Summary
noting that "when a party fails to abide by an arbitrator's determination without justification . . . attorney's fees may be awarded"
Summary of this case from Noble Ams. Corp. v. Iroquois Bio-Energy Co.Opinion
03 Civ. 0219 (KNF).
May 26, 2006
MEMORANDUM and ORDER
In this action, the plaintiff, District Council No. 9, seeks to confirm an award issued by a panel of arbitrators. Previously, counsel to the defendants, who are all corporate entities, made an application to be relieved of the obligation of continuing to represent the defendants. That application was granted. Thereafter, the defendants did not engage new counsel to defend their interests in this action. Since corporate entities cannot appear in a litigation pro se, the defendants have elected not to defend against the action since the departure of their counsel. As a result, the plaintiff has made an application, pursuant to Fed.R.Civ.P. 55(a) and 55(b)(2), for: (i) an entry upon the record of the defendants' default; and (ii) an entry upon the record of a default judgment against the defendants. The plaintiff's applications, that the arbitrators' award be confirmed and that a default as well as a default judgment be entered against the defendants, are addressed below.
"[T]he confirmation of an arbitration award is a summary proceeding that merely makes what is already a final arbitration award a judgment of the court." Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984). Absent a statutory basis for modifying, vacating or correcting an arbitration award, a district court is required to confirm the award under 9 U.S.C. § 9, if a timely application for confirmation has been made. See Ottley v. Schwartzberg, 819 F.2d 373, 376 (2d Cir. 1987). An application to confirm an arbitration award is timely if made by any party to the arbitration proceeding within one year after the arbitration award is made. See 9 U.S.C. § 9. The plaintiff's application to confirm the arbitrators' award was made timely.
The statutory bases for vacating an arbitration award are set forth at 9 U.S.C. § 10. They are: 1) where the award was procured by corruption, fraud, or undue means; 2) where there was evident partiality or corruption in the arbitrators, or either of them; 3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or 4) where the arbitrators exceeded their powers; or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
Nothing in the record before the Court supports a finding that the arbitrators' award should be vacated. The arbitrators determined to award the plaintiff $5,500. Accordingly, that award is confirmed. The submission made by the plaintiff indicates that the plaintiff is entitled to interest on the award at the rate of 1.38% from January 10, 2003. According to the plaintiff, the amount of interest owed is $227.70. In addition, the plaintiff seeks to recover the costs it incurred in connection with the instant litigation. Based upon the submission made by the plaintiff to the Court, its costs amount to $295. The Court finds that it is reasonable and appropriate to award the plaintiff the interest that accrued on the arbitrators' award and the costs that it incurred in prosecuting this action.
The plaintiff has also requested that it be permitted to recover from the defendants $1,100, the total amount of fees it paid for legal services provided to it in connection with this action. In a federal action, attorney's fees may not be recovered by a successful litigant in the absence of statutory authority for such an award. See Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 1616 (1975). " 29 U.S.C. § 185 does not provide for attorney's fees in actions to confirm and enforce an arbitrator's award." Int'l Chemical Workers Union v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir. 1985). However, when a party fails to abide by an arbitrator's determination without justification, such as the defendants did in the instant case, attorney's fees may be awarded. See Bell Prod. Engineers Ass'n v. Bell Helicopter Textron, 688 F.2d 997, 999 (5th Cir. 1982).
In the Second Circuit, a party seeking an award of attorney's fees must support that request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Attorney fee applications that do not contain such supporting data "should normally be disallowed." Id. at 1154.
In the case at bar, the plaintiff has not provided the Court with its counsel's contemporaneous time records. Accordingly, the plaintiff's application for attorney's fees is denied.
In summary, the plaintiff's application, that the arbitrators' award be confirmed, is granted. The plaintiff's application, that the defendants be found to have defaulted in the action, and for a default judgment, is granted. The Clerk of Court shall enter judgment for the plaintiff in the amount of $6,022.70.
That figure represents: the arbitrators' award of $5,500; interest in the amount of $227.70; and costs in the amount of $295. The liability of the defendants for the judgment is joint and several.
SO ORDERED.