PNGI Charles Town Gaming v. Tina Mawing , 603 F. App'x 137 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1513
PNGI CHARLES TOWN GAMING, L.L.C.,
Petitioner - Appellant,
v.
TINA MAWING; THE CHARLES TOWN HORSEMEN’S BENEVOLENT
PROTECTIVE ASSOCIATION,
Respondents - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:14-cv-00002-JPB)
Submitted: January 30, 2015 Decided: March 4, 2015
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stacey A. Scrivani, STEVENS & LEE, P.C., Reading, Pennsylvania,
for Appellant. David M. Hammer, HAMMER, FERRETTI & SCHIAVONI,
Martinsburg, West Virginia; Harry P. Waddell, LAW OFFICE OF
HARRY P. WADDELL, Martinsburg, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
PNGI Charles Town Gaming, L.L.C. (“PNGI”), appeals
from the district court’s order denying its request under the
Federal Arbitration Act (“FAA”) to vacate an October 2013
arbitral award and confirming the award. We affirm.
“In order for a reviewing court to vacate an
arbitration award, the moving party must sustain the heavy
burden of showing one of the grounds specified in the [FAA] or
one of certain limited common law grounds.” MCI Constructors,
LLC v. City Of Greensboro, 610 F.3d 849, 857 (4th Cir. 2010). 1
The grounds for vacating an arbitral award specified in the FAA
are: “(1) where the award was procured by corruption, fraud, or
undue means; (2) where there was evident partiality or
corruption in the arbitrators, or either of them; (3) where the
arbitrators were guilty of misconduct . . . ; 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) (2012).
1
In the wake of the Supreme Court’s decision in Hall Street
Assocs., LLC v. Mattel, Inc., 552 U.S. 576 (2008), this court
has recognized that considerable uncertainty exists “as to the
continuing viability of extra-statutory grounds for vacating
arbitration awards.” Raymond James Fin. Servs., Inc. v. Bishop,
596 F.3d 183, 193 n.13 (4th Cir. 2010). However, as PNGI relies
only on grounds specified in the FAA as the basis for
overturning the district court’s order, any effect of
Hall Street is not implicated in this appeal.
2
A district court’s legal rulings on a motion to vacate
an arbitral award under the FAA are reviewed de novo, while
“[a]ny factual findings made by the district court in affirming
such an award are reviewed for clear error.”
Wachovia Sec., LLC v. Brand, 671 F.3d 472, 478 (4th Cir. 2012)
(internal quotation marks omitted). Under the clear error
standard of review, we will reverse only if “left with the
definite and firm conviction that a mistake has been committed.”
United States v. Chandia, 675 F.3d 329, 337 (4th Cir. 2012)
(internal quotation marks omitted).
“Judicial review of an arbitration award in federal
court is substantially circumscribed.” Three S Del., Inc. v.
DataQuick Info. Sys., Inc., 492 F.3d 520, 527 (4th Cir. 2007)
(internal quotation marks omitted). In fact, “the scope of
judicial review for an arbitrator’s decision is among the
narrowest known at law because to allow full scrutiny of such
awards would frustrate the purpose of having arbitration at
all-the quick resolution of disputes and the avoidance of the
expense and delay associated with litigation.”
MCI Constructors, LLC, 610 F.3d at 857 (internal quotation marks
omitted). “A court sits to determine only whether the
arbitrator did his job—not whether he did it well, correctly, or
reasonably, but simply whether he did it.” U.S. Postal Serv. v.
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Am. Postal Workers Union, 204 F.3d 523, 527 (4th Cir. 2000)
(internal quotation marks omitted).
After review of the record and the parties’ briefs, we
conclude that PNGI fails to establish reversible error in the
district court’s confirmation ruling. We reject as without
merit PNGI’s contention that two of the three arbitrators
exceeded their authority in issuing the arbitral award without
the participation and input of the third arbitrator. The
district court’s determination that the parties received the
benefit of their bargain to arbitrate before a three-member
arbitration panel was premised on a finding that the third
arbitrator participated in and signed the award prior to his
death from leukemia. While PNGI contends that the third
arbitrator’s illness prevented him from participating in the
arbitration after the date on which billing records for his
services cease, there is nothing in the record to suggest
“definite[ly]” or “firm[ly]” that the district court’s factual
findings to the contrary are mistaken. Chandia, 675 F.3d at
337. Consequently, because the third arbitrator participated in
and signed the arbitral award prior to his death, the parties
received the benefit of their agreement to arbitrate before a
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three-member panel, 2 and the district court thus did not
reversibly err in rejecting PNGI’s contention that vacatur of
the arbitral award was required because two arbitrators exceeded
their powers in issuing the award without the benefit of the
third arbitrator’s input.
We also reject PNGI’s contention that vacatur of the
arbitral award is required because it is not a final and
definite award. Cases addressing this provision have vacated
arbitration awards on this ground only when the arbitrator
either failed to resolve an issue presented to him or issued an
award that was so unclear and ambiguous that a reviewing court
could not engage in meaningful review of the award.
Bell Aerospace Co. Div. of Textron, Inc. v. Local 516, 500 F.2d
921, 923 (2d Cir. 1974) (ambiguous award); Galt v.
Libbey-Owens-Ford Glass Co., 397 F.2d 439, 442 (7th Cir. 1968)
(arbitrators failed to mention a defense presented to them).
2
PNGI’s reliance on Szuts v. Dean Witter Reynolds, Inc.,
931 F.2d 830 (11th Cir. 1991), and Cia De Navegacion Omsil,
S. A. v. Hugo Neu Corp., 359 F. Supp. 898 (S.D.N.Y. 1973), in
support of this contention is misplaced. In those cases, an
arbitrator died or was disqualified before decisions could be
rendered, and the parties did not receive the benefit of their
agreement to arbitrate before a three-member arbitration panel.
Szuts, 931 F.2d at 830, 832; Cia De Navegacion Omsil,
359 F. Supp. at 899. In this case, by contrast, the third
arbitrator died after the issuance of the award and participated
in its issuance prior to his death.
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Here, however, the arbitrators ruled on the procedural
and substantive matters presented to them, found liability by
PNGI, found that damages were owed, that a particular rate for
damages was warranted, that the claimed loss amount had to be
offset by certain ascertainable amounts, directed the parties to
calculate damages due in light of such offsets, found that
attorney’s fees were warranted, directed Appellee Mawing to
submit a petition for attorney’s fees and costs, and retained
jurisdiction—pursuant to rules to which the parties themselves
agreed—to resolve future disputes only in the event that the
parties disagreed about the calculation of the ordered damages
and fees. The award clearly informs the parties of the conduct
required of them, and PNGI does not suggest any reason why the
offset, attorney’s fees, and cost amounts are not easily
ascertainable or calculable. We therefore reject as without
merit PNGI’s contention that vacatur of the arbitral award was
required because it was not final and definite. See Smart v.
Int’l Bhd. of Elec. Workers, Local 702, 315 F.3d 721, 725-26
(7th Cir. 2002); Flender Corp. v. Techna-Quip Co., 953 F.2d 273,
280 (7th Cir. 1992).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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