, J.) (USDC) (Civil Action No. 13-10214-FDS) (Nov. 13, 2015).

Arbitration – Waiver – Litigation conduct
Where defendants have moved to compel arbitration pursuant to an operating agreement, the motion should be allowed despite the plaintiff’s claim that the defendants waived the right to enforce the arbitration provision in the agreement.


“Plaintiff opposes sending this matter to arbitration. His only argument is that CRIC Realty has waived its right to enforce the arbitration provision. …


“While it is a close call in this case, I find that CRIC Realty has not waived its right to demand arbitration of plaintiff’s claims. Rather than a plaintiff commencing an action in court and later changing his mind to seek arbitration (the scenario in many of the cases), here it is the defendants who are invoking arbitration in their responsive pleading. The length of time between CRIC Realty being served with this lawsuit (December 2014) and when it indicated that it wished to enforce arbitration (August 2015) is not unduly long, as compared to many of the cases addressing undue delay. While plaintiff claims prejudice because discovery, initiated by both sides, has started, such discovery would have occurred in the arbitration process if arbitration had been demanded earlier. There is no unfair prejudice to plaintiff as a result of discovery.


“The countervailing consideration is that CRIC Realty invoked the jurisdiction of the court by filing a motion to dismiss plaintiff’s complaint. In fact, defendants filed their initial motion to dismiss in February 2015, and CRIC Realty did not raise the arbitration provision. That motion was not acted upon as plaintiff requested leave to file an amended complaint. CRIC Realty then filed a renewed motion to dismiss in which it argued for dismissal of claims on the merits but also noted the arbitration provision and its position that the claims should be sent to arbitration. Plaintiff arguably suffered some prejudice by having to respond substantively to defendants’ arguments in the motions to dismiss the claims on the merits.


“On balance, I find that plaintiff’s slight prejudice (slight, because he will have to confront CRIC Realty’s legal arguments in arbitration just as he did here) is outweighed by the strong policy to enforce a party’s arbitration rights. Moreover, CRIC Realty’s litigation conduct can be explained, in part, by the fact that the other CRIC entities that do not have an arbitration agreement with plaintiff were required to file a responsive pleading along with CRIC Realty. Those defendants were required to raise substantive grounds in defense. In sum, there is insufficient conduct by CRIC Realty to find an implied waiver of CRIC Realty’s arbitration rights.”


Harelick v. CRIC, LLC, et al. (Leibensperger, J.) (Superior Court) (Civil Action No. 2014-3930 BLS1) (Sept. 28, 2015).

Arbitration – Trust – Non-signatory
In a case where defendants have moved to compel arbitration under a voting trust agreement (VTA) formed along with the creation of a realty trust, the motion must be allowed despite the fact that the plaintiff never signed the VTA.
“After a careful review of the complaint, its attachments, and the arguments set forth by the parties, this court concludes that Elizabeth’s claims in this action against the Brown Defendants and Adams must be submitted to binding arbitration before the American Arbitration Association under the arbitration provision contained in the VTA. Although Elizabeth is a nonsignatory to the VTA, she is (1) bound by the agreement of her trustee, Adams, to enter into the VTA, and (2) a third-party beneficiary of the VTA. … Adams’ signature, as trustee of [Elizabeth Brown Realty Trust (EBRT)], on the VTA bound Elizabeth as he was her agent or representative. Moreover, Elizabeth was a beneficiary of [Canal Realty Trust (CRT)] and, thus, derived the benefits of the VTA, which was created to ‘insure the continuity and stability of management’ of CRT and ‘to avoid a conflict … with regard to the management’ of CRT. Elizabeth continues to benefit from CRT today in the form of twenty percent of CRT’s income.

Ambeliotis v. Brown, et al. (7 pages) (Leibensperger, J.) (Superior Court) (Civil Action No. 14-00855-BLS1) (Sept. 30, 2015).

Arbitration – Minimum wage
Where a defendant has moved to compel arbitration of a plaintiff’s minimum wage complaint, the motion must be denied because the issue of whether the parties’ dispute involving truck drivers is exempt from the scope of the Federal Arbitration Act is for the court, not an arbitrator, to decide.


“This case involves a labor dispute between a trucking corporation and a former truck driver. In March 2015, the plaintiff Dominic Oliveira brought this proposed class action alleging that the defendant New Prime, Inc. violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§201 et seq., and Missouri and Maine labor laws, by failing to pay its truck drivers minimum wage. … New Prime moved to compel arbitration under §4 of the Federal Arbitration Act (FAA), 9 U.S.C. §4, and two operating agreements signed by Oliveira on behalf of Hallmark Trucking LLC, both of which contain an arbitration clause. … Oliveira argues that the Court must determine whether the operating agreements are exempt from arbitration under §1 of the FAA before it can consider New Prime’s motion to compel arbitration. … New Prime maintains that the exemption’s application is a threshold question of arbitrability that the parties delegated to the arbitrator in the operating agreements. …


“… Section 1 … exempts ‘contracts of employment of transportation workers’ from the FAA entirely. … Employment contracts involving truck drivers fall within the transportation worker exception. …


“The FAA does not define the term ‘contract of employment.’ See 9 U.S.C. §1. Although neither the Supreme Court nor the First Circuit has directly addressed the issue, courts generally agree that the §1 exemption does not extend to independent contractors. …


“Neither the First Circuit nor Supreme Court has answered the central question in this case: does a district court have to determine the applicability of the FAA §1 exemption itself, or is the exemption issue just another gateway question of arbitrability that contracting parties may validly delegate to an arbitrator? …


“The Ninth Circuit held that the applicability of the §1 transportation worker exemption is not a question of arbitrability that the parties may delegate to an arbitrator. [In re Van Dusen, 654 F.3d 838, 843-45 (9th Cir. 2011)]. The court explained that because a ‘district court’s authority to compel arbitration arises under Section 4 of the FAA,’ a district court ‘has no authority to compel arbitration under Section 4 where Section 1 exempts the underlying contract from the FAA’s provisions.’ … ‘Section 4 has simply no applicability where Section 1 exempts a contract from the FAA, and private parties cannot, through the insertion of a delegation clause, confer authority upon a district court that Congress chose to withhold.’ … The court emphasized that ‘whatever the contracting parties may or may not have agreed upon is a distinct inquiry from whether the FAA confers authority on the district court to compel arbitration.’ …


“As the Ninth Circuit highlighted, its holding is consistent with the Supreme Court’s decision in Bernhardt v. Polygraphic Co. of America, 350 U.S. 198 (1956). …


“… Thus, this Court must keep on trucking in the present case to determine whether the two operating agreements Oliveira signed on behalf of Hallmark Trucking LLC are contracts of employment within the §1 exemption.”


Oliveira v. New Prime, Inc. (21 pages) (Saris, C.J.) (USDC) (Civil Action No. 15-10603-PBS) (Oct. 26, 2015).


Arbitration – Fraud – Fiduciary duty

Where a Superior Court judge confirmed an arbitration award in favor of a defendant and against the plaintiff minority shareholders, the arbitration award was not contrary to the law or public policy of Delaware.


“The plaintiffs contend that the arbitrator exceeded his authority when he ‘refused’ to apply a section of Delaware law, namely 8 Del. C. §271, which requires that stockholders be notified and have consented before ‘all or substantially all’ of the assets of a corporation are sold, leased, or exchanged. Basing his decision on Delaware cases, Massachusetts cases, treatises, statutes, and practice guides, the arbitrator was ‘not persuaded that the statutory duties of the Board to notify the shareholders and to obtain their consent … in a sale of all the assets is applicable to a sale pursuant to an assignment for the benefit of creditors,’ as was the case here. This legal conclusion is shielded from our review. …


“The plaintiffs next contend that the arbitrator’s award offends public policy, namely, Delaware public policy of providing stockholders with a right to vote on the sale of assets which, they claim, is ‘[e]mbodied in the [s]tatute.’ …


“… However, the plaintiffs have not ‘identified “a well defined and dominant public policy, ascertained from laws and legal precedents,” that is offended by the award … in this case.’ … An error of law, even one amounting to a misapplication of a statute, is not, in and of itself, a violation of public policy. …”


Paasch, et al. v. Ranoux (5 pages) (Appeals Court – Unpublished) (No. 14-P-1076) (Oct. 20, 2015).


Insurance – Arbitration – Uninsured motorist – G.L.c. 93A
Where a plaintiff’s complaint seeking to compel arbitration of an uninsured motorist claim was dismissed, the dismissal order must be reversed despite the defendant insurance company’s claim of non-cooperation on the part of the plaintiff.


“… The insurer moved to dismiss the complaint, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), arguing that the claim for uninsured motorist benefits was barred by the plaintiff’s non-cooperation (specifically his failure to complete an examination under oath and his failure to provide material documents and information in conjunction therewith), and that the claim asserting violations of chapters 176D and 93A is not subject to arbitration. A judge of the Superior Court allowed the motion to dismiss, stating in a marginal note that ‘the plaintiff’s complaint arises from a legal question of insurance coverage, an issue not properly committed to arbitration.’ …


“It is well-established that the plaintiff’s claim under chapters 176D and 93A is not within the scope of the policy’s arbitration clause. … The claim, however, may be litigated in court. Accordingly, while it was appropriate to dismiss so much of the complaint that sought to compel arbitration of the alleged violations of chapters 176D and 93A, dismissal should have been without prejudice to the filing of a new complaint, or the amendment of the present complaint, to assert the alleged violations in a civil action for damages.


“Insofar as the complaint sought to compel the insurer to arbitrate the plaintiff’s entitlement to uninsured motorist benefits, it should not have been dismissed. Although the representations in the insurer’s motion and accompanying memorandum, if substantiated, may well establish that it has a valid coverage defense to the payment of such benefits,a motion to dismiss must be decided based on the allegations of the complaint. On the face of the complaint, it cannot be determined, as matter of law, that the insurer is excused from liability under its policy.


Regis v. Progressive Insurance Company (4 pages) (Appeals Court – Unpublished) (No. 14-P-1848) (Oct. 16, 2015).


Arbitration – Counterclaim
Where a plaintiff who obtained a $1.24 million arbitration award against a defendant has moved to dismiss the defendant’s counterclaim seeking to vacate or modify the award, the dismissal request should be denied without prejudice despite the defendant’s error in failing to properly title the counterclaim as a motion.


“Section 6 of the Federal Arbitration Act directs that ‘any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions.’ 9 U.S.C. §6. That means that the Federal Rules of Civil Procedure generally do not apply to actions to confirm, modify, or vacate arbitration awards. … Thus, respondents’ request for the Court to vacate or modify the arbitration award should have been titled as a motion instead of as an answer or counterclaim. …


“The court, however, has the power to treat respondents’ ‘counterclaim’ as a motion if, despite its form, its substance is that of a motion. …


“In substance, respondents’ filing meets the requirements to constitute a motion. … The filing is 19 pages long and includes both the factual and legal bases for respondents’ request that the award be vacated or modified. Accordingly, the Court will treat the counterclaim as a motion to vacate or modify the arbitration award.


“A Rule 12(b)(6) motion to dismiss is not the proper mechanism for contesting a motion to vacate or modify an arbitration award. … Therefore, to the extent that [plaintiff Cindy-Marie] Rogers’s motion to dismiss respondents’ counterclaim attacks the merits of the ‘counterclaim,’ it is itself procedurally improper and will be denied without prejudice.


“Although the Court recognizes that the parties have supplied some briefing as to the merits of respondents’ contention that the panel’s award should be vacated, the Court is unable to issue a ruling either confirming or vacating the award without the benefit of a factual record. To that end, respondents should re-file an appropriately titled motion to vacate or modify the arbitration award, along with a memorandum of law and any supporting affidavits or other documents, in accordance with Local Rule 7.1(b).”


Rogers v. Ausdal Financial Partners, Inc., et al. (4 pages) (Saylor, J.) (USDC) (Civil Action No. 15-12899-FDS) (Oct. 14, 2015).