Krantz & Berman LLP v. Dalal ( 2012 )


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  •          11-3068
             Krantz & Berman LLP v. Dalal
    
    
    
    
                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT
    
                                                SUMMARY ORDER
    
         RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
         ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
         OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
         ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
         APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
         CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
         COUNSEL.
    
     1             At a stated term of the United States Court of Appeals for the Second Circuit,
     2       held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
     3       the City of New York, on the 9th day of July, two thousand twelve.
     4
     5       PRESENT:
     6                    JOSEPH M. McLAUGHLIN,
     7                    SUSAN L. CARNEY,
     8                    CHRISTOPHER F. DRONEY,
     9                           Circuit Judges.
    10       ____________________________________________________________
    11
    12       Krantz & Berman LLP,
    13
    14                    Plaintiff-Appellee,
    15
    16                    -v.-                                                No. 11-3068
    17
    18       Sandeep Dalal,
    19
    20                    Defendant-Appellant.
    21       ___________________________________________________________
    22
    23       FOR APPELLANT:             Sandeep Dalal, pro se, Houston, TX.
    24
    25       FOR APPELLEE:              Larry H. Krantz, Krantz & Berman LLP, New York, NY.
    26
    27             Appeal from the United States District Court for the Southern District of
    
    28       New York (Denise L. Cote, Judge).
     1         ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,
    
     2   and DECREED that the judgment of the District Court be and it hereby is
    
     3   AFFIRMED.
    
     4         Defendant-Appellant Sandeep Dalal, pro se, appeals from an order
    
     5   compelling arbitration, an order denying Dalal’s motion to reconsider that decision,
    
     6   and a partial judgment confirming the final arbitration award. The underlying
    
     7   dispute concerns compensation that Dalal has been found to owe Plaintiff-Appellee
    
     8   Krantz & Berman LLP (“K&B”) for legal services that K&B provided him pursuant
    
     9   to a retainer agreement that contained an enforceable arbitration provision. We
    
    10   assume the parties’ familiarity with the underlying facts, procedural history, and
    
    11   the arguments raised on appeal, which we reference only as necessary to explain
    
    12   our decision.
    
    13         We review de novo a district court’s order compelling arbitration. Chelsea
    
    14   Square Textiles, Inc. v. Bombay Dyeing & Mfg. Co., 
    189 F.3d 289
    , 295 (2d Cir.
    
    15   1999). When, after entering such an order, a district court confirms an arbitration
    
    16   award, we review any legal challenges de novo and any factual challenges for clear
    
    17   error. See 187 Concourse Assocs. v. Fishman, 
    399 F.3d 524
    , 526 (2d Cir. 2005) (per
    
    18   curiam).
    
    19         A. The order compelling arbitration
    
    20         In support of his assertion that the district court erred in granting K&B’s
    
    
    
    
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     1   motion to compel arbitration,1 Dalal offers a variety of arguments, none of which
    
     2   are meritorious. First, he contends that the court should have considered whether
    
     3   K&B had waived its right to arbitrate by failing to request such relief in its
    
     4   complaint. The court in fact explicitly considered Dalal’s waiver argument and
    
     5   correctly rejected it on the ground that Dalal had not suffered any resulting
    
     6   prejudice. See Thyssen, Inc. v. Calypso Shipping Corp., 
    310 F.3d 102
    , 105 (2d Cir.
    
     7   2002) (per curiam) (“The key to a waiver analysis is prejudice.”). Indeed, when
    
     8   K&B filed its motion to compel arbitration in January 2010, less than three months
    
     9   had elapsed from commencement of the litigation, and no discovery or initial
    
    10   pretrial conference had yet occurred, see id., and, moreover, Dalal himself had
    
    11   earlier claimed that arbitration was required.
    
    12          Second, Dalal contends that the nexus between the parties’ retainer
    
    13   agreement and interstate commerce is insufficient to make enforceable, under the
    
    14   Federal Arbitration Act (“FAA”), the arbitration provision included in their
    
    15   agreement. See 9 U.S.C. § 2. But the record reflects that, pursuant to the retainer
    
    16   agreement, K&B (a New York law firm) provided services to Dalal (then a resident
    
    17   of Washington, D.C.) related to litigation involving a New Jersey corporation. We
    
    18   need go no further. See generally Citizens Bank v. Alafabco, Inc., 
    539 U.S. 52
    , 56
    
    19   (2003) (per curiam) (concluding that the term “involving commerce” in the FAA
    
    20   signifies the “broadest permissible exercise of Congress’ Commerce Clause power”).
    
    
                    1
                      Dalal’s contention that the district court sua sponte compelled arbitration is belied by
            the record. K&B moved to compel arbitration on January 29, 2010, and the court granted that
            motion on May 11, 2010.
    
    
                                                           3
     1         Third, Dalal asserts that K&B failed to effect adequate service of process on
    
     2   him. But K&B submitted affidavits to the district court that Dalal failed effectively
    
     3   to rebut. They reflect entirely satisfactory service of the summons and the
    
     4   complaint on Dalal at his home in Texas.
    
     5         Finally, Dalal maintains that the district court, not the arbitrator, should
    
     6   have adjudicated the merits of his statute of limitations defense. We disagree. As
    
     7   the district court properly concluded, under the retainer agreement’s arbitration
    
     8   clause, the timeliness of K&B’s claims was “for the arbitrator to determine.”
    
     9   Diamond Waterproofing Sys., Inc., v. 55 Liberty Owners Corp., 
    4 N.Y.3d 247
    , 250
    
    10   (2005); see also Martens v. Thomann, 
    273 F.3d 159
    , 179 n.14 (2d Cir. 2001).
    
    11         For the foregoing reasons, we affirm the district court’s order compelling
    
    12   arbitration and its order denying Dalal’s motion for reconsideration of that decision.
    
    13         B. The order confirming the arbitration award
    
    14         Dalal also challenges the district court’s confirmation of the arbitration
    
    15   award entered in K&B’s favor. “It is well established that courts must grant an
    
    16   arbitration panel’s decision great deference.” Duferco Int’l Steel Trading v. T.
    
    17   Klaveness Shipping A/S, 
    333 F.3d 383
    , 388 (2d Cir. 2003). A party seeking to
    
    18   vacate an arbitration award therefore bears a “heavy burden.” Id. Having
    
    19   considered Dalal’s arguments regarding the arbitration award and the district
    
    20   court’s confirmation order, we conclude that he has failed to carry that burden. We
    
    21   affirm the district court’s partial judgment confirming the arbitration award for
    
    22   substantially those reasons set forth by the district court in its thorough opinion.
    
    
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     1         We have considered Dalal’s remaining arguments and conclude that they are
    
    2    without merit. Accordingly, the judgment of the district court is AFFIRMED.
    
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     4                                               FOR THE COURT:
     5                                               Catherine O’Hagan Wolfe, Clerk
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