Bigben 1613, Llc v. Belcaro Group, Inc.

BRIEF in Opposition to 25 MOTION for Order to Stay Discovery Pending Resolution of Motion to Compel Arbitration

D. Colo.April 7, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:17-cv-00272-PAB-STV BigBen 1613, LLC, a Florida limited liability company Plaintiff, v. Belcaro Group, Inc. d/b/a ShopAtHome.com Defendant. OPPOSITION TO DEFENDANT BELCARO GROUP, INC.’S MOTION TO STAY DISCOVERY PENDING RESOLUTION OF MOTION TO COMPEL ARBITRATION Plaintiff, BigBen 1613, LLC (“Plaintiff”) submits this Opposition to Belcaro Group, Inc. (the “Defendant”)’s Motion to Stay Discovery Pending Resolution of Motion to Compel Arbitration [D.E. 25] (the “Motion to Stay”) as set forth herein. I. INTRODUCTION This case stems from Defendant’s representations made to induce purchases through its website www.shopathome.com and related claims. In the Motion to Compel Arbitration and Dismiss the Complaint under Federal Rules of Civil Procedure 9(b) and 12(b)(6) [D.E. 24] (the “Motion to Compel Arbitration”), the Defendant contends, inter alia, that an arbitration provision in certain “Terms and Conditions” supposedly maintained on Defendant’s website (the “Terms and Conditions”) govern the relationship of the Plaintiff and Defendant. Case 1:17-cv-00272-PAB-STV Document 30 Filed 04/07/17 USDC Colorado Page 1 of 8 2 As set forth in the Opposition to the Motion to Compel Arbitration [D.E. 28] (the “Opposition”), the Plaintiff argues that the arbitration provision in the Terms and Conditions is invalid for a plethora of reasons, therefore the Plaintiff opposes the Motion to Stay in its entirety. II. ARGUMENT a. Arbitration Provision is Invalid1 As set forth in the Opposition, the arbitration provision in the Terms and Conditions is invalid for a number of reasons. Initially, the Defendant’s attempt to introduce the Terms and Conditions as the basis for compelling an arbitration of the underlying claims by attaching them to an attorney declaration was procedurally defective as a matter of law. In that an attorney declaration is not admissible as a matter of law nor does such attorney declaration satisfy the requirement that it be made from a person with “personal knowledge,” the Terms and Conditions were not submitted in an admissible form and therefore cannot be considered as a matter of law. See [D.E. 28] at 2-7. Therefore, independent of the other basis set forth herein for this Court to deny the relief sought in Defendant’s Motion to Stay, just as this Honorable Court cannot consider the Terms and Conditions in connection with regards to the relief sought in the Motion to Compel Arbitration it similarly cannot consider the Terms and Conditions as evidence in connection with the relief sought in the pending Motion to Stay. Moreover, in addition to the inadmissibility of the Terms and Conditions, the arbitration provision itself is invalid under Colorado law. The leading cases cited in the Opposition are Dumais v. American Golf Corp., 299 F.3d 1216 (10th Cir. 2002) and Grosvenor v. Qwest Corp., 1 This argument is made at greater length in the Opposition (which is incorporated herein in its entirety by reference) and is included here only to provide the Court with a summary of the relevant arguments made therein. Case 1:17-cv-00272-PAB-STV Document 30 Filed 04/07/17 USDC Colorado Page 2 of 8 3 854 F. Supp. 2d 1021 (D. Colo. 2012). Dumais stands for the proposition that “an arbitration agreement allowing one party the unfettered right to alter the arbitration agreement’s existence or its scope is illusory.” 299 F.3d at 1219. The Grosvenor decision on this issue goes even farther. In Grosvenor, a customer sued his internet service provider Qwest. 854 F. Supp. 2d at 1023. Qwest asserted that there was a “Subscriber Agreement” that controlled the relationship between the parties which contained a mandatory arbitration provision. Id. The Court in Grosvenor concluded that “[b]ecause Qwest retained an unfettered ability to modify the existence, terms and scope of the arbitration clause, it is illusory and unenforceable.” Id. at 1034 (emphasis added). In the pending matter, because the arbitration provision in the Terms and Conditions on which Defendant relies allows Defendant the unfettered right to alter and modify the arbitration agreement’s terms and scope and is therefore, under the holdings of both Dumais and Grosvenor invalid as a matter of law, there is no reason to stay discovery in these proceedings as there is no valid arbitration provision that governs the relationship of the Plaintiff and the Defendant. b. Discovery Should not be Stayed Independent of the reasons set forth in Section a supra, the criteria cited in the Motion to Stay does not support a stay of discovery in this case. Initially, “[i]t generally is the policy in this district not to stay discovery pending a ruling on a motion to dismiss.” Chavez v. Young Am. Ins. Co., Case No. 06-cv-02419, 2007 U.S. Dist. LEXIS 15054 (D. Colo. Mar. 2, 2007)(emphasis added).2 This Court’s treatment of a similar motion to stay pending arbitration in Wells v. Dish 2 All unpublished decisions cited herein are attached hereto as Exhibit A for the ease of the Court and opposing counsel. Case 1:17-cv-00272-PAB-STV Document 30 Filed 04/07/17 USDC Colorado Page 3 of 8 4 Network, LLC, Case No. 11-cv-00269, 2011 U.S. Dist. LEXIS 66948 (D. Colo. June 22, 2011) is instructive. In Wells, Magistrate Judge Mix applied the String Cheese Incident, LLC v. Stylus Shows, Inc., No. 05-cv-01934, 2006 U.S. Dist. LEXIS 97388, 2006 WL 894955 (D. Colo. Mar. 30, 2006) standard, which is: “(1) the interest of Plaintiff; (2) the burden on Defendants in going forward; (3) the Court's convenience; (4) the interest of nonparties, and (5) the public interest in general,” and denied the requested stay. Wells, 2011 U.S. Dist. LEXIS 66948 at *2. Here, as in Wells, the first factor favors not granting the requested stay because the plaintiff “oppose[d] the stay and expresses an interest in proceeding expeditiously with discovery.” Id. Magistrate Judge Mix explained that “with the passage of time, the memories of the parties and other witnesses may fade, witnesses may relocate or become unavailable, or documents may become lost or inadvertently destroyed. As such, delay may diminish Plaintiff's ability to proceed and may impact her ability to obtain a speedy resolution of her claims.” Id. at *2-3. The second factor similarly does not favor granting a stay here. Specifically, “[t]he ordinary burdens associated with litigating a case do not constitute undue burdens.” Id. (citing Collins v. Ace Mortgage Funding, LLC, 08-cv-1709-REB-KLM, 2008 U.S. Dist. LEXIS 87503, 2008 WL 4457850, at *1 (D. Colo. Oct. 1, 2008)). Magistrate Judge Mix explained that: (i) a motion to compel arbitration “is not based on grounds typically warranting the imposition of a stay” Id. at *3; and (ii) that the types of cases where a stay is warranted are those where defenses of jurisdiction or immunity are raised, and in which instance, the Federal Arbitration Act provides that “a stay is only required after a determination has been made that the parties have a valid arbitration agreement.” Id. at *4 (citing 9 U.S.C. § 3) (emphasis in original). The Court therefore concluded that “given that the arbitration rules also provide for discovery . . . it is not clear that the Case 1:17-cv-00272-PAB-STV Document 30 Filed 04/07/17 USDC Colorado Page 4 of 8 5 circumstances of this case present a compelling reason for deviating from my prior decisions in this area.” Id. at *5. The Defendant argues that the AAA Rules are “narrower (and less expensive) than discovery under the Federal Rules.” Motion to Stay at 5. This is the precise argument unsuccessfully made by the defendant in Wells. A true and correct copy of the Motion for Immediate Stay of Discovery Pending Resolution of its Motion to Compel Arbitration is attached hereto as Exhibit B. The defendant in Wells argued that “The arbitration agreement provides for the arbitration to proceed pursuant to the AAA [Rules which] provide different discovery parameters which will ultimately be set by the arbitrator.” Exhibit B at 4. This same argument which was rejected in Wells should be similarly rejected in the instant case for the same reasons. Further, while the permissible discovery under the Federal Rules and the AAA Rules are different, the Federal Arbitration Act requires a “fundamentally fair hearing” and therefore must allow discovery of relevant evidence. See, e.g., Urquhart v. Kurlan, Case No. 16 C 2301, 2017 U.S. Dist. LEXIS 28601 (N.D. Ill. Feb. 28, 2017); Nat'l Union Fire Ins. Co. v. Odyssey Am. Reinsurance Corp., Case No. 05 Cv. 7539, 2009 U.S. Dist. LEXIS 108318 (S.D.N.Y. Nov. 18, 2009). In other words, while the AAA Rules may be different than the Federal Rules, the Federal Arbitration Act does not permit non-disclosure of relevant information, therefore the differences between discovery before the AAA and before this Court are not manifestly different, if they were then the Federal Arbitration Act would not permit enforcement of such an arbitration award. The third factor similarly favors not granting the requested stay. Staying cases “makes the Court's docket less predictable and, hence, less manageable” particularly where “the stay is tied to a resolution of a motion for which ultimate success is not guaranteed.” Wells, 2011 U.S. Dist. Case 1:17-cv-00272-PAB-STV Document 30 Filed 04/07/17 USDC Colorado Page 5 of 8 6 LEXIS 66948, at *6. Here, the same considerations as true, as a stay will make the Court’s docket less predictable and therefore less manageable and, in fact, the Defendant’s Motion to Compel Arbitration is bound to be denied as a matter of law as set forth in Section a, supra. The fourth and fifth factors similarly favor not granting the requested stay. The Defendant asserts that nonparties would not be impacted by the granting of a stay and that the public interest favors arbitration. Motion to Stay at 6. Under the same circumstances, Magistrate Judge Mix disagreed, explaining that “the Court identifies a strong interest held by the public in general regarding the prompt and efficient handling of all litigation.” Wells, 2011 U.S. Dist. LEXIS 66948, at *6-7. Plaintiff respectfully submits that the sound logic upon which Magistrate Judge Mix based her decision in Wells should be adopted by this Honorable Court and the relief sought in the Motion to Stay should be denied in its entirety as a matter of law. III. CONCLUSION Consequently, based on the factors set forth in Section II, supra, the Motion to Stay should be denied, in its entirety as a matter of law. The relief sought in Motion to Compel Arbitration is certain to fail because the arbitration provision in the Terms and Conditions are not binding or enforceable as a matter of law. Second, the String Cheese Incident, LLC factors weigh heavily against granting the requested stay, just as they did when Magistrate Judge Mix denied a similar motion in Wells v. Dish Network, LLC. Case 1:17-cv-00272-PAB-STV Document 30 Filed 04/07/17 USDC Colorado Page 6 of 8 7 WHEREFORE, Plaintiff requests that this Court deny the Defendant’s Motion to Stay and for such other and further relief as the Court deems proper. DATED: April 7, 2017 s/ Daniel W. Glasser Daniel W. Glasser, Esq. (#37716) Attorney for Plaintiff Chipman & Glasser, LLC 2000 South Colorado Boulevard, Tower One, Suite 7500 Denver, CO 80222 s/ Michael I. Bernstein Michael I. Bernstein, Esq. Florida Bar No.: 546208 Attorney for Plaintiff The Bernstein Law Firm 3050 Biscayne Boulevard, Suite 403 Miami, FL 33137 Case 1:17-cv-00272-PAB-STV Document 30 Filed 04/07/17 USDC Colorado Page 7 of 8 8 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of April, 2017, the foregoing RESPONSE TO MOTION TO COMPEL ARBITRATION AND DISMISS THE COMPLAINT UNDER FEDERAL RULES OF CIVIL PROCEDURE 9(b) AND 12(b)(6) is being filed through the Court’s CM/ECF system, which system will automatically serve all counsel of record. /s/Kristen Ledesma Case 1:17-cv-00272-PAB-STV Document 30 Filed 04/07/17 USDC Colorado Page 8 of 8 Exhibit A Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 1 of 26 Page 1 Positive As of: Apr 07, 2017 MARY A. CHAVEZ, and others, et al., Plaintiffs, v. YOUNG AMERICA INSUR- ANCE COMPANY, Defendant. Civil Action No. 06-cv-02419-PSF-BNB UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2007 U.S. Dist. LEXIS 15054 March 2, 2007, Decided March 2, 2007, Filed SUBSEQUENT HISTORY: Summary judgment granted by, Judgment entered by, Dismissed by Chavez v. Young Am. Ins. Co., 2008 U.S. Dist. LEXIS 3698 (D. Colo., Jan. 17, 2008) CORE TERMS: discovery, liability limits, insured's, class action, civil procedure, extraordinary circumstanc- es, motorist coverage, rating plan, bodily injury, insurer, Federal Rules, failure to state a claim, justice requires, dispositive, scheduling, speedy, unopposed, uninsured, dollars COUNSEL: [*1] For Mary A. Chavez, and others, et al., Plaintiff: Jerold Hart, LEAD ATTORNEY, Darrell S. Elliot, Darrell S. Elliott P.C., Denver, CO. For Young America Insurance Company, Defendant: Billy-George Hertzke, LEAD ATTORNEY, Senter, Godfarb & Rice, LLC, Denver, CO. JUDGES: Boyd N. Boland, United States Magistrate Judge. OPINION BY: Boyd N. Boland OPINION ORDER This matter is before me on the Defendant's Unop- posed Motion to Stay [Doc. # 17, filed 3/1/2007] (the "Motion to Stay"). The Motion to Stay is DENIED. This is a purported class action, removed by the de- fendant to this court from the state district court for the City and County of Denver, Colorado. The plaintiffs allege a violation of section 10-4-609(2), C.R.S., and seek an order that "every insurance policy of Young America Insurance Company issued to Colorado resi- dents during the last three (3) years be re-written to in- clude UM/UIM motor vehicle insurance coverage in an amount of $ 100,000/$ 300,000," among other relief. Class Action Complaint [Doc. # 1-2, filed 12/4/2006]. The defendant moved to dismiss the case under Fed. R. Civ. P. 12(b)(6) for failure [*2] to state a claim upon which relief can be granted, arguing: Colorado's UM/UIM statute states, in relevant part: "Prior to the time the policy is issued or renewed, the insurer shall offer the named insured the right to obtain higher limits or uninsured motorist coverage in accordance with its rating plan and rules, but in no event shall the insurer be required to provide limits higher than the insured's bodily injury liability limits or one hundred thousand dollars per person and three hundred thousand dollars per Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 2 of 26 Page 2 2007 U.S. Dist. LEXIS 15054, * accident, whichever is less. . . . For pur- poses of this subsection (2), the underin- sured motorist coverage is included in the term 'uninsured motorist coverage' pursu- ant to subsection (4) of this section." * * * Young America Insurance Compa- ny's rating plan and rules only allow in- sureds to purchase bodily injury liability limits of $ 25,000/$ 50,000. Unlike many other automobile insurers that offer cus- tomers the option to purchase $ 100,000/$ 300,000, $ 250,000/$ 500,000, and com- bined single limit policies, Young Amer- ica's only option for bodily injury liability is Colorado's minimum liability limit of $ 25,000/$ 50,000. Defendant's [*3] Motion to Dismiss Class Action Complaint [Doc. # 7, filed 12/8/2006], at PP 5-6. The defendant seeks to stay the case pending a de- termination of its motion to dismiss. In support of its request for a stay, the defendant argues that requiring the parties to pursue discovery will impose substantial costs and burdens which may prove unnecessary in the event defendant's motion to dismiss is granted. The defendant also asserts that a stay is especially appropriate here be- cause the request is unopposed. The Federal Rules of Civil Procedure do not provide for the stay of proceedings while a motion to dismiss is pending. Instead, Rule 1 instructs that the Federal Rules of Civil Procedure "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action," and Rule 26(c) permits a court to "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense," including entry of a stay of discovery. In considering whether to grant a stay: Five factors have been universally recognized as being critical to a proper balancing of the competing interests at stake. Those factors [*4] are: (1) the in- terests of the plaintiff in proceeding expe- ditiously with the civil action and the po- tential prejudice to plaintiffs of a delay; (2) the burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties to the civil litiga- tion; and (5) the public interest. Federal Deposit Ins. Corp. v. Renda, 1987 U.S. Dist. LEXIS 8305, 1987 WL 348635 *2 (D. Kan. Aug. 6, 1987); accord String Cheese Incident, LLC v. Stylus Shows, Inc., 2006 U.S. Dist. LEXIS 20928, 2006 WL 894955 *3 (D. Colo. March 30, 2006)(same). Consider- ing these factors leads me to conclude that a stay of dis- covery in this case is not warranted. The average time from the filing of a dispositive motion to its determination in this district in 2006 was 7.5 months. Consequently, essentially staying the case while defendant's motion to dismiss is pending could substantially delay the ultimate resolution of the matter, with injurious consequences. In this regard, it has been argued: Delay is an element indigenous to many systems, and one that can have sig- nificant implications unless recognized and accounted for. * * * In the litigation context, delay is not only of practical concern, as [*5] it re- sults in a decrease in evidentiary quality and witness availability, but also of social concern, as it is cost prohibitive and threatens the credibility of the justice sys- tem. Mariel Rodak, It's About Time: A Systems Thinking Analysis of the Litigation Finance Industry and Its Effect on Settlement, 155 U. PA. L. REV. 503, 528 (2006). In addition, motions to dismiss are denied more of- ten than they result in the termination of a case. Conse- quently, without attempting to prejudge the district judge's ruling on defendant's motion to dismiss, it is more likely than not from a statistical point of view that a delay pending a ruling on the motion to dismiss would prove unnecessary. 1 1 In this case, the defendant's motion to dis- miss is premised entirely on its assertion that "Young America Insurance Company's rating plan and rules only allow insureds to purchase bodily injury liability limits of $ 25,000/$ 50,000." Motion to Dismiss, at P 6. This assertion is unsupported by any evidence, nor could the court consider evidence in ruling on a motion to dismiss. Consequently, I am not persuaded that the defendant undoubtedly will prevail on its mo- tion to dismiss. [*6] Defendants always are burdened when they are sued, whether the case ultimately is dismissed; sum- Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 3 of 26 Page 3 2007 U.S. Dist. LEXIS 15054, * mary judgment is granted; the case is settled; or a trial occurs. That is a consequence of our judicial system and the rules of civil procedure. There is no special burden on the defendant in this case. It generally is the policy in this district not to stay discovery pending a ruling on a motion to dismiss. See Ruampant v. Moynihan, 2006 U.S. Dist. LEXIS 57304 **4-5 (D. Colo. Aug. 14, 2006). This is particularly true in cases like this one, pending before Judge Figa, who has instructed as follows: Litigants and counsel should know at the scheduling conferences that I plan to have all cases assigned to me tried within one year of filing, absent extraordinary circumstances. I would like parties to be made aware that all discovery should be conducted within 90-120 days of the date of the scheduling conference, again absent ex- traordinary circumstances. That should include expert discovery. Parties and litigants should be in- formed that dispositive motions should be filed within 15-30 days after the comple- tion of discovery. The deadlines established [*7] by the district judge could not be met if cases routinely are stayed while mo- tions to dismiss are pending. Nor does the pendency of a run-of-the-mill motion to dismiss for failure to state a claim under Rule 12(b)(6), as here, constitute "extraor- dinary circumstances" within the contemplation of Judge Figa's instructions. Notwithstanding the agreement of the parties that they would prefer a stay, the more general interests of controlling the court's docket and the fair and speedy administration of justice require that the Motion to Stay be denied. IT IS ORDERED that the Motion to Stay is DE- NIED. Dated March 2, 2007. BY THE COURT: S/ Boyd N. Boland United States Magistrate Judge Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 4 of 26 Page 1 Positive As of: Apr 07, 2017 MICHAEL A. COLLINS, an individual, Plaintiff, v. ACE MORTGAGE FUNDING, LLC, and its employees, agents and affiliates, individually, COUNTRYWIDE HOME LOANS, INC., a/k/a COUNTRYWIDE HOME LOANS SERVICING, LP, and its employees, agents and affiliates, individually, Defendant(s). Civil Action No. 08-cv-01709-REB-KLM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2008 U.S. Dist. LEXIS 87503 October 1, 2008, Decided SUBSEQUENT HISTORY: Objection overruled by, Motion denied by, Claim dismissed by, Motion granted by, Motion denied by, As moot, Summary judgment de- nied by Collins v. Ace Mortg. Funding, LLC, 2009 U.S. Dist. LEXIS 54488 (D. Colo., June 23, 2009) CORE TERMS: weigh, public interest, undue burden, convenience, discovery, nonparties, immunity, oppose, prompt, disclosures, scheduling COUNSEL: [*1] Michael A. Collins, individually, Plaintiff, Pro se, Aurora, CO. For Ace Mortgage Funding, LLC, and its employees, agents and affiliates, individually, Defendant: Diego G. Hunt, Holland & Hart, LLP-Denver, Denver, CO. For Countrywide Home Loans, Inc., and its employees, agents and affiliates individually, also known as Coun- trywide Home Loans Servicing LP., Defendant: Eric Paul Accomazzo, LEAD ATTORNEY, Eric Raymond Coakley, Bloom, Murr & Accomazzo, P.C., Denver, CO. JUDGES: Kristen L. Mix, United States Magistrate Judge. OPINION BY: Kristen L. Mix OPINION ORDER DENYING MOTION TO STAY ENTERED BY MAGISTRATE JUDGE KRIS- TEN L. MIX This matter is before the Court on Defendants' Joint Agreed Motion to Stay Discovery Including Ini- tial Disclosures [Docket No. 25; Filed September 30, 2008] (the "Motion"). Defendants inform the Court that Plaintiff, pro se, does not oppose the Motion. IT IS HEREBY ORDERED that the Motion is DENIED for the reasons set forth below. Regardless of the parties' agreement to stay the case until determination of the pending motions to dismiss [Docket Nos. 12 & 19], stays are generally disfavored in this District. See Wason Ranch Corp. v. Hecla Mining Co., No. 07-cv-00267-EWN-MEH, 2007 U.S. Dist. LEX- IS 41174, 2007 WL 1655362, at *1 (D. Colo. June 6, 2007) [*2] (unpublished decision). However, a stay may be appropriate in certain circumstances, and the Court weighs several factors in making a determination regarding the propriety of a stay. See String Cheese In- cident, LLC v. Stylus Show, Inc., No. 05-cv-01934, 2006 U.S. Dist. LEXIS 97388, 2006 WL 894955, at * 2 (D. Colo. Mar. 30, 2006) (unpublished decision) (denoting a five-part test). The Court considers (1) the interest of Plaintiff; (2) the burden on Defendants in going forward; (3) the Court's convenience; (4) the interest of nonpar- Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 5 of 26 Page 2 2008 U.S. Dist. LEXIS 87503, * ties, and (5) the public interest in general. Id. Here, those factors weigh against entry of a stay. Although Plaintiff does not oppose the Motion or ar- ticulate an interest in proceeding expeditiously with his case, the Court has generally found that with the passage of time, the memories of the parties and other witnesses may fade, witnesses may relocate or become unavailable, or documents may become lost or inadvertently de- stroyed. As such, delay may diminish Plaintiff's ability to proceed. By contrast, Defendants do not suggest any undue burden in proceeding with the case. The ordinary burdens associated with litigating a case do not constitute undue burden. Although Defendants have [*3] pending motions to dismiss which may dispose of Plaintiff's case, these motions are not based on grounds typically war- ranting the imposition of a stay. For instance, while Courts have frequently imposed a stay when issues re- lating to jurisdiction or immunity have been raised, mo- tions relating to a failure to state a claim are not unique nor do they raise similar concerns that the defendants are unnecessarily subject to litigation. Cf. Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991) (noting that immunity is a threshold issue and discovery should not be allowed while the issue is pend- ing); Gilbert v. Ferry, 401 F.3d 411, 415-16 (6th Cir. 2005) (finding stay permissible pending ruling on dis- positive motion involving jurisdictional issue). On bal- ance, the Court finds that the consideration of these two factors weighs against the imposition of a stay in this case. The Court also considers its own convenience, the interest of nonparties, and the public interest in general. None of these factors prompts the Court to reach a dif- ferent result. The Court is inconvenienced by an ill-advised stay because the delay in prosecuting the case which results from imposition of a stay makes the Court's [*4] docket less predictable and, hence, less manageable. This is particularly true where there is a pending motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), for which ultimate success is not guaranteed. While the Court iden- tifies no particular interest of persons not parties in the litigation, the Court identifies a strong interest held by the public in general regarding the prompt and efficient handling of all litigation. Under these circumstances, the Court finds that a stay of the case is not warranted. IT IS FURTHER ORDERED that the Court sua sponte extends the deadline for the parties to exchange their initial disclosures to no later than October 10, 2008. The parties are reminded of their obligation to comply with my Order of August 13, 2008 [Docket No. 5] setting a Scheduling Conference in this matter for October 8, 2008 at 9:30 a.m. and requiring the produc- tion of a proposed scheduling order and confidential set- tlement statements in advance of the conference. Dated: October 1, 2008 BY THE COURT: /s/ Kristen L. Mix United States Magistrate Judge Kristen L. Mix Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 6 of 26 Page 1 Cited As of: Apr 07, 2017 NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Pe- titioner, -against- ODYSSEY AMERICA REINSURANCE CORP., Respondent. 05 Cv. 7539 (DAB) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2009 U.S. Dist. LEXIS 108318 November 18, 2009, Decided November 18, 2009, Filed CORE TERMS: arbitrator, attorneys' fees, arbitration, invoice, choice of law, arbitral, premium, reinsurance, award of attorneys' fees, punitive damages, supple- mental, coverage, manifest, vacate, settlement, arbitra- tion panel, unredacted, quotation, prehearing, billed, agreement to arbitrate, misconduct, punitive, impermis- sible, email, substantive law, arbitration agreement, arbi- tration proceeding, award of punitive damages, award attorneys' fees JUDGES: [*1] Deborah A. Batts, United States Dis- trict Judge. OPINION BY: Deborah A. Batts OPINION MEMORANDUM & ORDER DEBORAH A. BATTS, United States District Judge. Petitioner National Union Fire Insurance Company of Pittsburgh, PA. moves to vacate a supplemental arbi- tration award of attorneys' fees to Respondent Odyssey America Reinsurance Corporation. Respondent cross-moves to request attorneys' fees for its defense of the instant motion. For the following reasons, both mo- tions are DENIED. I. BACKGROUND On July 1, 1997, American International Group, Inc. ("AIG") affiliates and subsidiaries, National Union Fire Insurance Co. ("National Union") and Starr Excess Lia- bility Insurance Co. ("Starr"), 1 entered into a reinsurance contract (the "Treaty") 2 with Odyssey America Reinsur- ance Corp. ("Odyssey"). (See the Treaty, Pet's Mem., Ex. A-1.) Under the Treaty, after an initial $ 5,000.000.00 paid by National Union, Odyssey would reinsure up to 19% of National Union's remaining ultimate net losses, up to $ 20,000,000.00 per insured, per year. (Id.) The Treaty defined ultimate net loss as "losses sustained by [National Union]" minus any recoveries. (Id.). The Trea- ty further states that, "[a]ll disputes or differences arising [*2] out of the interpretation of this Contract shall be submitted to [arbitration]". (Id.) The Treaty provides that, "[t]he arbitration proceeding shall take place in New York, New York" and "[t]he arbitrators and umpire are relieved from all judicial formality and may abstain from the strict rules of the law; however, punitive damages shall not be awarded. They shall settle any dispute under the Contract according to an equitable rather than a strict legal interpretation of its terms". (Id.) 1 Starr was acquired by National Union on August 1, 1998. (Petitioner's Prehearing Brief, Pet's Mem., Ex. H-1 at 7.) Starr is also reinsured by National Union. (Id.) Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 7 of 26 Page 2 2009 U.S. Dist. LEXIS 108318, * 2 "Treaty" is a shorthand title adopted by both National Union and Odyssey. The Treaty's actual title is "Miscellaneous Errors and Omissions Ex- cess of Loss Reinsurance Contract." (Pet's Mem., Ex. A-1.) (See also Pet's Mem. at 2 & Resp's Mem. at 3.) The Treaty was originally a contract between National Union, Starr, and TIG Rein- surance Company. However, TIG was acquired by Odyssey. (Pet's Mem. at 2.) The Treaty's reinsurance coverage included a mal- practice insurance policy issued by National Union and Starr to Towers, Perrin, Forster & Crosby, [*3] Inc. ("Towers Perrin"), an actuarial consulting firm. (Pet's Mem. at 3; Resp's Mem. at 3.) During January of 2001, Towers Perrin's pension fund client, the Los Angeles County Employees Retirement Association ("LAC- ERA"), brought a $ 528,000,000.00 malpractice suit al- leging that Towers Perrin made two calculation errors while acting as LACERA's actuary which resulted in an under-estimation of projected liabilities. (Pet's Mem., Ex. H-1 at 4-5.) In November, 2002, following the denial of a motion for summary judgment by Towers Perrin, LACERA and Towers Perrin pursued settlement. (Id.) On January 29, 2003, LACERA made a $ 151,900,000.00 settlement demand. (Id. at 6.) Facing "a potentially firm-destroying judgment at trial", Towers Perrin began negotiating a structure for paying LACERA's settlement demand with its insurers, National Union and Starr (Resp's Mem. at 6; Pet's Mem., Ex. H-1 at 5-6), and National Union retained counsel to investigate LACERA's claim against Towers Perrin." (Resp's Mem. at 3-4.) Based on its investigation, Nation- al Union notified Towers Perrin that National Union had a "known loss" defense which might permit denial of coverage for the LACERA settlement. (Resp's [*4] Mem. at 4; Balmuth Email, Resp's Mem., Ex. 76; Set- tlement Proposal Letter, Resp's Mem., Ex. 89.) On April 11, 2003, National Union, Starr, and Tow- ers Perrin formed an agreement (the "Agreement") in which National Union and Starr would pay $ 30,000,000.00 and $ 25,000,000.00 towards the LAC- ERA settlement, respectively. (Agreement, Pet's Mem., Ex. B at 2.) The Agreement also stipulated that National Union and Starr would insure Towers Perrin from July 1, 2002 through July 1, 2005, and that Towers Perrin would pay a total of $ 12,900,00.00 in annual insurance pre- miums through July 2004. 3 (Pet's Mem., Ex. B at 5-6.) Towers Perrin also agreed to "pay a one-time additional premium" of $ 15,000,000.00 which could be character- ized, upon Towers Perrin's option, as made to National Union or AIG and Starr. (Id. at 6.) According to Odys- sey, $ 12,000,000.00 of that additional premium went to National Union. (Prehearing Brief of Odyssey America Reinsurance Corporation, Pet's Mem., Ex. H-2 at 23, 31.) Thereafter, with National Union and Starr's approval, Towers Perrin and LACERA settled for $ 150,000,000.00 on March 20, 2003. (Pet's Mem., Ex. H-1 at 7.) 3 The annual insurance premium option spe- cifically [*5] provided that the following pay- ments would be made: $ 4,200,000.00 upon exe- cution of the Agreements to provide coverage for July 1, 2002 through July 1, 2003; $ 4,200,000.00 by July 16, 2003 to provide coverage for July 1, 2003 through July 1, 2004 and $ 4,500,000.00 by July 16, 2004 to provide coverage for July 1, 2004 through July 1, 2005. (Pet's Mem., Ex. B at 5-6.) Alternatively, Towers Perrin had the option of making a one-time premium payment of $ 12,110,000.00 upon execution of the Agreement. (Id.) Pursuant to the Treaty's requirement that Odyssey reinsure National Union for 19% of National Union's ultimate net losses up to $ 20,000,000.00 -- on April 29, 2003, National Union billed Odyssey for $ 3,800,000.00 (the "bill"). (Guy Carpenter & Co. Invoice, Resp's Mem., Ex. 142.) National Union asserts that it paid a total of $ 55,000,000.00 toward the LACERA settlement -- $ 30,000,000.00 for its own coverage under the Agreement and, as Starr's reinsurer, 4 $ 25,000,000.00 for Starr's coverage. (Pet's Mem. at 3.) As a result, "[N]ational Un- ion billed Odyssey for $ 3,800,000.00, Odyssey's 19% share of a full limits loss of $ 20,000,000.00 [under] the [T]reaty." (Resp's Mem. at 4.) 4 "Pursuant [*6] to a Quota Share Reinsur- ance Treaty between Starr and National Union . . ., National Union agreed to reinsure Starr for [l]osses paid under policies issued by Starr." (Pet's Mem., Ex. H-1 at 7.) After receiving the bill, Odyssey "asked to review the files relevant to [National Union's reinsurance] claim" in order to validate the bill. (Resp's Mem. at 9; Pet's Mem., Ex. H-2 at 16.) "On June 12, 2003, Odys- sey's claim handler reviewed [National Union's] files and discovered a draft of the Agreement." (Resp's Mem. at 9; Pet's Mem., Ex. H-2 at 16.) Thereafter, a dispute arose between National Union and Odyssey regarding what amount Odyssey should have been billed. National Union contends that it did not deduct the payment it received from Towers Perrin because Nation- al Union concluded that the payment was ". . . additional premium for providing . . . going forward coverage over three years." (Pet's Mem. at 5.) In contrast, Odyssey as- serts that "National Union . . . improperly inflated its bill to Odyssey for the LACERA loss by failing to offset" Towers Perrin's $ 12,000,000.00 payment to National Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 8 of 26 Page 3 2009 U.S. Dist. LEXIS 108318, * Union. (Resp's Mem. at 4; see also Resp's Mem. at 9.) National Union did not respond to Odyssey's [*7] re- quest for further information, (Resp's Mem. at 9-10; Pet's Mem., Ex. H-2 at 17), and instead invited Odyssey to a meeting to discuss the Towers Perrin claim. (Resp's Mem. at 10; Pet's Mem., Ex. H-2 at 18.) At the August 27, 2003 meeting, Odyssey requested information re- garding the Agreement and, according to Odyssey, none was given. (Resp's Mem. at 10; Wacek Letter, Resp's Mem., Ex. 160.) On January 20, 2004, National Union served Odys- sey with an arbitration demand. (Pet's Mem. at 4.) On April 6, 2004, Odyssey notified National Union that it had seen a draft of the Agreement. (Resp's Mem. at 10; Rubin Letter, Resp's Mem., Ex. 169.) Then, in a letter dated April 29, 2004, National Union acknowledged the Agreement's existence, and stated that the Agreement was confidential information that required Towers Per- rin's approval before being disclosed to Odyssey. (Resp's Mem. at 10; Keogh Letter, Resp's Mem., Ex. 171.) An arbitration hearing was held between April 4 and April 8, 2005 (the "Hearing") in order to determine the amount of losses, if any, for which the Treaty required Odyssey to reimburse National Union. (Resp's Mem. at 12.) The Hearing included prehearing brief submissions, testimony [*8] from eight witnesses, ten deposition submissions, and over 200 exhibits. (Resp's Mem. at 12.) In its prehearing Brief, Odyssey asserted that Na- tional Union attempted to hide its $ 12,000,000.00 pay- ment from Towers Perrin, that National Union breached its contractual duty of good faith by overbilling Odyssey, and that Odyssey should be awarded attorneys' fees cov- ering its arbitration costs, "with the exception of those costs that were required to be shared under the arbitration agreement." (Id.; See also Pet's Mem., Ex. H-2 at 2.) In National Union's Prehearing Reply Brief, it asserted that Odyssey sought unsubstantiated "punitive damages in the form of a request to get out of paying millions of dollars it had been contractually obligated to pay . . . plus attor- neys' fees." (Petitioners' Prehearing Reply Brief, Pet's Mem., Ex. H-3 at 14.) After the hearing ended on April 8, 2005, "the Panel deliberated" and, on April 12, 2005, issued a ruling in Odyssey's favor, providing National Union with an award of $ 2,470,000.00. (Resp's Mem. at 12; Final Award, Pet's Mem., Ex. K.) The Panel also ordered that (1) National Union "reimburse [Odyssey] for its legal fees and costs expended during . [*9] . . arbitration," (2) Odyssey "submit its statement of legal fees and costs to National Union and the Panel," and (3) National Union raise any objections to Odyssey's statment of legal fees and costs. (Pet's Mem., Ex. K.) On April 27, 2005 Odyssey submitted a Statement of Fees and Costs for $ 702,901.00" (the "Fee State- ment"). (Resp's Mem. at 12; Pet's Mem. at 10; Odyssey's Statement of Fees and Costs, Pet's Mem., Ex. L.) Odys- sey's Fees Statement included a letter from Odyssey's counsel, Butler Rubin, generally describing the legal work performed for arbitration and resultant expenses, a spreadsheet showing Butler Rubin's document and depo- sition discovery, and invoices of Butler Rubin's legal work. (Pet's Mem., Ex. L.) Rubin's invoices described legal work according to American Bar Association activ- ity codes -- such as, "review/analyze" or "draft/revise" -- but all narrative descriptions were redacted. (Id.) Butler Rubin's letter explained that the narrative in- voice descriptions were redacted because "Buter Rubin's invoices reveal how Butler Rubin and Odyssey prepared the case for trial and are therefore privileged." (Id.) In addition, Butler Rubin stated that, "because Butler Rubin [*10] and [opposing counsel represent] Odyssey and [National Union], respectively, in other arbitrations, production of Butler Rubin's complete invoices . . . would provide [National Union] with unfair insight into Butler Rubin/Odyssey's thought process and method of case preparation." (Id.) On May, 12, 2005, National Union submitted [a] Memorandum in Opposition to Odyssey's Statement of Fees and Costs ('Opposition to Fee Statement'). (National Union's Memorandum in Opposition to Odyssey's Statement of Fees and Costs, Pet's Mem., Ex. M-1.) In its Opposition to Fee Statement, National Union asserted that an "attorneys' fee award constituted an impermissi- ble award of punitive damages" under the Treaty, New York law, and federal law. (Pet's Mem., Ex. M-1 at 3-4.). National Union also asserted that (1) Odyssey's requested attorneys' fees were punitive damages that are impermis- sible under the Treaty, (2) Odyssey did not prevail at the hearing and was, therefore, not entitled to attorneys' fees under both New York and federal law, and (3) Odyssey could not have received attorneys' fees because, under New York and federal law, attorneys' fees must be sup- ported by detailed time records. (Pet's Mem. [*11] at 11.) On May 19, 2005, "Odyssey submitted a Reply in Support of Statement of Fees and Costs . . ." which in- cluded an offer "to provide the Panel with unredacted invoices for an in camera [review]." (Odyssey's Reply in Support of Its Statement of Fees and Costs, Resp's Mem., Ex. U at 6, n.4.) The Panel ordered Odyssey to provide invoices for in camera review and, on June 21, 2005, Odyssey complied. (Email From Arbitrator Tobin, Pet's Mem., Ex. N-2; Butler Rubin Cover Letter, Resp's Mem., Ex. X.) Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 9 of 26 Page 4 2009 U.S. Dist. LEXIS 108318, * On June 28, 2005, the Panel issued a $ 702,091.00 supplemental award for attorneys' fees and costs to Od- yssey "less 50% of the amounts billed for travel time previously billed at 100% of attorneys' billing rates." (Pet's Mem. at 12; Resp's Mem. at 14.) In dissent, Arbi- trator Ronald S. Gass stated that (1) the Panel did not have the power to award attorneys' fees, (2) Odyssey and National Union did not agree to submit the issue of at- torneys' fees to the Panel, (3) the Panel was awarding punitive damages which were impermissible under the Treaty, and (4) there was a sufficient connection to New York to justify the application of New York procedural and substantive law which, if applied, would [*12] make an award for attorneys' fees impermissible (Sup- plemental Order, Pet's Mem., Ex. O.) On "the same day that the supplemental award was issued, National Union sent the Panel a letter, asserting that National Union had a due process right to obtain Odyssey's unredacted invoices "to verify the accuracy, reasonableness and necessity of the attorneys' fees." (Kushner Letter, Pet's Mem., Ex. P-1.) Similarly, on June 30, 2005, National Union sent the Panel an email noting National Union's continued objections to not being pro- vided access to Odyssey's unredacted invoices. (Kushner Email, Pet's Mem., Ex. P-3.) Despite such objections, the Panel denied National Union's requests. (Supplemental Order No. 2, Pet's Mem., Ex. R.) On July 8, 2005, Odyssey submitted a $ 682,938.85 amended invoice that, as ordered, incorporated a 50% reduction in Odyssey's billed travel costs. (Odyssey's Amended Invoice, Pet's Mem., Ex. Q.) National Union paid Odyssey the $ 682,938.85 supplemental award on August 9, 2005. (Resp's Mem. at 14.) On August 25, 2005, National Union filed the instant Motion to vacate the Panel's Supplemental Award with this Court. (Resp's Mem. at 14.) II. DISCUSSION A. Standard of Review The [*13] Second Circuit has established that an arbitrator's award will be given great deference. Duferco Intl. Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003). An arbitral award will not be vacated "merely because [the court] is convinced that the arbitration panel made the wrong call on the law." Wallace v. Buttar, 378 F.3d 182, 190 (2d Cir. 2004). The court should enforce the award, despite any "disagree- ment with it on the merits, if there is a barely colorable justification for the outcome reached." Id. (internal quo- tation marks omitted). The very limited review of arbitral awards is based on the belief that "[t]o interfere with this process would frustrate the intent of the parties, and thwart the usefulness of arbitration." Duferco, 333 F.3d at 389. The Federal Arbitration Act provides four bases on which a court may vacate an arbitral award, (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators. . .; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing. . . or in refusing to hear evidence pertinent and material to the controversy; or of [*14] 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. 9 U.S.C. § 10(a). In addition to the statutory bases, a court may also vacate an award when it "exhibits a 'manifest disregard' of the law." Stolt Nielsen SA v. AnimalFeeds Intl. Corp., 548 F.3d 85, 91 (2d Cir. 2008). B. 9 U.S.C. § 10(a) (4) A court may overturn an arbitral award, when "the arbitrators exceeded their powers". 9 U.S.C. § 10(a) (4) See also Banco de Seguros, 344 F.3d 255, 262 (2d Cir. 2003) (same). The principal question for the court to consider in making this determination is "whether the arbitrator's award draws its essence from the agreement to arbitrate. . ." Reliastar Life Ins. Co. v. EMC Nat'l Life Co., 564 F.3d 81, 85 (2d Cir. 2009) (internal quotation marks omitted). In Reliastar, the Second Circuit overruled a District Court's judgment that had vacated a portion of an arbitra- tion award due to its finding that the inclusion of attor- neys' fees in the award exceeded the arbitrator's authori- ty. The Second Circuit overturned [*15] the decision below despite the fact that the arbitration agreement ex- plicitly stated that each party was to bear the expense of its own "'outside attorneys' fees". Id. at 84. In determin- ing that the arbitrators were within their authority in awarding attorneys' fees, the court emphasized the broad language encompassed in the agreement to arbitrate. Id. at 86 ("a broad arbitration clause, such as the one in this case, confers inherent authority on arbitrators to sanction a party . . . and that such sanction may include an award of attorneys' or arbitrators' fees") (internal citations omitted). The language in the Reliastar agreement called Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 10 of 26 Page 5 2009 U.S. Dist. LEXIS 108318, * for arbitration, "[i]n the event of any disputes or differ- ences arising . . . between the parties with reference to any transactions under or relating in any way to this Agreement." Id. at 84. The Treaty in the instant case contains similarly broad language, providing that "[a]ll disputes or differ- ences arising out of the interpretation of this Contract shall be submitted to [arbitration]." (Ex. A-1 at 14.) However, unlike the agreement in Reliastar, the Treaty does not contain a provision stipulating that each party is to bear the expense of its own [*16] outside counsel. A fortiori in this matter, where there is no such provision, the arbitrator's award of attorneys' fees "drew its es- sence" from the broad language of the agreement to arbi- trate. Accordingly, the arbitrators here did not exceed their authority in awarding attorneys' fees to Odyssey. C. Purported Putativeness and Excessiveness of the Award National Union further contends that because "there is no contractual basis for the award of attorneys' fees, the award must necessarily be based on a finding of pu- nitive damages." (Pet's Mem. at 18.) Nevertheless, under similar circumstances the Second Circuit has determined that attorneys' fees awarded in an arbitration proceeding were more properly characterized as compensatory damages. Synergy Gas Co. v. Sasso, 853 F.2d 59, (2d Cir. 1988) (finding that attorneys' fees issued in arbitra- tion, even where arbitrator found party to have acted in bad faith, were not punitive damages prohibited under New York state law); AmeriCredit Fin. Servs. v. Oxford Mgmt. Servs.., 627 F. Supp. 2d 85, 96 (E.D.N.Y. 2008) (citing to Synergy for the same proposition). Here, the arbitration panel made no finding of bad faith. (Final Award, Pet's Mem., Ex. [*17] K.) Further, National Union's contention that the Court should infer that the fees were punitive from the mere fact that they were awarded despite National Union's supposed success on the merits, (Pet's Mem. at 17-19), is unavailing. Here, the $ 2,470,000.00 was the precise amount that Odyssey would have paid under the Treaty had the $ 12,000,000.00 portion of the premium been deducted from the $ 30,000,000.00 insurance payments of Nation- al Union to Towers Perrin. 5 Accordingly, the arbitration panel clearly agreed with Odyssey that the $ 12,000,000 premium should have been deducted from the $ 30,000,000.00 insurance loss, and thus it was Odyssey and not National Union that prevailed on the issue that was the primary basis for the dispute. 5 $ 30 Million (loss) - $ 12 Million (premium) - $ 5 Million (retention) = $ 13 Million x %19 = $ 2.47 Million. National Union also argues that the award was pa- tently oppressive and excessive. (Pet's Mem. at 19.) Na- tional Union bases this assertion on Sawtelle v. Waddell & Reed, Inc., 304 A.D.2d 103, 754 N.Y.S.2d 264 (N.Y. App. Div. Ist Dep't 2003) (reducing an award of punitive damages for lacking rational relation to compensatory damages because of disproportion [*18] to potential penalties for similar misconduct). Even assuming that New York law is controlling, National Union's reliance on Sawtelle is misplaced given that the award of attor- neys' fees in this matter was compensatory and not puni- tive. D. Manifest Disregard of the Law Vacation of an award based on the manifest disre- gard for the law standard is an extremely difficult burden for the movant to meet and occurs, "only in those ex- ceedingly rare instances where some egregious impro- priety on the part of the arbitrators is apparent." Stolt-Nielsen, 548 F.3d at 91-92 (internal quotations omitted) 6. The Second Circuit has applied a two-prong test to establish manifest disregard for the law, looking first to ensure that the law alleged to have been disre- garded was "well defined, explicit, and clearly applica- ble" and second, that the arbitrator was aware of the law but choose to "ignore or pay no attention to it." Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 209 (2d Cir. 2002) (internal citations omitted). 6 In response to the Supreme Court's decision in Hall St. Assocs., L.L.C. v. Mattel, Inc.., 552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008), the Second Circuit has found that the manifest disregard doctrine has survived, [*19] ". . .reconceptualized as a judicial gloss on the specific grounds for vacatur enumerated in sec- tion 10 of the FAA." Stolt-Nielsen, 548 F.3d at 94. National Union argues that the arbitral award was in manifest disregard of New York law, which does not allow an arbitrator to award attorneys' fees. N.Y. C.P.L.R. § 7513 (". . . the arbitrators' expenses and fees, together with other expenses, not including attorney's fees, in- curred in the conduct of arbitration, shall be paid as pro- vided in the award.") (emphasis added). See also Kidder, Peabody & Co. v. McArtor, 223 A.D.2d 502, 637 N.Y.S.2d 99, 101 (N.Y. App. Div. 1st Dep't 1996) (". . .attorney's fees may not be recovered in an arbitration under New York law unless they are expressly provided for in the arbitration agreement.") Although the agree- ment to arbitrate does not contain a choice of law provi- sion, National Union relies on dicta from a Supreme Court case to assert that New York law is controlling. (Pet's Mem. at 21); Mastrobuono v. Shearson Lehman Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 11 of 26 Page 6 2009 U.S. Dist. LEXIS 108318, * Hutton, 514 U.S. 52, 59, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995) ("[t]hus, if a similar contract, without a choice-of-law provision, had been signed in New York and was to be performed in New York, presumably 'the laws of the State [*20] of New York' would apply, even though the contract did not expressly so state."). However, even if Petitioner is correct as to choice of law, which the Court need not decide, Mastrobuono shows that attorneys' fees are not precluded under New York law in a context such as this. In Mastrobuono itself, the Supreme Court held that an arbitration panel, apply- ing New York law pursuant to a choice of law provision, could award punitive damages even though New York law prohibited such an award. Id. at 54-55. Respondents in that case had argued that the choice of law provision, by opting for New York law, evidenced an "express agreement that punitive damages should not be awarded in the arbitration of any dispute arising under their con- tract." Id. at 56. However, in determining that the agree- ment did not preclude an award of punitive damages, the Mastrobuono Court found that the choice of law provi- sion only applied to substantive law and not to ". . . deci- sional law, including that State's allocation of power be- tween courts and arbitrators." Id. at 60. In dicta, the Court also observed that without a choice of law provi- sion, "there would be nothing in the contract that could possibly constitute [*21] evidence of the intent to ex- clude punitive damages claims." Id. at 59. While unlike Mastrobuono, the issue here is attor- neys' fees rather than punitive damages, the Treaty be- tween National Union and Odyssey contains no choice of law provision that could be construed to evidence a clear intent on the part of the parties to preclude an arbitral award of attorneys' fees. Furthermore, even if the Treaty had contained a choice of law provision designating New York law, the ability of an arbitrator to award attorneys' fees is similarly not a matter of substantive law which would be subject to the choice of law provision, as the Second Circuit has since expanded on Mastrobuono in holding that a New York choice of law provision does not preclude an arbitral award of attorneys' fees. Pain- eWebber Inc. v. Bybyk, 81 F.3d 1193, 1202 (2d Cir. 1996) (citing Mastrobuono in holding that "a choice of law provision will not be construed to impose substan- tive restrictions on the parties' rights under the Federal Arbitration Act, including the right to arbitrate claims for attorneys' fees"). 7 7 As with the instant case, the agreement to ar- bitrate in Bybyk was very broad. Id., at 1202. ("The agreement provides [*22] that 'any and all controversies' shall be submitted to arbitration; there is no express limitation with respect to at- torneys' fees."). Accordingly, because there is no choice of law pro- vision here, and because Mastrobuono and Bybyk both stand for the proposition that New York law prohibiting an arbitral award of attorneys' fees is not applicable in the instant case, the law cited to by Petitioner is not "clearly applicable" and therefore the arbitrator could not have acted in manifest disregard of it. E. 9 U.S.C. § 10(a)(3) Finally, National Union argues that because its rights were prejudiced by not having access to unredact- ed invoices of opposing counsel's fees, the award should be vacated. (Pet's Mem. at 24-26.) A court may vacate an arbitral award upon a finding that the arbitrators engaged in "misconduct . . . in refusing to hear evidence pertinent and material to the controversy; or of any other misbe- havior by which the rights of any party have been preju- diced." 9 U.S.C. § 10(a)(3). In order to vacate an arbitral award on these grounds, the "misconduct must amount to a denial of fundamental fairness of the arbitration pro- ceeding." Roche v. Local 32B-32J Service Employees Intl. Union, 755 F. Supp. 622, 624 (2d Cir. 1991) [*23] (internal quotations omitted). Furthermore, "[i]n making evidentiary determinations, an arbitrator need not follow all the niceties observed by federal courts." Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997) (internal quotations omitted). "[A]n arbitrator must give each of the parties to the dispute an adequate opportunity to present its evidence and argument." Id. The decision to prevent National Union's access to unredacted invoices did not amount to a "denial of fun- damental fairness". The redacted invoices containing American Bar Association activity codes, as well as the fact that the arbitration panel conducted an in camera review of the unredacted invoices, provided National Union with "adequate opportunity to present its evidence and argument." Id. Furthermore, National Union was able to submit a Memorandum in Opposition to Odys- sey's Statement of Fees and Costs, challenging the fee award on several bases, and the panel subsequently de- cided to reduce the award by $ 19,152.15. Accordingly, there is no evidence whatsoever of misconduct or mis- behavior on behalf of the arbitration panel. F. Attorneys' Fees for This Motion "Under the prevailing American rule, in a [*24] federal action, attorney's fees cannot be recovered by the successful party in the absence of statutory authority for the award." International Chemical Workers Union, Lo- cal No. 227 v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir. 1985) (citing Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (U.S. 1975)). Nevertheless, "a court may award attorney's fees when the opposing counsel acts in Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 12 of 26 Page 7 2009 U.S. Dist. LEXIS 108318, * bad faith, vexatiously, wantonly, or for oppressive rea- sons." 774 F.2d at 47 (quotation omitted). Although the Court finds no merit to Petitioner's claims, the actions of National Union's counsel did not reach a level of conduct sufficient to give rise to further attorneys' fees in this matter. III. CONCLUSION For the foregoing reasons, Plaintiff's Motion to Va- cate Supplemental Arbitration Award is DENIED. Addi- tionally, Defendant's Cross-Motion to Award Attorneys' Fees is DENIED. Clerk of Court is directed to CLOSE the docket in this matter. SO ORDERED DATED: New York, New York November 18, 2009 /s/ Deborah A. Batts Deborah A. Batts United States District Judge Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 13 of 26 Page 1 Positive As of: Apr 07, 2017 STRING CHEESE INCIDENT, LLC., d/b/a BASELINE TICKETING, a Colorado limited liability company, Plaintiff(s), v. STYLUS SHOWS, INC., d/b/a THE SHAKEDOWN CAMPOUT & MUSIC FESTIVAL, a Florida corporation; HAL ABRAMSON, individually, PETER VAUGHN SHAVER, ESQ., HAVER & ASSO- CIATES, an Oregon law firm; and JOHN DOES NOS., I through X., Defendant(s). Civil Action No. 05-cv-01934-LTB-PAC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2006 U.S. Dist. LEXIS 97388 March 30, 2006, Decided March 30, 2006, Filed SUBSEQUENT HISTORY: Dismissed by String Cheese Incident Ticketing, LLC v. Stylus Shows, Inc., 2006 U.S. Dist. LEXIS 20928 (D. Colo., Apr. 14, 2006) CORE TERMS: discovery, personal jurisdiction, dis- closure, music festival, law firm, privileged documents, undue burden, public interest, expeditiously, under- signed, privileged, prejudiced, unduly, weigh, ticket COUNSEL: [*1] For String Cheese Incident Ticketing LLC, a Colorado limited liability company doing busi- ness as Baseline Ticketing, Plaintiff: Richard G. Sander, LEAD ATTORNEY, Paige Barbra Lawrence, Sander Ingebretsen & Parish, P.C., Denver, CO. President Hal R. Abramson, individually, Defendant, Pro se, Atlantis, FL. For President Hal R. Abramson, individually, Defendant: J. Gregory Whitehair, Gibson Dunn & Crutcher, LLP-Denver, Denver, CO. For Peter Vaughn Shaver Esq., Haver & Associates, an Oregon law firm and John Does Nos. I through X, De- fendants: Patrick Dale Tooley, LEAD ATTORNEY, Dill, Dill, Carr, Stonbraker & Hutchings, PC, Denver, CO. JUDGES: Patricia A. Coan, Magistrate Judge. OPINION BY: Patricia A. Coan OPINION ORDER Granting in Part and Denying in Part Shav- er and Haver & Associates' Motion for Stay of Dis- covery Patricia A. Coan, Magistrate Judge In this diversity case, plaintiff alleges, among other claims, that defendant Shaver, an Oregon attorney, mis- represented defendant Shakedown's financial status in connection with a music festival to be held in Oregon. The case was referred to the undersigned for pretrial case management on November 16, 2005 I. According to its statement in the Scheduling Order, plaintiff Baseline [*2] contracted to sell tickets for Shakedown for the Oregon music festival, but became concerned about Shakedown's financial viability after defendants Abramson and Stylus Shows began demand- ing unusual advances on ticket sales revenues. Baseline Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 14 of 26 Page 2 2006 U.S. Dist. LEXIS 97388, * asserts that, throughout the relevant time period, Shaver continually assured Baseline that Shakedown was fully capitalized. The music festival eventually was cancelled because defendants Abramson and Stylus allegedly did not pay the amount the venue for the festival required. At the Scheduling Conference, Shaver and Haver verbally moved for a stay of discovery, which was granted as to Haver only pending ruling on its motion to dismiss. See Scheduling Order, Doc. # 24 at 3. The day before, on January 31, 2006, Shaver and Haver had moved for a stay of discovery in writing, see Doc. # 23, and the motion was referred to the undersigned on Feb- ruary 6, 2006. That motion, defendants Shaver and Haver & Associates' (Haver) Motion to Stay Discovery Pursu- ant to Rule 26(c), Doc. # 23, is the matter now before the Court. Shaver and Haver argue that all discovery in this case should be stayed pending resolution of their motion to dismiss for lack of personal [*3] jurisdiction. They also claim that discovery directed to Shaver and his law firm would risk the disclosure of privileged information, see Reply at 2, and that they would be prejudiced by be- coming subject to the burden and expense of litigation even though the court has not yet ruled on the pending motion to dismiss. They ask that all disclosures and dis- covery be stayed until the court has determined whether it has jurisdiction over Shaver and Haver. Plaintiff objects to any stay, contending that de- fendants have failed to cite any authority on point that would authorize a broad stay of discovery, and that a discovery stay would only be appropriate if the case were fully concluded as a result of ruling on the motion to dismiss, relying upon Greeley Publishing Co. v. Hergert, 233 F.R.D. 607, 2006 WL 305510 (D. Colo. 2006)(internal citation omitted). Plaintiff contends that: 1) the case will not be concluded by a ruling on these defendants' motion to dismiss because even if they are dismissed, plaintiff will continue its claims against the other defendants; 2) discovery will aid in responding to the issues in defendants' motion to dismiss; and 3) dis- covery will not be unduly wasteful or burdensome. Plaintiff [*4] also claims that Shaver's actions in Colo- rado are clearly sufficient to establish personal jurisdic- tion and that, because his actions are imputed to the law firm of Haver & Associates, Haver also should remain as a defendant. See Pl. Resp. at 2-3. Finally, plaintiff claims prejudice if discovery is stayed indefinitely. II. The Federal Rules of Civil Procedure do not ex- pressly provide for a stay of proceedings. Rule 26(c) does however, permit the court to "make any order which justice requires to protect a party ... from annoyance, embarrassment, oppression, or undue burden or ex- pense." See Fed.R.Civ.P. 26(c)(2005). I find that sub- jecting a party to discovery when a motion to dismiss for lack of personal jurisdiction is pending may subject him to undue burden or expense, particularly if the motion to dismiss is later granted. In order to evaluate Shaver and Haver's motion for stay, I may weigh the following interests: (1) plaintiff's interests in proceeding expeditiously with the civil action and the potential prejudice to plaintiff of a delay; (2) the burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties to the civil litigation; and (5) the [*5] public interest. See e.g., Federal Deposit Ins. Corp. v. Renda, No. 85-2216-0, 1987 U.S. Dist. LEXIS 8305, 1987 WL 348635, at *2 (D.Kan. 1987)(unpublished disposition). In this action, discovery began on or about February 1, 2006 and the discovery deadline is September 15, 2006. Shaver and Haver's motion to dismiss was filed December 20, 2005 and is now fully briefed. Applying the Renda factors, I find that: 1) to grant defendants' mo- tion could delay the proceedings for an unknown period of time until there is a ruling on the pending motion and that the delay would significantly impact and prejudice plaintiff's "right to pursue [its] case and vindicate its claim expeditiously" id. (citing Golden Quality Ice Cream Co., Inc. v. Deerfield Specialty Papers, 87 F.R.D. 53, 56 (E.D.Pa.1980); 2) defendants, however, also would undoubtedly be prejudiced if they were forced to engage in discovery if the court eventually granted their motion to dismiss; 3) it is generally the court's practice not to stay cases; 4) if the motion for stay were denied, an in camera review of allegedly privileged documents as well as a suitable protective order could ensure that certain privileged documents would not be produced and that the confidentiality of any [*6] privileged materials ordered produced would be protected; 5) the court is inconvenienced if matters proceed in a piecemeal fashion which would occur if discovery proceeded against some, but not all, defendants; 6) if discovery were to be com- pleted between plaintiff and the other defendants before the Shaver and Haver motion to dismiss is ruled on, all parties would have to engage in a second round of dis- covery with Shaver and Haver if their motion to dismiss is denied; and 7) there is no evidence before me that third parties or the public interest are or may become involved in this case. Finally, I agree with plaintiff's arguments only to the extent that, even if discovery were stayed against Shaver and Haver and their motion to dismiss is granted, the case would proceed against the remaining defendants. After considering counsels' arguments and the Ren- da factors, I find that a thirty day stay to allow for the potential of a ruling on the motion to dismiss will not Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 15 of 26 Page 3 2006 U.S. Dist. LEXIS 97388, * unduly prejudice either side. Thereafter, however, more factors weigh in favor of proceeding with discovery ra- ther than imposing either an indefinite stay of all discov- ery or a stay in favor of Shaver and Haver & [*7] As- sociates. IV. Accordingly, for the reasons stated, it is hereby ORDERED that defendants Shaver and Haver & Associates' Motion to Stay Discovery Pursuant to Rule 26(c), Doc. # 23, is granted in part and denied in part as follows. It is further ORDERED that discovery against Shaver and Ha- ver & Associates only is stayed until April 30, 2006 and that the stay is lifted as of May 1, 2006. It is further ORDERED that, to the extent they have not previ- ously done so, Shaver and Haver will produce Rule 26(a)(1) disclosures to opposing counsel no later than May 10, 2006. Dated this 30th day of March 2006. By the Court: s/ Patricia A. Coan Patricia A. Coan Magistrate Judge Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 16 of 26 Page 1 JASON URQUHART and DOUG URQUHART, Petitioners, v. HERBERT C. KURLAN and VTRADER PRO, LLC, Respondents. No. 16 C 2301 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 2017 U.S. Dist. LEXIS 28601 February 28, 2017, Decided February 28, 2017, Filed CORE TERMS: arbitrator, arbitration, arbitration award, attorneys' fees, vacate, arbitration panel, session, arbitrators exceeded, arbitrator's decision, fundamentally, subpoena, fair hearing, misrepresentation, clarification, postponement, postpone, trading, jointly, claimants, final award, citations omitted, statement of claim, reasonable basis, severally liable, personal knowledge, opportunity to present, apportionment, overturning, questioning, misconduct COUNSEL: [*1] For Jason Urquhart, Doug Urquhart, Plaintiffs: Michael Gideon Brown, LEAD ATTORNEY, PRO HAC VICE, Figari Davenport, LLP, Dallas, TX; Parker D. Young, LEAD ATTORNEY, PRO HAC VICE, Figari + Davenport, LLP, Dallas, TX; Michael Daehyun Lee, Howard & Howard Attorneys PLLC, Chicago, IL. For Herbert C. Kurlan, VTrader Pro, LLC, Defendants: David Albert Genelly, LEAD ATTORNEY, Vanasco, Genelly & Miller, Chicago, IL. JUDGES: SARA L. ELLIS, United States District Judge. OPINION BY: SARA L. ELLIS OPINION OPINION AND ORDER Alleging that Respondents Herbert C. Kurlan and VTrader Pro, LLC ("VTrader") engaged in actions that caused Petitioners Jason and Doug Urquhart (collective- ly, the "Urquharts") to lose over $4 million that they had in their trading accounts, the Urquharts instituted an ar- bitration proceeding against Kurlan and VTrader. An arbitration panel rendered a final award in favor of the Urquharts, prompting the Urquharts to file this action seeking confirmation of the award pursuant to the Fed- eral Arbitration Act ("FAA), 9 U.S.C. § 1 et seq.1 Kurlan and VTrader responded by filing a motion to vacate the arbitration award.2 Kurlan and VTrader contend that the arbitrators exceeded the scope of their powers, failed to render a definite and final [*2] award, and did not con- duct a fundamentally fair hearing. The Court rejects all of Kurlan and VTrader's arguments but one. Because the Court finds the apportionment of the award between the Urquharts, on the one hand, and Kurlan and VTrader, on the other, ambiguous, the Court remands this case to the arbitration panel for clarification on this discrete issue. The Court denies the Urquharts' motion to confirm the arbitration award without prejudice to renewal after the panel clarifies the award. 1 The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332. The parties have confirmed that they are citizens of different states, providing additional details about the citizenship of VTrader's members as requested by the Court. See Docs. 40, 41. 2 Kurlan and VTrader filed an initial motion, Doc. 20, and then an amended application to va- cate the award, Doc. 26-1, which corrects typo- graphical errors and adds jurisdictional and venue allegations, see Doc. 26. The Court granted leave to file the amended application. See Doc. 30. Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 17 of 26 Page 2 2017 U.S. Dist. LEXIS 28601, * BACKGROUND VTrader was a Chicago Board Options Exchange, Inc. ("CBOE") member and trading permit holder regis- tered with the Financial Industry Regulatory Authority. It operated from 2003 until it liquidated its business in 2013. Kurlan was VTrader's managing member and made all material decisions. VTrader contracted with Merrill Lynch Professional Clearing Corporation ("Merrill Lynch") to establish a joint back office operation. This allowed VTrader to pool capital in a non-segregated environment, meaning that profits and losses of individual member traders were netted against one another. VTrader had Class A and Class B members. Texas Capital Management ("TCM") became a Class B member [*3] in 2006. TCM was formed and controlled by Michael DeNio. TCM had its own members, including the Urquharts, who each opened individual sub-accounts with TCM in 2007. Ja- son was designated as the trader on both accounts, and the two were considered a single trading unit. The amounts in the Urquharts' and VTraders' accounts fluc- tuated. According to the Urquharts, in 2011, their ac- counts grew to over $4 million. VTrader allowed the Urquharts to withdraw $900,000 from their accounts between January and April 2011. After this, however, the Urquharts were not able to withdraw any additional amounts. Instead, in September 2011, VTrader liquidated all positions, including those held by the Urquharts, to address shortages in other VTrader accounts. On or about October 31, 2012, the Urquharts filed a statement of claim against Kurlan, VTrader, and Merrill Lynch demanding arbitration, alleging negligent misrep- resentation, fraudulent inducement and concealment, unjust enrichment, promissory estoppel, breach of fidu- ciary duty and good faith and fair dealing, and violations of industry rules and regulations.3 The Urquharts claimed, among other things, that Kurlan and VTrader made material misrepresentations [*4] to induce the Urquharts to continue trading, all the while knowing the status of other VTrader accounts that would ultimately lead the Urquharts not to realize the profits from their trading activities. The Urquharts requested monetary damages, pre- and post-award interest, forum fees, and all other relief to which they were entitled. The parties agreed to submit the dispute to arbitration pursuant to the CBOE's rules of arbitration. The arbitration panel was constituted on December 23, 2013. 3 The Urquharts claimed Merrill Lynch was liable for aiding and abetting in addition to the other claims. Merrill Lynch challenged the ability to arbitrate the claim and was dismissed from the case on December 10, 2013. The arbitration hearing took place from November 2 through 6, 2015, with an additional session on November 30, 2015. Kurlan represented himself and VTrader pro se for the first week of proceedings because their attorney withdrew shortly before the beginning of the hearings. Kurlan obtained an attorney, Shane Wachtel, to represent him individually shortly after the week of hearings con- cluded, providing Kurlan with representation for the final November 30 session. Both Kurlan and Wachtel repeat- edly asked for additional time to prepare and present a defense, but the arbitration panel rebuffed those requests. Over the course of the hearing, the Urquharts testi- fied themselves and called Kurlan as a witness. [*5] They also called an expert, Ed Keiley, and had their counsel, Michael Brown, testify concerning the attor- neys' fees. Kurlan and VTrader called three witnesses: Gary Anderson, a fact witness and expert, Mark Bold, an industry expert, and Mark Duffy, an industry and legal expert. Kurlan also recalled Jason to testify on November 30. Kurlan and VTrader complained that they were not able to present the testimony of DeNio or Donald Man- kin, VTrader's accountant. But at the close of the hear- ing, Wachtel affirmed to the panel that Kurlan had pre- sented his case the best he could. On February 8, 2016, the arbitration panel rendered its final award in favor of the Urquharts and against Kurlan and VTrader in the total amount of $5,405,958.96, broken down as follows: (1) $3,860,265.00 in compensatory damages and pre-award interest; (2) $1,182,205.00 in attorneys' fees; (3) $360,488.96 in punitive damages; and (4) $3,000.00 in forum fees. The award remains outstanding. ANALYSIS Under the FAA, the Court must confirm the arbitra- tion award unless certain statutory exceptions, as set forth in §§ 10 and 11 of the FAA, apply. 9 U.S.C. § 9. The Court addresses whether the exceptions that Kurlan and VTrader raise prevent confirmation [*6] in this case. I. Alleged Issues with Definiteness and Scope of Award Section 10(a)(4) provides that the Court may vacate an arbitration award where the arbitrators "exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submit- ted was not made." 9 U.S.C. § 10(a)(4). The Court's re- view is extremely limited, with Kurlan and VTrader bearing a heavy burden. Oxford Health Plans LLC v. Sutter, U.S. , 133 S. Ct. 2064, 2068, 186 L. Ed. 2d 113 (2013). The Court may only vacate the award if the arbitrators acted outside the scope of their authority, Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 18 of 26 Page 3 2017 U.S. Dist. LEXIS 28601, * i.e., if they issued an award that "does not draw its es- sence from the agreement between the parties." Yasuda Fire & Marine Ins. Co. of Europe, Ltd. v. Cont'l Cas. Co., 37 F.3d 345, 349 (7th Cir. 1994). "[T]hinly veiled attempts to obtain appellate review of the arbitrator's decision . . . [are] not permitted under the FAA." Gingiss Int'l, Inc. v. Bormet, 58 F.3d 328, 333 (7th Cir. 1995). "Factual or legal error, no matter how gross, is insuffi- cient to support overturning an arbitration award." Halim v. Great Gatsby's Auction Gallery, Inc., 516 F.3d 557, 563 (7th Cir. 2008); see also Oxford Health Plans, 133 S. Ct. at 2068 ("[T]he sole question for us is whether the arbitrator (even arguably) interpreted the parties' con- tract, not whether he got its meaning right or wrong."). The Seventh Circuit has also indicated that the "mu- tual" and "final" requirement means that "the arbitrators must have resolved the entire dispute (to the extent arbi- trable) that had been submitted to them" and the "defi- nite" [*7] requirement means that "the award is suffi- ciently clear and specific to be enforced should it be con- firmed by the district court and thus made judicially en- forceable." IDS Life Ins. Co. v. Royal Alliance Assocs., Inc., 266 F.3d 645, 650 (7th Cir. 2001). Stated another way, an arbitration award is unenforceable if it "is either incomplete in the sense that the arbitrators did not com- plete their assignment (though they thought they had) or so badly drafted that the party against whom the award runs doesn't know how to comply with it." Smart v. Int'l Bhd. of Elec. Workers, Local 702, 315 F.3d 721, 725 (7th Cir. 2002). These requirements "are ones more of form than of substance . . . not to be confused with whether the arbitrators' award was correct or even rea- sonable, since neither error nor clear error nor even gross error is a ground for vacating an award." IDS Life Ins. Co., 266 F.3d at 650. A. Indefiniteness of the Award First, Kurlan and VTrader argue that the Court should vacate the award because it is indefinite. Specifi- cally, they complain that the arbitrators did not apportion the award between the claimants (the Urquharts) or the respondents (Kurlan and VTrader), nor did they indicate whether they intended for the award to impose joint and several liability on Kurlan and VTrader. This, according to Kurlan and VTrader, makes the award ambiguous, leaving it unclear who is to [*8] pay what part of the award and who is to receive what part of the award. The award reads: After due deliberation and in consider- ation of the hearing testimony, documen- tary evidence, and other submissions made by the parties, the undersigned arbi- trators, in full and final resolution of all issues in controversy, award as follows: 1. Claimants' request for compensa- tory damages is GRANTED, in part, in the total amount of $3,860,265. 2. Claimants' request for attorney fees is GRANTED in the total amount of $1,182,205. 3. Claimants' request for punitive damages is GRANTED in the amount of $360,488.96. 4. Respondent shall pay all filing and forum fees as detailed below. Doc. 21-2 at 267. The discussion of filing fees uses the term "Respondents" (plural) instead of "Respondent" (singular) as used in the award section. Kurlan and VTrader appear to suggest that this could mean that the arbitrators did not intend for the compensatory damages award to be against both of them where the arbitrators promised to resolve the issue of Kurlan's individual lia- bility in rendering their decision. The Urquharts argue that no ambiguity exists: they submitted their claims together and requested that VTrader and [*9] Kurlan be held jointly and severally liable. See Doc. 28-2 at 24 (request for relief in statement of claim states "the Urquharts request that the Arbitrators enter a final award against Respondents, jointly and sev- erally, awarding them (a) all damages suffered as a result of Respondents['] conduct"). Although they held separate accounts, the Urquharts point out that they traded to- gether, with Jason acting as the designated trader for both accounts. Taken together with the fact that both sides acted as if each side consisted of one party,4 the Urquharts argue that the award has only one reasonable interpretation: that Kurlan and VTrader are jointly and severally liable to the Urquharts, who may apportion the award between themselves as they see fit. But because the Court cannot definitively resolve the ambiguity from the record, the Court finds it appropriate to remand the matter to the arbitrators for clarification. See Tri-State Business Machs., Inc. v. Lanier Worldwide, Inc., 221 F.3d 1015, 1017 (7th Cir. 2000) (where a court cannot resolve an ambiguity in an award from the record, it should remand it to the panel for clarification); NYKCool A.B. v. Pac. Fruit Inc., No. 10 Civ. 3867(LAK)(AJP), 2011 U.S. Dist. LEXIS 137769, 2011 WL 3666579, at *2 (S.D.N.Y. Aug. 9, 2011) (noting that the judge remanded arbitration award to arbitrators "to determine whether the [*10] respondents are jointly and severally liable for the entire amount of the award and, if not, the amount of the several liability of each"). Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 19 of 26 Page 4 2017 U.S. Dist. LEXIS 28601, * 4 This is not entirely true, for Wachtel entered his appearance only on behalf of Kurlan and not also to represent VTrader. B. Scope of the Award At the same time, the Court dispenses with Kurlan and VTrader's remaining arguments concerning the arbi- trators' actions in allegedly exceeding the scope of their powers in rendering the arbitration award. Specifically, Kurlan and VTrader claim that the arbitrators went be- yond the claims submitted to them for adjudication in making their award. They argue that the arbitrators must have found Kurlan liable on a federal securities law the- ory that the Urquharts did not plead in their statement of claim but argued during the hearing. Kurlan and VTrader also contend that the arbitrators should not have awarded attorneys' fees because no basis existed for such an award. Finally, they argue that no evidence demonstrated that Kurlan or VTrader owed the Urquharts any duty. The Court cannot address these arguments because they are inappropriate attempts to obtain appellate review of the arbitrators' decision. See Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704, 706 (7th Cir. 1994) ("[W]e do not allow the disappointed party to bring his dispute into court by the back door, arguing that he is entitled to appellate [*11] review of the arbitrators' de- cision."); Eljer Mfg., Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1255-56 (7th Cir. 1994) (rejecting argument that damages award should be vacated because it was barred by applicable law, noting that "whether or not the claim is permitted under the applicable law is irrelevant under 10(a)(4)" and that "mere error in the interpretation of the law (as opposed to failure to decide in accordance with relevant provisions of law) does not provide grounds for disturbing an arbitration award"); Boldischar v. Reliastar Life Ins. Co., No. 14 C 6844, 2016 U.S. Dist. LEXIS 97529, 2016 WL 3997596, at *5 (N.D. Ill. July 26, 2016) (rejecting argument that arbitrators exceeded powers and erred in awarding certain damages, finding that these claims of legal or factual mistakes were not valid bases for overturning an arbitrator's decision). Although the arbitrators rendered a general award, they were not re- quired to specify the bases for their award. See Heat En- ergy Advanced Tech., Inc. v. Standard Mach. & Equip. Co., No. 85 C 3613, 1986 U.S. Dist. LEXIS 28253, 1986 WL 3627, at *5 (N.D. Ill. Mar. 13, 1986) ("The arbitra- tor's 'lump sum' award to Standard Machine does not automatically fall due to its brevity. Arbitrators are not required to state the reasons for their awards."). And the Court cannot conclude from the decision that the arbitra- tors exceeded their powers and addressed an unpleaded federal securities law claim. See Geneva Sec. v. Johnson, 138 F.3d 688, 692 (7th Cir. 1998) ("The general pre- sumption in favor of arbitration compels courts to affirm even the most general awards. [*12] In cases involving multiple claims, however, such awards provide little ba- sis for courts to determine whether an award was based, at least in part, upon claims that the parties never agreed to arbitrate. . . . [I]t is insufficient for the appellants to show that the Johnsons submitted an ineligible claim for arbitration, and that the arbitration panel may have relied upon that claim in fashioning its award." (citations omit- ted)). Unlike in Geneva Securities, where the court found the arbitrators may have exceeded their powers by spe- cifically listing in their award a claim that was clearly time-barred, here, the award does not mention the federal securities law claims that Kurlan and VTrader suggest should not have been submitted to the arbitrators. Cf. id. at 692. Moreover, the Urquharts submitted their claim against Kurlan based on numerous theories and the Court refuses to delve into determining whether the facts or law supported personal liability on any of these theories. See Prime United Inc. v. Sears Holding Mgmt. Corp., No. 12 C 5364, 2013 U.S. Dist. LEXIS 98865, 2013 WL 3754829, at *3-4 (N.D. Ill. July 16, 2013) (refusing to vacate award based on alleged legal error where arbitra- tor did not provide reason for award, there was no way of knowing why arbitrator awarded amounts it did, and "it is not the province of the federal courts [*13] to exam- ine whether arbitrators' contract interpretations are cor- rect"). Finally, both sides requested attorneys' fees during the hearing, undermining Kurlan and VTrader's argument that the arbitrators exceeded their powers in awarding them. See Astanza Design, LLC v. Giemme Stile, S.p.A., F. Supp. 3d , 2016 U.S. Dist. LEXIS 173959, 2016 WL 7324266, at *5 (M.D.N.C. Dec. 15, 2016) (collecting cases of parties agreeing to submit attorneys' fees to ar- bitrators through their conduct, noting that "Defendants' attempt to walk back their requests for fees as having been made 'perfunctorily' . . . is, to say the least, uncon- vincing"); WMA Sec., Inc. v. Wynn, 105 F. Supp. 2d 833, 839 (S.D. Ohio 2000) ("It is manifestly inconsistent to request attorney fees and then to argue, after fees are awarded to the adverse party, that the panel lacked the power to award fees in the first place."). Additionally, the American Rule has not uniformly been applied in arbitrations, and regardless, attorneys' fees could have been awarded for the Urquharts' fraud or misrepresenta- tion claims. See Eljer Mfg., Inc., 14 F.3d at 1257 (refus- ing to apply American Rule to arbitration and finding award of attorneys' fees acceptable, noting that they may have been awarded "as damages for fraud or misrepre- sentation and not pursuant to a statute" as "Illinois law permits the recovery of attorneys' fees as damages if the plaintiff proves that the fees resulted [*14] from the defendant's misconduct and the fees are reasonable"); Wilson v. Sterling Foster & Co., No. 98 C 2733, 1998 Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 20 of 26 Page 5 2017 U.S. Dist. LEXIS 28601, * U.S. Dist. LEXIS 16913, 1998 WL 749065, at *6 (N.D. Ill. Oct. 15, 1998) (following Eljer to find that arbitrators could have awarded attorneys' fees "as damages for fraud or misrepresentation"). Alternatively, the arbitrators could potentially have awarded the attorneys' fees pur- suant to the CBOE arbitration rule that allows arbitrators to award "other costs and expenses," which mirrors New York Stock Exchange rules that have been interpreted in such a manner. See Prudential-Bache Secs., Inc. v. Tan- ner, 72 F.3d 234, 242-43 (1st Cir. 1995); Thomas v. Prudential Secs., Inc., 921 S.W.2d 847, 851 (Tex. App. 1996). Because of the Court's limited power to review the arbitrators' award, the Court does not find that Kurlan and VTrader have demonstrated that the arbitrators ex- ceeded their power because they only make arguments concerning legal or factual mistakes that do not qualify as valid bases for overturning an arbitrator's decision. See Boldischar, 2016 U.S. Dist. LEXIS 97529, 2016 WL 3997596, at *5 (finding that plaintiff's arguments con- cerning arbitrators exceeding powers fell "outside the scope of the court's review"). But as discussed above, it will remand the award to the arbitrators to clarify their intention as to the apportionment of the award.5 5 The Court denies Kurlan and VTraders' re- quest to remand the award to a new panel, how- ever, as this remand is limited to clarification of the award rendered by the original panel to de- termine the arbitrators' intentions for the alloca- tion of the award. II. Alleged Unfairness of Hearing VTrader and Kurlan also challenge the award pur- suant to § 10(a)(3) of the FAA, which allows the Court to vacate an order "where the arbitrators [*15] 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." 9 U.S.C. § 10(a)(3). To warrant vacatur, "the arbitrators' failure to consider pertinent evidence must have deprived [VTrader and Kurlan] of a funda- mentally fair hearing," which typically means "wrongly exclud[ing] the sole evidence on a pivotal issue." Mical v. Glick, 581 F. App'x 568, 570 (7th Cir. 2014). A fun- damentally fair hearing is one where the party has been provided with "adequate notice, a hearing on the evi- dence, and an impartial decision by the arbitrator." Slaney v. The Int'l Amateur Athletic Fed., 244 F.3d 580, 592 (7th Cir. 2001) (citation omitted). The arbitrators enjoy wide latitude in conducting the hearing; they are "not bound to hear all of the evidence tendered by the parties" although they "must give each of the parties to the dispute an adequate opportunity to present its evi- dence and arguments." Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123, 1129-30 (7th Cir. 1997) (quoting Hoteles Condado Beach, La Concha & Convention Ctr. v. Union De Tronquistas Local 901, 763 F.2d 34, 40 (1st Cir. 1985)). Here, Kurlan and VTrader argue that the arbitrators denied them a fundamentally fair hearing for two main reasons: (1) they refused to postpone the hearing to allow Kurlan and VTrader to present additional evidence, and (2) they refused to subpoena DeNio, who had material [*16] evidence to the case.6 First, Kurlan and VTrader argue that they only had one session to present their case, claiming that the Urquharts took an entire week of the hearing to put on their case and that he did not have the opportunity to testify in his own case. But even during the Urquharts' presentation of their case, much of the panel's and parties' time was spent addressing Kurlan and VTrader's defense. See, e.g., Doc. 21-1 at 339-40 (arbi- trators "believe that . . . a good chunk of the pace has to do with the defense that [Kurlan and VTrader] were put- ting on during the first half" of the arbitration proceed- ings). Indeed, Kurlan testified at length during the first week of the hearing, which Kurlan and VTrader errone- ously claim was devoted to the Urquharts' case.7 Kurlan could have chosen to testify again on the sixth day of hearings, but he instead chose to devote his time to call- ing (and recalling) other witnesses.8 6 In their motion to vacate, Kurlan and VTrad- er also reference the fact that, if they had been given more time, Kurlan's attorney would have cross-examined the Urquharts. See Doc. 20 at 11-12. They fail to develop any such argument on this issue in their memorandum, only stating that Kurlan's counsel's cross-examination of Jason was truncated. See Doc. 21 at 22. This is not suf- ficient to develop the argument and the Court need not address it further. United States v. Elst, 579 F.3d 740, 747 (7th Cir. 2009) ("Perfunctory and undeveloped arguments as well as arguments unsupported by pertinent authority are waived."). But even so, as the Urquharts discuss in their re- sponse, Kurlan himself cross-examined both Ja- son and Doug and Kurlan's counsel had the op- portunity to again question Jason during the addi- tional session. Kurlan's counsel did not indicate that his questioning of Jason was truncated in any way, instead stating that he did not have any ad- ditional questions for Jason. See Doc. 21-1 at 398. Kurlan's counsel did not request Doug's ap- pearance at the November 30 session. 7 According to the Urquharts' calculations, Kurlan provided a 16 page opening statement, 243 pages of testimony in response to questioning Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 21 of 26 Page 6 2017 U.S. Dist. LEXIS 28601, * by the Urquharts' counsel, and 37 pages of his own direct testimony and answers to the arbitra- tors' questions. See Doc. 33 at 33 (providing cita- tions to Kurlan's testimony). 8 The Urquharts suggest that Kurlan and VTrader left unused an hour of their allotted time on November 30, relying on counsel's text mes- sage to his wife indicating what time he finished with the hearings that night. Regardless of the timing (which the Court notes does not indicate the time zone in which it was sent), the Court observes that Kurlan's counsel stated to the panel that he did not intend to call any other witnesses, which would include calling Kurlan in his own direct case. At the time that statement was made, the transcript does not indicate that the arbitrators had commented that Kurlan's time to present his case was in any way limited or that they intended to finish at that time. Nor can Kurlan and VTrader demonstrate that the panel unreasonably refused to postpone the hearing to hear from Mankin or DeNio, a claim further undermined by the fact that Kurlan and VTrader have not demon- strated that their testimony would have been non-cumulative, [*17] pertinent, and material. See Laws v. Morgan Stanley Dean Witter, 452 F.3d 398, 400 (7th Cir. 2006) (to warrant vacatur for arbitrators' denial of postponement of hearing, movant must demonstrate that panel had no reasonable basis for denying continuance and that movant suffered prejudice from refusal to delay proceedings); Wilson, 1998 U.S. Dist. LEXIS 16913, 1998 WL 749065, at *5 ("While it is true that an arbitrary denial of a reasonable request for postponement may serve as grounds for vacating an arbitration award, arbi- trators are nonetheless to be accorded a degree of discre- tion in exercising their judgment with respect to a post- ponement request. Therefore, if a reasonable basis exists for an arbitrator's decision not to grant a postponement, the court will be reluctant to vacate an award on the ground of arbitrator misconduct." (citation omitted)). Addressing Mankin, VTrader's accountant, in an affida- vit, he indicates that he was out of the country in No- vember 2015, unavailable by telephone or email. But this contradicts Kurlan's representation on November 5 that Mankin was in Hawaii at the time. Kurlan had indicated Mankin would be testifying by phone from Hawaii prior to the beginning of the hearings and so Kurlan could have either asked to call Mankin out of order or used the time he had on November [*18] 6 to call Mankin in- stead of the two other witnesses he called that day, knowing Mankin would later be unavailable. Kurlan and VTrader's failure to do so suggests that Mankin's testi- mony was not vital to their defense and that the request to continue the hearing until his return merely served as an excuse for Kurlan's new counsel to obtain additional time to familiarize himself with the case. These tactical decisions all provide the arbitrators with reasonable ba- ses for denying Kurlan and VTrader's requests for con- tinuances until Mankin returned to the country. See El Dorado Sch. Dist. No. 15 v. Cont'l Cas. Co., 247 F.3d 843, 848 (8th Cir. 2001) (arbitrator could have deter- mined "postponement was inappropriate because the parties had expended considerable time, effort and mon- ey based on the hearing dates, because of the arbitrator's own schedule, or because appellants' counsel had made an insufficient showing that he was unable to attend any of the scheduled three-day hearing," noting that "[a]ny or all of these explanations would provide a reasonable ba- sis for the decision not to postpone"); ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1464 (10th Cir. 1995) (finding arbitrator "well within his discretion in refusing to postpone the hearings" based on the "rather flimsy excuse" that one of the parties was "traveling overseas," particularly [*19] where additional detail about the travel was not provided). Moreover, the Court cannot find that Kurlan and VTrader suffered any prejudice from Mankin's failure to testify. His affidavit suggests that he would not have added any information to the proceedings that the arbi- trators did not already have before them. For example, his testimony about the structure of VTrader and TCM derives from those entities' operating agreements, both of which were in the record and discussed by the Urquharts' expert. Mankin's proposed testimony appears to only address background information and not anything con- cerning representations made or not made to the Ur- quharts concerning their accounts. As for DeNio, Kurlan and VTrader argue that the arbitrators should have subpoenaed him under the CBOE's rules because his testimony was vital to Kurlan and VTrader's defense. See CBOE Rule 18.22(f), Doc. 33-1 at 43. But once counsel appeared for Kurlan, Kur- lan's counsel also could have attempted to subpoena DeNio under the same rule. Id. ("The arbitrators and any counsel of record to the proceeding shall have the power of the subpoena process as provided by law."). This did not happen, however, and Kurlan cannot use his pro [*20] se status as an excuse. See Vinco Painting, Inc. v. Painters Dist. Council No. 30, No. 09 C 308, 2010 U.S. Dist. LEXIS 72896, 2010 WL 2891685, at *7 (N.D. Ill. July 19, 2010) (finding argument that "inexperience is not cause for a due process challenge" to be "well-taken"). Regardless, any subpoena to DeNio would have been futile because DeNio, located in Texas, resid- ed outside the limits of the arbitrators' subpoena power. See Alliance Healthcare Servs., Inc. v. Argonaut Private Equity, LLC, 804 F. Supp. 2d 808, 813 (N.D. Ill. Aug. 9, 2011) (court did not have the power to enforce out-of-district subpoenas issued by arbitrators). Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 22 of 26 Page 7 2017 U.S. Dist. LEXIS 28601, * Moreover, Kurlan and VTrader's argument that DeNio's testimony was vital to their defense is belied by the fact that they did not list him as a witness nor agree to conduct pre-hearing depositions, which would have avoided the issue of DeNio's failure to appear at the hearing. Indeed, Kurlan and VTrader's failure to identify DeNio as a witness in their pre-hearing disclosures would have warranted the arbitrators' exclusion of him as a witness in Kurlan and VTrader's case. See CBOE Rule 18.22(c), Doc. 33-1 at 42 ("The arbitrator(s) may exclude from the arbitration any documents not exchanged or identified or witnesses not identified in accordance with the requirements of this paragraph.").9 Finally, Kurlan and VTrader have failed to demonstrate that DeNio's testimony would have been material and non-cumulative, providing only [*21] speculation as to its content from Kurlan's counsel, who does not indicate that he ever spoke to DeNio or has other personal knowledge as to DeNio's expected testimony. See Fed. R. Evid. 602 ("A witness may testify to a matter only if evidence is intro- duced sufficient to support a finding that the witness has personal knowledge of the matter."); Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) ("[A]lthough personal knowledge may include reasonable inferences, those inferences must be 'grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.'" (citation omitted)). 9 In reply, Kurlan and VTrader suggest they did not need to identify DeNio as a witness given that the Urquharts identified DeNio on their wit- ness list and the rules provide that a party need not identify witnesses "that parties may use for cross-examination or rebuttal." Doc. 33-1 at 42. But Kurlan and VTrader are arguing that they needed DeNio's testimony in their direct case, not that they planned only to cross-examine him, and so this belated attempt to remedy their failure to identify him as a witness goes nowhere. Finally, Kurlan and VTrader argue that the addition- al session held on November 30 did not cure any of the procedural deficiencies that arose during the earlier week of hearings. But the November 30 session provided Kur- lan and VTrader with the opportunity to present addi- tional evidence, as they requested. They ultimately did not use all the time made available to them, undermining any argument that examinations were truncated or pre- vented because of time constraints; instead, Kurlan and his counsel appear to have made strategic decisions as to what evidence to present and [*22] cannot now com- plain about these decisions. More important to undercut- ting Kurlan and VTrader's argument is the fact that, at the end of the hearing, the arbitrators asked both sides if "each party has had a chance to present a full and fair presentation of your respective cases." Doc. 21-1 at 415. Wachtel, representing Kurlan, stated, "I think to the best of our ability we tried to do that. Obviously, as I men- tioned before, we would have liked to have spoken with a few more people and had a little more time to come to grips. As best we could, I believe we presented the best and fullest case we could." Id. This concession, when given the opportunity to present objections to the alleged fundamental unfairness on the record, effectively oper- ates as a waiver of Kurlan and VTrader's argument that the arbitrators deprived Kurlan and VTrader of a funda- mentally fair proceeding.10 See Ganton Techs., Inc. v. Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., Local 627, 358 F.3d 459, 462 (7th Cir. 2004) ("The failure to pose an available argument to the arbitrator waives that argument in collateral proceedings to enforce or vacate the arbitration award."); UFCW Lo- cal 100A v. John Hofmeister & Son, Inc., 950 F.2d 1340, 1344 (7th Cir. 1991) ("If parties were allowed to with- hold information during arbitration, and then use it to sandbag their opponents [*23] during enforcement proceedings, much of the efficiency and usefulness of arbitration would be lost."). Had Kurlan, and derivatively VTrader, believed additional testimony necessary or had issues with the proceedings, they had the opportunity to make such objections on the record at the end of the proceedings, but instead they declined to do so. Based on the Court's review of the objections raised by Kurlan and VTrader, the Court cannot conclude that the panel de- prived Kurlan and VTrader of a fundamentally fair hear- ing so as to warrant vacatur of the award. 10 Kurlan and VTrader argue that this cannot operate as a concession when Kurlan made mul- tiple objections prior to this questioning. But to the extent Kurlan wanted to preserve these objec- tions, his attorney should not have conceded that the proceedings were fair. CONCLUSION For the foregoing reasons, the Court denies the mo- tion to vacate the arbitration award [20, 26-1], except to the extent that the Court remands the award to the arbi- tration panel for clarification of the award. This case is remanded to the arbitration panel to determine the appor- tionment of the award among the Urquharts as claimants and VTrader and Kurlan as respondents, and whether VTrader and Kurlan are jointly and severally liable for the damages awarded against them. The Court denies the motion to confirm the arbitration award [33] without prejudice to refiling after the arbitration panel has clari- fied the award. Dated: [*24] February 28, 2017 Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 23 of 26 Page 8 2017 U.S. Dist. LEXIS 28601, * /s/ Sara L. Ellis SARA L. ELLIS United States District Judge Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 24 of 26 Page 1 VIVIAN WELLS, Plaintiff, v. DISH NETWORK, LLC, a Colorado limited liability company, Defendant. Civil Action No. 11-cv-00269-CMA-KLM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2011 U.S. Dist. LEXIS 66948 June 22, 2011, Decided June 22, 2011, Filed CORE TERMS: discovery, arbitrate, compel arbitra- tion, arbitration, pendency, weigh, arbitration agreement, public interest, undue burden, convenience, nonparties, immunity, prompt COUNSEL: [*1] For Vivian Wells, Plaintiff: David Lichtenstein, David Lichtenstein, Attorney at Law, Den- ver, CO; Rachel E. Ellis, Sweeney & Bechtold, P.C., Denver, CO. For DISH Network Corporation, a Nevada Corporation, Defendant: Meghan W. Martinez, Barkley Martinez, P.C., Aurora, CO. For DISH Network, LLC, a Colorado Limited Liability Company, Defendant: Elizabeth R. Imhoff, Meghan W. Martinez, Barkley Martinez, P.C., Aurora, CO. JUDGES: Kristen L. Mix, United States Magistrate Judge. OPINION BY: Kristen L. Mix OPINION ORDER DENYING STAY ENTERED BY MAGISTRATE JUDGE KRIS- TEN L. MIX This matter is before the Court on Defendant's Mo- tion for Immediate Stay of Discovery Pending Reso- lution of its Motion to Compel Arbitration [Docket No. 26; Filed June 20, 2011] (the "Motion"). Due to De- fendant's request for an immediate ruling, the Court re- solves the Motion without waiting for Plaintiff's re- sponse. See D.C.COLO.LCivR 7.1C. The Motion is premised on the Defendant's pending Motion to Compel Arbitration and Motion to Stay Proceedings Pending Arbitration [Docket No. 25] ("Motion to Arbitrate"). The Motion to Arbitrate has not been referred to this Court for resolution. On the basis of the Motion to Arbitrate, Defendant seeks to stay discovery [*2] in this case until the validity of the parties' alleged arbitration agreement is established. For the reasons set forth below, IT IS HEREBY ORDERED that the Motion is DENIED. Stays are generally disfavored in this District. See Wason Ranch Corp. v. Hecla Mining Co., No. 07-cv-00267-EWN-MEH, 2007 U.S. Dist. LEXIS 41174, 2007 WL 1655362, at *1 (D. Colo. June 6, 2007) (un- published decision). However, a stay may be appropriate in certain circumstances. The Court weighs several fac- tors in making a determination regarding the propriety of a stay. See String Cheese Incident, LLC v. Stylus Shows, Inc., No. 05-cv-01934, 2006 U.S. Dist. LEXIS 97388, 2006 WL 894955, at * 2 (D. Colo. Mar. 30, 2006) (un- published decision) (denoting a five-part test). The Court considers (1) the interest of Plaintiff; (2) the burden on Defendants in going forward; (3) the Court's conven- ience; (4) the interest of nonparties, and (5) the public interest in general. Id. Here, those factors weigh against entry of a stay. First, the Court notes that Plaintiff opposes a stay and expresses an interest in proceeding expeditiously with discovery. See Motion [#26] at 3. This is a reasona- ble position, as I have generally found that with the pas- sage of time, the memories of the parties [*3] and other Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 25 of 26 Page 2 2011 U.S. Dist. LEXIS 66948, * witnesses may fade, witnesses may relocate or become unavailable, or documents may become lost or inadvert- ently destroyed. As such, delay may diminish Plaintiff's ability to proceed and may impact her ability to obtain a speedy resolution of her claims. Second, in contrast, Defendant does not suggest any undue burden in proceeding with the case. The ordinary burdens associated with litigating a case do not constitute undue burdens. See Collins v. Ace Mortgage Funding, LLC, 08-cv-1709-REB-KLM, 2008 U.S. Dist. LEXIS 87503, 2008 WL 4457850, at *1 (D. Colo. Oct. 1, 2008) (unpublished decision). Although Defendant has filed a Motion to Arbitrate which, if successful, may justify the imposition of a stay during the pendency of the arbitra- tion, the Motion is not based on grounds typically war- ranting the imposition of a stay. More specifically, while Courts have frequently imposed a stay when compelling issues relating to jurisdiction or immunity have been raised, cf. Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991) (noting that immuni- ty is a threshold issue and discovery should not be al- lowed while the issue is pending); Gilbert v. Ferry, 401 F.3d 411, 415-16 (6th Cir. 2005) (finding stay permissi- ble pending ruling [*4] on dispositive motion involving traditional jurisdictional issue), a stay is only required after a determination has been made that the parties have a valid arbitration agreement. See 9 U.S.C. § 3 (stay only required by Court "upon being satisfied that the issue involved . . . is referable to arbitration"); see also Qual- comm Inc. v. Nokia Corp., 466 F.3d 1366, 1370 (Fed. Cir. 2006) (if district court satisfied issue involved is arbitrable, then it must grant stay). As the Motion to Ar- bitrate is not referred to me, I take no position as to De- fendant's likelihood of success on it. Moreover as has been the Court's standing practice when resolving motions on this issue, absent an extraor- dinary or unique burden imposed by the discovery at issue, the Court finds that, on balance, a consideration of the first two String Cheese factors weighs against the imposition of a stay. Compare Stone v. Vail Resorts Dev. Co., No. 09-cv-02081-WYD-KLM, 2010 U.S. Dist. LEXIS 8765, 2010 WL 148278 (D. Colo. Jan. 7, 2010) (granting rare stay due to existence of class claims and potentially onerous discovery during pendency of motion to compel arbitration which would likely foreclose pursuit of class claims), with e.g., Lester v. Gene Exp, Inc., No. 09-cv-02648-REB-KLM, 2010 U.S. Dist. LEXIS 25379, 2010 WL 743555 (D. Colo. Mar. 2, 2010) [*5] (un- published decision) (denying stay during pendency of motion to compel arbitration); Bushman Inv. Props., Ltd. v. DBSI E-470 East LLC, No. 09-cv-00674-MSK-KLM, 2010 U.S. Dist. LEXIS 10214, 2010 WL 330224 (D. Co- lo. Jan. 20, 2010) (unpublished decision) (same); Or- bitcom, Inc. v. Qwest Communs. Corp., No. 09-cv-00181-WDM-KLM, 2009 U.S. Dist. LEXIS 54833, 2009 WL 1668547 (D. Colo. June 15, 2009) (un- published decision) (same). While Defendant is correct that a favorable decision on the Motion to Arbitrate will obviate the need for further discovery conducted in this Court, given that the arbitration rules also provide for discovery, see Motion [#26] at 4, it is not clear that the circumstances of this case present a compelling reason for deviating from my prior decisions in this area. 1 1 In relation to Defendant's argument that the Court must stay discovery to protect Defendant from being deemed to have waived its right to ar- bitrate, see Motion [#26] at 5, nothing about De- fendant's prior or current conduct is consistent with a finding of waiver. For example, the Mo- tion to Arbitrate and the present Motion (includ- ing Defendant's suspension of all discovery obli- gations during [*6] its pendency), evidence the antithesis of waiver. Further, any future participa- tion in discovery by Defendant is prompted by this Court's Order and may arguably prove useful if the parties are ultimately required to arbitrate. Finally, the Court also considers its own conven- ience, the interest of nonparties, and the public interest in general. None of these factors prompts the Court to reach a different result. The Court is inconvenienced by an ill-advised stay because the delay in prosecuting the case which results from imposition of a stay makes the Court's docket less predictable and, hence, less manageable. This is particularly true when the stay is tied to a resolution of a motion for which ultimate success is not guaranteed. Moreover, although Defendant suggests that the District Judge is likely to resolve the pending Motion to Arbitrate well within the currently set discovery deadlines, (1) the Motion to Arbitrate is not yet fully briefed and (2) there is a shortage of judges in this District and matters are understandably taking longer to resolve as a result. While the Court identifies no particular interest of persons not parties in the litigation, the Court identifies a strong [*7] interest held by the public in general regarding the prompt and efficient handling of all litigation. Under these circumstances, the Court finds that a stay of dis- covery is not warranted. Dated: June 22, 2011 BY THE COURT: /s/ Kristen L. Mix United States Magistrate Judge Kristen L. Mix Case 1:17-cv-00272-PAB-STV Document 30-1 Filed 04/07/17 USDC Colorado Page 26 of 26 EXHIBIT B Case 1:17-cv-00272-PAB-STV Document 30-2 Filed 04/07/17 USDC Colorado Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action 11-CV-00269-CMA-KLM VIVIAN WELLS, Plaintiff, v. DISH NETWORK L.L.C., Defendant. ______________________________________________________________________ DEFENDANT'S MOTION FOR IMMEDIATE STAY OF DISCOVERY PENDING RESOLUTION OF ITS MOTION TO COMPEL ARBITRATION ______________________________________________________________________ Defendant DISH Network L.L.C. ("DISH"), by and through undersigned counsel, moves this Court for an immediate stay of discovery pending the resolution of its Motion to Compel Arbitration and Motion to Stay Proceedings Pending Arbitration (the "Arbitration Motion") (Docket No. 25), filed with this Court on June 16, 2011. In support of this Motion, DISH states as follows: On January 31, 2011, Plaintiff Vivian Wells ("Wells") filed an Amended Complaint against DISH in Colorado state court, alleging violations of the Family and Medical Leave Act ("FMLA"). DISH removed the action to federal court on February 2, 2011. Thereafter, DISH proceeded with litigation promptly, promulgating its First Requests for Production of Documents to Plaintiff on April 5, 2011. The Parties exchanged Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on April 19, 2011. The Parties also conferred extensively regarding discovery parameters and electronically stored FACTUAL BACKGROUND Case 1:11-cv-00269-CMA-KLM Document 26 Filed 06/20/11 USDC Colorado Page 1 of 8Case 1:17-cv-00272-PAB-STV Document 30-2 Filed 04/07/17 USDC Colorado Page 2 of 9 -2- information, and attended the Scheduling Conference on April 26, 2011. Also on April 26, 2011, Wells promulgated her First Set of Written Discovery to DISH. Finally, on May 9, 2011, Wells submitted her responses to DISH's Requests for Production of Documents, with some, but not all, responsive documents. (Wells has not supplemented her responses, and DISH has not yet responded to Wells' written discovery requests.) In DISH's review of the documents that Wells submitted in her responses to DISH's Request for Production of Documents on May 9, 2011, undersigned counsel for DISH first became aware that Wells had executed a mandatory agreement to submit all employment-related disputes to binding arbitration, which was contained within DISH's stock option agreement on December 31, 2008. DISH then searched its own files and discovered four prior stock agreements containing binding arbitration clauses signed by Wells but filed under her former name, Vivian Hammerberg Should DISH prevail on its Arbitration Motion, none of Wells' claims will remain with this Court; the Arbitration Motion will dispose of the entire action. Thus, staying all discovery pending the ruling on the Arbitration Motion will advance the efficient resolution of this case, and no party will be irreparably harmed by a stay. Additionally, the discovery cut-off date in this case is October 31, 2011; thus, the Parties will have time to complete discovery after the Arbitration Motion is ruled upon, in the unlikely event that the Court does not compel arbitration. For the above reasons and those . DISH immediately began conferring with Wells' counsel, but could not come to an agreement to submit Wells' claims to arbitration, and thereafter, filed its Arbitration Motion. Case 1:11-cv-00269-CMA-KLM Document 26 Filed 06/20/11 USDC Colorado Page 2 of 8Case 1:17-cv-00272-PAB-STV Document 30-2 Filed 04/07/17 USDC Colorado Page 3 of 9 -3- stated herein, DISH respectfully requests that the Court grant an immediate stay of all discovery pending the resolution of its Arbitration Motion (Docket No. 25). In considering a motion to stay discovery, federal courts weigh five factors. First, the Court may consider "(1) the interest of Plaintiff; (2) the burden on Defendants in going forward; (3) the Court's convenience; (4) the interest of nonparties; and (5) the public interest in general." Stone v. Vail Resorts Dev. Co., No. 09-cv-02081-WYD-KLM, 2010 WL 148278, at *1 (D. Colo. Jan. 7, 2010); see also String Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-cv-01934-LTB-PA, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006). In addition, the Federal Rules of Civil Procedure provide that the court may make an order limiting discovery "to protect a party . . . from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). In this case, all the factors weigh in favor of granting a stay of discovery. ARGUMENT First, Wells does not have a prevailing interest in proceeding with discovery while the Arbitration Motion is pending. As noted above, the case has been moving forward expeditiously, there is no real risk of the Parties losing evidence or other relevant information during the very quick time required to brief and decide the Arbitration Motion, and there is not even a trial date. In fact, it is highly likely that the arbitration issue will be decided well before the current discovery deadline. Requiring Wells and DISH to brief an additional issue - the appropriateness of discovery - while the Arbitration Motion is pending is not in anyone's interest. It is more efficient to resolve the Arbitration Motion. Notably, Wells has only objected to the stay on the basis that she simply wants discovery to proceed. It will proceed promptly, however, once the forum is set (in Case 1:11-cv-00269-CMA-KLM Document 26 Filed 06/20/11 USDC Colorado Page 3 of 8Case 1:17-cv-00272-PAB-STV Document 30-2 Filed 04/07/17 USDC Colorado Page 4 of 9 -4- arbitration). Ironically, it is also Wells' responsibility that this case should be delayed while the Arbitration Motion is resolved. Wells had knowledge of the arbitration agreement at the outset, as evidence by her first producing the document with her discovery responses, but chose to not file the case pursuant to her agreement and further refused to voluntarily submit the case to arbitration once DISH became aware of the arbitration agreement. See also Stone, 2010 WL 148278, at *1 (plaintiff's general interest in his case proceeding does not outweigh other factors which favor a stay of discovery). Second, DISH would be prejudiced by undue burden and expense if discovery was to proceed in this forum while the Arbitration Motion is pending. DISH has a strong interest in the efficient resolution of Wells' claims through arbitration. The arbitration agreement provides for the arbitration to proceed pursuant to the AAA National Rules for the Resolution of Employment Disputes. Those arbitration rules provide different discovery parameters which will ultimately be set by the arbitrator. The rules specifically state: The arbitrator shall have the authority to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration. AAA Employment Arbitration Rules, ¶ 9 (emphasis added). Should DISH proceed with discovery in this forum, it will undoubtedly be required to participate in discovery that may otherwise be inconsistent with the expedited nature of arbitration. Further, engaging in discovery will defeat the purpose of the Parties' agreement to arbitrate their Case 1:11-cv-00269-CMA-KLM Document 26 Filed 06/20/11 USDC Colorado Page 4 of 8Case 1:17-cv-00272-PAB-STV Document 30-2 Filed 04/07/17 USDC Colorado Page 5 of 9 -5- disputes, which is to avoid the costs associated with litigation and create a less expensive and more expeditious forum for dispute resolution. Moreover, if DISH is required to participate in further discovery, it may be deemed to have waived its right to pursue arbitration. Numerous courts have held that by participating in discovery, a party may waive its right to pursue the same case in arbitration. See Citibank, N.A. v. Stok & Assoc., P.A., 387 F. App'x 921, 924 (11th Cir. 2010); Harrell's LLC v. Agrium Advanced Tech., Inc., No. 8:10-cv-1499-T-33AEP, 2011 WL 1596007, at *2 (M.D. Fla. Apr. 27, 2011). Further, in the Tenth Circuit, when weighing the factors to determine whether a party has waived its right to proceed in arbitration, the courts consider "whether the party's action are inconsistent with the right to arbitrate," "whether 'the litigation machinery has been substantially invoked' and the parties 'were well into preparation of a lawsuit,'" and "'whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place.'" Metz v. Merrill Lynch, Pierce, Fenner & Smith, 39 F.3d 1482, 1489 (10th Cir. 1994) (quoting Peterson v. Shearson/American Express, 849 F.2d 464, 467- 68 (10th Cir. 1988)). To avoid any appearance that it waived its right to arbitration of this case, DISH immediately stopped proceeding with discovery and attempted to invoke the terms and requirements of the arbitration agreement as soon as it became aware of the multiple arbitration agreements executed by Wells. DISH has not conferred with Wells regarding the deficiencies in her discovery responses; DISH has not yet responded to Wells' discovery requests; and DISH cancelled the scheduled depositions of Wells and another witness. Yet, by continuing with discovery now that the Arbitration Motion is pending, DISH risks waiving its right to arbitrate. Case 1:11-cv-00269-CMA-KLM Document 26 Filed 06/20/11 USDC Colorado Page 5 of 8Case 1:17-cv-00272-PAB-STV Document 30-2 Filed 04/07/17 USDC Colorado Page 6 of 9 -6- Third, the Court's interest in judicial economy weighs in favor of staying discovery while the Arbitration Motion is pending. Because all of Wells' claims fall within the scope of the arbitration agreement, this case will be administratively closed if the Court rules in favor of arbitration. "Where a pending motion may dispose of an action, however, a stay of proceedings may allow the Court to avoid expending resources in managing an action that ultimately will be dismissed." Stone, 2010 WL 148278, at *3. Further, as the Parties are still early in the discovery process and the discovery cut-off date is not until October 31, 2011, if the Court does not rule in favor of the arbitration, the Court may not be affected at all by imposing this brief stay of discovery. Fourth, there are no nonparties with any interest in this case, and thus, none would be prejudiced by a stay of discovery. Fifth, the general public interest weighs in favor of a stay of discovery. Federal and state law strongly favors the enforcement of arbitration agreements. Armijo v. Prudential Ins. Co., 72 F.3d 793. 798 (10th Cir. 1995); Fuller v. Pep Boys-Manny, Moe & Jack of Del., Inc., 88 F. Supp.2d 1158, 1161 (D. Colo. 2000); Rains v. Foundation Health Sys. Life & Health, 23 P.3d 1249, 1251 (Colo. Ct. App. 2001). Moreover, recognizing the public's interest in judicial economy and efficiency, Colorado state law requires a stay of discovery pending a decision on a motion to compel arbitration. Colo. Rev. Stat. § 13-22-207(6); see also Stone, 2010 WL 148278, at *4. Thus, requiring DISH to proceed with discovery would run contrary to the public interest. Pursuant to D.C.Colo.LCivR 7.1(A), counsel for DISH certifies that Plaintiff's counsel and DISH's counsel have conferred multiple times by telephone and email over CERTIFICATE OF CONFERENCE Case 1:11-cv-00269-CMA-KLM Document 26 Filed 06/20/11 USDC Colorado Page 6 of 8Case 1:17-cv-00272-PAB-STV Document 30-2 Filed 04/07/17 USDC Colorado Page 7 of 9 -7- the course of several weeks. Unfortunately, counsel could not agree regarding this Motion on the stay of discovery in this case. For the foregoing reasons, Defendant DISH Network L.L.C. respectfully requests that the Court immediately stay discovery pending the resolution of its Arbitration Motion. CONCLUSION Respectfully submitted this 20th day of June, 2011. BARKLEY MARTINEZ, P.C. Meghan W. Martinez s/ Meghan W. Martinez Elizabeth R. Imhoff 14426 E. Evans Ave. Aurora, CO 80014-1474 Telephone: (303) 597-4000 Facsimile: (303) 597-4001 ATTORNEYS FOR DEFENDANT Case 1:11-cv-00269-CMA-KLM Document 26 Filed 06/20/11 USDC Colorado Page 7 of 8Case 1:17-cv-00272-PAB-STV Document 30-2 Filed 04/07/17 USDC Colorado Page 8 of 9 -8- CERTIFICATE OF SERVICE I hereby certify that on this 20th day of June, 2011, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: David Lichtenstein, Esq. 1556 Williams Street, Suite 100 Denver, Colorado 80218-1661 dave@lichtensteinlaw.com Rachel E. Ellis, Esq. Sweeney & Bechtold, LLC 650 S. Cherry St., Suite 610 Denver, Colorado 80246 reellis@sweeneybechtold.com Beth Reinhardt, paralegal s/ Beth Reinhardt Case 1:11-cv-00269-CMA-KLM Document 26 Filed 06/20/11 USDC Colorado Page 8 of 8Case 1:17-cv-00272-PAB-STV Document 30-2 Filed 04/07/17 USDC Colorado Page 9 of 9