Summary
declining to impose fees on party who withheld payment of arbitral award for four months while opposing enforcement petition
Summary of this case from CHINA NATIONAL CHARTERING v. PACTRANS AIR SEAOpinion
05 Civ. 2368 (SHS).
August 2, 2005
MEMORANDUM ORDER
Petitioner Tena Collins has moved pursuant to Rule 54(d) of the Federal Rules of Civil Procedure for an award of attorneys' fees incurred in connection with her successful petition to confirm an arbitral award entered in her favor. Collins contends that fees are warranted in light of respondent CSAM Capital, Inc.'s bad faith refusal to abide by that arbitral award. CSAM both opposes Collins' motion and requests an order awarding it the fees it incurred in responding to Collins' motion for fees.
I. Factual Background
Collins' petition is based on the following conduct by CSAM:
On February 2, 2005, an arbitral award was issued by a three-person arbitration panel, requiring CSAM to pay in excess of $1.1 million plus interest to Collins. Following the issuance of the award, counsel for Collins contacted CSAM's counsel to inquire as to whether CSAM intended to appeal the award, and if it were not planning to appeal, when it would render payment.See Kevin M. Kinne's Attorney Affidavit Supporting Petitioners' Motion for Attorneys' Fees and Costs, at ¶ 5; Email from Daniel R. Solin to Bradley J. Butwin of February 9, 2005, attached as Ex. A to Kinne Aff.
CSAM's counsel replied that he "would be surprised if the decision regarding appeal will be made soon," explaining that with regard to the portion of the arbitrators' decision awarding Collins damages, CSAM "believe[s] that the majority manifestly disregarded the law." See Email from Bradley J. Butwin to Daniel R. Solin of February 9, 2005, attached as Ex. B to Kinne Aff. He further noted that CSAM's time for moving to vacate was 90 days, but stated that he would inform Collins' counsel when a decision had been made. Id. Two weeks later — well before the 90-day period had expired — Collins filed the petition to confirm the award.
CSAM then filed an answer to the petition, again indicating its objection to the arbitral award on the ground that it was issued in manifest disregard of the law. See Answer to Petition to Confirm Arbitral Award, at ¶ 11. The Court set May 2, 2005 as the deadline for CSAM to file a motion to vacate. That deadline passed without any motion to vacate having been filed or any notification to the Court from CSAM that it did not intend to file a motion to vacate. At a court conference on June 3, 2005, set in contemplation of oral argument on a motion to vacate, CSAM stated that no motion to vacate was being made and the Court issued an order that day confirming the arbitral award.
II. Discussion
As noted, Collins has now moved for her attorneys' fees. Because I do not find that CSAM refused to abide by the arbitrators' award in bad faith, that motion is denied. Because I also do not find that Collins' motion for fees was so meritless as to itself warrant an imposition of fees, respondent's request for its fees is also denied.
A. Legal Standard
Rule 54(d) of the Federal Rules of Civil Procedure permits a party to move for attorney's fees and provides that the moving party "must specify . . . the statute, rule, or other grounds entitling the moving party to the award." Fed.R.Civ.P. 54(d)(2)(B). Collins does not cite any statute, rule or contractual provision entitling her to an award of fees, but rather relies solely on the claim that an award of fees is warranted in light of CSAM's bad faith in failing to abide by the arbitral award.
Under the "American Rule" a prevailing party is ordinarily not entitled to attorneys' fees except where expressly provided by statute. See Int'l Chem. Workers Union (AFL-CIO), Local No. 227 v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir. 1985). The Federal Arbitration Act, pursuant to which Collins sought confirmation of the arbitral award, contains no provision authorizing an award of attorneys' fees in such actions. See In re Arbitration Before New York Stock Exchange, Inc., No. 04 Civ. 488, 2004 WL 2072460, at *14 (S.D.N.Y. Sep. 8, 2004); New York City Dist. Council of Carpenters Pension Fund v. Eastern Millenium Const., Inc., No. 03 Civ. 5122, 2003 WL 22773355, at *2 (S.D.N.Y. Nov. 21, 2003). In exception to the general rule, a court may award fees pursuant to its inherent equitable authority when "a party has `acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'" Kerin v. U.S. Postal Serv., 218 F.3d 185, 190 (2d Cir. 2000) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975).
The United States Court of Appeals for the Second Circuit has explained that in the context of a petition to confirm an arbitration award, fees may be awarded pursuant to this inherent authority "`when a challenger refuses to abide by an arbitrator's decision without justification . . .'" Int'l Chem. Workers Union, Local No. 227, 774 F.2d at 47 (quoting Bell Prod. Eng'rs Ass'n v. Bell Helicopter Textron, 688 F.2d 997, 999 (5th Cir. 1982)); see also Int'l Union of Petroleum and Indus. Workers v. Western Indus. Maint., Inc., 707 F.2d 425, 428 (9th Cir. 1983). However, a party's failure to pay an arbitral award immediately does not necessarily constitute bad faith. See Great Atlantic and Pacific Tea Co. v. Local Union No. 338, Retail, Wholesale and Dep't Store Union, AFL-CIO, No. 95 Civ. 5255, 1996 WL 282074, at *3 (S.D.N.Y. May 28, 1996).
B. Analysis
Collins urges that the circumstances here mirror those inAtlantic Marine Agencies v. Embassy of Sierra Leone, No. 87 Civ. 4389, 1988 WL 13699, at *1 (S.D.N.Y. Feb. 16, 1988). However, Atlantic Marine is factually distinguishable. In that case, the award the petitioner sought to confirm had been issued more than one and one half years prior to the court's decision and the respondent had neither opposed the petition nor filed any motions. See 1988 WL 13699 at *1. In contrast, here, Collins seeks fees based on a four-month delay in payment by CSAM, and CSAM has set forth the basis for its opposition to confirmation in its response to the petition.
While CSAM might have spared the Court time and effort had it informed the Court prior to the June 3, 2005 conference that it did not intend to oppose the petition on the ground that the arbitral award was issued in manifest disregard of the law, CSAM's failure to do so or to file a motion to vacate did not unduly add to petitioner's costs of litigation. Because CSAM had not filed a motion to vacate, Collins was not called upon to submit any further briefing in opposition to that motion or in support of her petition.
Although CSAM ultimately chose not to move to vacate the award, CSAM did not ignore Collins' petition — it filed an answer to it — and Collins has not shown that CSAM's continued consideration of its appeal options was not based on a good faith belief by CSAM that it might be able to assert a non-frivolous claim that the award was issued in manifest disregard of the law.
III. Conclusion
In sum, upon review of the facts and circumstances of this case, I do not find that CSAM has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975) (internal quotation marks omitted). Accordingly, Collins' motion for attorneys' fees is denied. Because CSAM has not shown that Collins' motion was brought for the purposes of harassment or delay or was so meritless as to warrant the imposition of fees, CSAM's request for fees is denied. See Kerin v. U.S. Postal Serv., 218 F.3d 185, 190, n. 2 (2d Cir. 2000).
SO ORDERED.