Mpj v. Aero Sky, L.L.C., Civil Action No. SA-09-CV-693-XR.
| Citation | 673 F.Supp.2d 475 |
| Decision Date | 30 November 2009 |
| Docket Number | Civil Action No. SA-09-CV-693-XR. |
| Parties | MPJ, My Personal Jet, A.V.V., Plaintiff, v. AERO SKY, L.L.C., Defendant. |
| Court | United States District Courts. 5th Circuit. Western District of Texas |
E. Michelle Bohreer, Todd J. Zucker, Bohreer & Zucker LLP, Houston, TX, for Plaintiff.
Ron A. Sprague, Gendry & Sprague, P.C., San Antonio, TX, for Defendant.
ORDER ON MAGISTRATE JUDGE'S REPORT & RECOMMENDATION
On this day, the Court considered the Report and Recommendation of the Magistrate Judge (Docket Entry No. 14). The Court referred motions in the above-styled and numbered cause of action to the Magistrate Judge for initial consideration and for a ruling pursuant to 28 U.S.C. § 636(b)(I)(B). The Magistrate Judge then recommended that the Court grant Plaintiff's motion to confirm an arbitration award, deny Defendant's counter-motion to modify or vacate the arbitration award, sustain and grant Plaintiff's objection and motion to strike Defendant's exhibit A, and deny both parties' request for a hearing. Having considered the report, the Court ACCEPTS the Magistrate Judge's report and recommendation. Plaintiff's pending motion to confirm an arbitration award (Docket Entry No. 1) is GRANTED, Defendant's counter-motion to modify or vacate the arbitration award (Docket Entry No. 5) is DENIED.
Plaintiff MPJ, My Personal Jet, A.V.V. ("MPJ") and Aero Sky, L.L.C. ("Aero Sky") entered into an agreement under which Aero Sky would perform scheduled maintenance on MPJ aircraft. A dispute between the parties led to arbitration before the Honorable John J. Specia, a then-retired state District Judge of Bexar County, Texas.
On August 24, 2009, MPJ initiated this case when it sought an order to confirm the arbitration award against Aero Sky. (Mot. for Order Confirming Arbitration Award (Aug. 24, 2009) [Docket Entry No. 1].) Aero Sky filed a counter-motion for the Court to modify or vacate the arbitration award. (Resp. to Mot. for Order Confirming Arbitration Award & Counter-mot. to Modify or Vacate Arbitration Award (Sept. 3, 2009) [Docket Entry No. 5].) The Court referred the motions to United States Magistrate Judge Pamela A. Mathy for a report and recommendation for the Court's consideration. On November 10, 2009, Magistrate Judge Mathy provided the Court with her report and recommendation for this Court's review and consideration. Neither party has objected.
In reviewing the Magistrate Judge's report and recommendation, the Court must conduct a de novo review of any of the Magistrate Judge's conclusions to which a party has specifically objected. See 28 U.S.C. § 636(b)(1) (). As to the portions of the report that are not objected to, the Court needs only to review those portions to determine whether they are clearly erroneous or contrary to law. Id.; United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989). A party may serve and file objections to the order within ten days. FED. R. CIV. P. 72(a), (b)(2). In this case, neither party has objected to the report and recommendation, so the Court evaluates the report and recommendation to determine if it is clearly erroneous or contrary to law.
The Magistrate Judge evaluated the arbitration award pursuant to the standards outlined in the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16. As the Magistrate Judge noted, "the district court's review of an arbitration award, under the [FAA], is extraordinarily narrow." Prescott v. Northlake Christian Sch., 369 F.3d 491, 494 (5th Cir.2004) (internal quotation marks omitted). The Court must confirm the award unless it should be vacated under Section 10 or modified under Section 11 of the FAA. See 9 U.S.C. § 9. Sections 10 and 11 provide the exclusive grounds for vacatur and modification. See 9 U.S.C. §§ 10-11.
The Magistrate Judge found that Aero Sky has not demonstrated that the award was procured by corruption, fraud or undue means; evident partiality; misconduct on the part of the arbitrator in refusing to hear evidence pertinent and material to the controversy to the prejudice of its rights, or that the arbitrator exceeded his authority. Moreover, the Magistrate Judge found that Aero Sky did not meet the requirements to warrant modification of the award.
In accordance with the standards of the Federal Arbitration Act, the Magistrate Judge concluded that the Court should confirm the arbitration award. This conclusion is not contrary to law or clearly erroneous.
The Court hereby ACCEPTS the Report and Recommendation of the Magistrate Judge's Report and Recommendation, GRANTS Plaintiff's motion to confirm the arbitration award, DENIES Defendant's cross-motion to modify or vacate the arbitration award, and ACCEPTS the Magistrate Judge's report and recommendation regarding the related matters involving a motion to strike an exhibit and denying requests for hearing.
It is so ORDERED.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the limited Order of referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge1 and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(I)(B) and Rule 1(d) of the Local Rules for the Assignment of Duties to United States Magistrate Judges in the Western District of Texas, the following report is submitted for your review and consideration.
This Court has diversity subject matter jurisdiction under 28 U.S.C. § 1332(a) because there is complete diversity of citizenship and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. Although the Federal Arbitration Act ("FAA") is "not jurisdictional,"2 § 9 of the FAA authorizes a party seeking to confirm an arbitration award to apply for such an order in the federal district court selected by the parties or, if no court is specified, in the United States court in and for the district in which such award was made.3 No court is specified in the parties' "General Terms Agreement" ("Agreement") and the arbitration proceeded before Honorable John J. Specia, Jr. in his offices in San Antonio, Texas, within this District.
Plaintiff, MPJ, My Personal Jet, A.V.V. ("MPJ") initiated this case in this Court on August 24, 2009, when it filed its "Motion for Order Confirming Arbitration Award" and 18 exhibits in support.4 In brief, MPJ alleges that MPJ and Aero Sky entered into an Agreement on or about January 13, 2006, under which Aero Sky, located in San Antonio, agreed to perform a scheduled maintenance program on MPJ aircraft for a "capped" price of $1,250,000, which MPJ agreed to pay in progress pay' ments. The Agreement contained an arbitration clause.
Following proceedings in an earlier case, summarized below, the parties did arbitrate their dispute, before the Honorable John J. Specia, a then-retired Bexar County District Judge, in San Antonio, Texas. The parties' engagement agreement for Judge Specia's services as arbitrator included an agreement that the parties "agreed to a resolution through arbitration pursuant to the provisions of the Federal Arbitration Act ("FAA")."5 Following a telephonic conference on November 11, 2007, Judge Specia ordered by letter dated December 7, 2007, that the arbitration would proceed according to the American Arbitration Association's ("AAA") "Commercial Arbitration Rules to govern procedural parts of this proceeding."6 The parties memorialized their agreements on prearbitration hearing matters, to include dates for exchanging statements of claims and responses, discovery, and designation of expert witnesses.7 The arbitration hearing began on February 18, 2009, with evidence presented on February 18 and 19, 2009, and April 8, 2009; the hearing concluded on April 8, 2009.8 No party requested a court reporter or record of the hearing and none was made.9
After the conclusion of the hearing, but before Judge Specia entered his final ruling, on June 15, 2009, Aero Sky asked Judge Specia to re-open the evidence to allow Aero Sky's principal, Mr. Bernard Fourrier, to testify about an alleged Federal Aviation Administration investigation of MPJ's expert witness, Mr. Francis Iniekpo "directed at the revocation of his license due to false entries in maintenance documentation."10 Judge Specia declined to re-open the evidence for Mr. Fourrier's testimony.11
Judge Specia issued his Award, including findings of fact and conclusions of law ("Award") on July 17, 2009, ordering Aero Sky to pay MPJ $456,292.32 within fifteen days of the Award.12 On July 21, 2009, MPJ asked Judge Specia to correct the Award to reflect that the text of the Award requires Aero Sky to pay prejudgment interest, such that the computation of the total amount awarded should be corrected to $499,058.66.13 The same day, Aero Sky asked Judge Specia to re-evaluate the evidence on the merits.14 On August 20, 2009, Judge Specia entered an Amended Award with the revised total amount awarded of $499,058.66, to include the pre-judgment interest, with no changes in any of the findings of fact or conclusions of law.15 The monetary amount awarded, due and payable within fifteen days of the issuance of the August 20, 2009 amended Award, remains unpaid.
Following issuance of summons and service, on September 3, 2009, defendant Aero Sky, L.L.C. ("Aero Sky") filed its combined response to MPJ's ...
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