Photopaint Technologies LLC v. Smartlens Corp.

• Decision Date: 14 July 2003
• Docket Number: Docket No. 02-7784.
• Citation: 335 F.3d 152
• Parties: PHOTOPAINT TECHNOLOGIES, LLC, Petitioner-Appellant, v. SMARTLENS CORPORATION and Steven Hylen, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

335 F.3d 152

PHOTOPAINT TECHNOLOGIES, LLC, Petitioner-Appellant, v. SMARTLENS CORPORATION and Steven Hylen, Respondents-Appellees.

Docket No. 02-7784.

United States Court of Appeals, Second Circuit.

Argued: January 30, 2003.

Decided: July 14, 2003.

Kevin M. Hart, Stark & Stark, P.C., (Craig S. Hilliard, on the brief), Princeton, NJ, for Petitioner-Appellant.

J. Alexander Porter, Porter, Orrison & Doster, LLP, Atlanta, GA (Kandis M. Khan, Goodwin Procter LLP, New York, NY, Thomas D. Perrie, Perrie & Cole, LLC, Atlanta, GA, on the brief), for Respondents-Appellees.

Before: JACOBS, CALABRESI, and SOTOMAYOR, Circuit Judges.

JACOBS, Circuit Judge.

Photopaint Technologies, LLC, ("Photopaint") appeals from a final judgment entered in the United States District Court for the Southern District of New York (Knapp, J.), denying Photopaint's motion to confirm an arbitration award under the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., and granting the cross-motion for summary judgment of Smartlens Corporation and Steven Hylen (collectively, "Smartlens") on the grounds that section 9 of the FAA imposes a one-year statute of limitations on an application for an order of confirmation and that Photopaint (which moved for confirmation more than one year after the award was made) was not entitled to relief from this limitation period. See Photopaint Techs., LLC v. Smartlens Corp., 207 F.Supp.2d 193, 196-202, 204-209 (S.D.N.Y.2002).

We reverse, holding that the FAA does impose a one-year statute of limitations, but that Photopaint is entitled to relief from the statutory period. For the reasons that follow, the judgment of the district court is vacated and the case remanded for further proceedings not inconsistent with this opinion.

BACKGROUND

In December 1997, Photopaint and Smartlens entered into a license agreement containing a clause under which they agreed that their disputes would be submitted to arbitration. When a dispute arose in October 1999, they duly submitted it to an arbitrator selected by the American Arbitration Association ("AAA"). In an August 1999 "Partial/Interim Award," the arbitrator ruled largely in Photopaint's favor and ordered it to submit an accounting of costs associated with the license agreement. After reviewing these accounting submissions, the arbitrator signed a "Final Award" on May 26, 2000. The Final Award provided that the License Agreement was voidable; that either party could elect to rescind it within thirty days from receipt of the award; and that Smartlens would make a payment to Photopaint if either party elected to rescind. The amount of this payment was to depend on which party rescinded: if Smartlens rescinded first, it would pay approximately $384,000 plus Photopaint's share of the AAA costs; if Photopaint rescinded first, Smartlens would pay approximately $320,000.

Although the arbitrator signed the Final Award on May 26, 2000 and promptly sent it to the AAA for distribution, the AAA failed (for some reason) to deliver the award to the parties until October 3, 2000 — more than four months later. The parties ultimately found out that the award had issued when Smartlens asked to have the arbitration hearing reopened for additional submissions; in denying that request on October 23, 2000, the arbitrator treated it as one for modification of the Final Award, noting that this award had been rendered on May 26, 2000.¹

Since the Final Award provided that either party could rescind within thirty days of receiving the award, and since the parties first received it on October 3, 2000, the option to rescind was initially scheduled to expire on November 2, 2000. As this date neared, the parties entered into a series of letter agreements to allow for continued settlement discussions.

During the negotiations, Smartlens and Photopaint exchanged several drafts of a settlement agreement, in which they agreed that Smartlens would pay Photopaint a lump-sum of $360,000, but differed as to other provisions. In April, negotiations appeared close to resolution, and on April 16, 2001, Photopaint circulated a revised draft reflecting the $360,000 lump-sum payment and acceding to the remaining changes sought by Smartlens. Shortly afterward, however, Smartlens advised that, due to sharp financial reverses, it could offer no more than a lump-sum payment of $100,000, together with a promissory note. On May 1, Smartlens sought a further time extension "under exactly the same terms" as the parties' prior agreements, to "discuss [the] alternative proposal further and attempt to achieve a final resolution." Photopaint agreed. On the basis of this and subsequent letter agreements, the parties continued discussions into May, June, and July 2001 — beyond the May 26 one-year anniversary of the rendering of the Final Award.

Negotiations broke down in July 2001, and on July 27, Photopaint rescinded the license agreement and demanded from Smartlens the $320,000 payment provided for under the terms of the Final Award. Smartlens refused to pay, and Photopaint filed this petition to confirm the Final Award pursuant to the FAA.

In the district court, Smartlens argued against confirmation on the ground that the application was time-barred, under section 9 of the FAA, because it was filed more than one year after the date the Final Award was made. The district court agreed, granted Smartlens summary judgment on this ground, and dismissed the petition. Photopaint, 207 F.Supp.2d at 202, 209. Photopaint appealed.

DISCUSSION

We review de novo a ruling granting summary judgment, see Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998), construing the evidence in the light most favorable to the non-moving party (here, Photopaint) and drawing all reasonable inferences in that party's favor,² see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.1998). Cf. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 948, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (stating that, on appeals from decisions upholding arbitration awards, we review legal conclusions de novo and factual determinations for clear error). Summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

I

Section 9 of the FAA provides, in pertinent part:

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order [confirming the award] unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.

9 U.S.C. § 9 (emphasis added). The threshold question on appeal is whether this wording creates a one-year statute of limitations — a question of first impression in this Court.

As Photopaint emphasizes, the permissive verb "may," rather than the mandatory verb "must," is used in the clause affording one year to the party wishing to confirm an award, while "must" is used elsewhere in the same section and in other sections of the FAA. In section 12, for example, Congress used "must" in relation to the three-month period for filing a motion to vacate an arbitration award.³

We have recognized in another context that "`when the same [statute] uses both "may" and "shall", the normal inference is that each is used in its usual sense — the one act being permissive, the other mandatory.'" Weinstein v. Albright, 261 F.3d 127, 137 (2d Cir.2001) (alteration in original) (quoting Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428, 91 L.Ed.2d 436 (1947)); accord Lopez v. Davis, 531 U.S. 230, 241, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001); Haig v. Agee, 453 U.S. 280, 294 n. 26, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981); see also Rastelli v. Warden, Metro. Corr. Ctr., 782 F.2d 17, 23 (2d Cir.1986) ("The use of a permissive verb — `may review' instead of `shall review' — suggests a discretionary rather than mandatory review process."). Both the Fourth and the Eighth Circuits have relied on this "normal inference" in holding that "may" in section 9 is permissive only, and that petitions to confirm arbitral awards under the FAA may be filed beyond the "one year" period. See Sverdrup Corp. v. WHC Constructors, Inc., 989 F.2d 148, 151-56 (4th Cir.1993); Val-U Const. Co. of S.D. v. Rosebud Sioux Tribe, 146 F.3d 573, 581 (8th Cir.1998); see also Gronager v. Gilmore Sec. & Co., No. 93 Civ. 1484, 1996 WL 200303, at *3 (S.D.N.Y. Apr.25, 1996) (following Sverdrup), aff'd on other grounds, 104 F.3d 355 (2d Cir.1996) (unpublished disposition); Nations Personnel of Texas, Inc. v. American Med. Sec., No. CIVA3:95-CV-3072-R, 2000 WL 626868, at *2 (N.D.Tex. May 15, 2000) (following Sverdrup). But see In re Consol. Rail Corp., 867 F.Supp. 25, 30-32 (D.D.C.1994) (relying on considerations of finality to hold that section 9 imposes a mandatory one-year statute of limitations). In the Fourth Circuit's Sverdrup decision, which was relied on heavily by the Eighth Circuit in Val-U Construction, the court cited the ordinary permissive meaning of "may," as well as considerations of judicial economy, in holding that section 9's limitations period is not mandatory. Sverdrup, 989 F.2d at 151-52, 156; accord Val-U Constr., 146 F.3d at 581.

We respectfully disagree, particularly in light of the Supreme Court's intervening decision in Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., 529 U.S. 193, 120 S.Ct. 1331, 146 L.Ed.2d 171 (2000). Cortez Byrd considered whether the word "may" is used permissively in the context of the FAA's venue provisions, under which (whenever the parties do not specify otherwise) ...