Opinion
No. 00 CIV. 2539 (DLC).
October 13, 2000.
MEMORANDUM OPINION ORDER
Petitioner Eleanore Green ("Green") moves for relief from this Court's August 25, 2000 Memorandum Opinion and Order denying her petition to vacate an arbitration award (the "Award") issued by a panel (the "Panel") of the National Association of Securities Dealers ("NASD") following a two-day hearing. Green argues that her failure to file a complete transcript of the hearing with her reply papers constitutes excusable neglect, entitling her to relief from the Court's Order dismissing her petition. In its August 25 Opinion, the Court had noted that Green's failure to provide the Court with a transcript made it impossible for the Court to evaluate whether Green could meet her burden of showing that the Panel's determination was based on a "manifest disregard" of the law or evidence. Green has provided a complete transcript in support of her motion for relief.
Without deciding whether Green's failure to file the transcript in connection with her original motion amounts to "excusable neglect" for purposes of Rule 60(b)(1), Fed.R.Civ.P., the Court holds that Green has failed to meet her burden of showing "manifest disregard" even if the transcript is considered.
The same conclusion is reached construing Green's Rule 60(b) motion as a timely filed motion under Rule 59(e), Fed.R.Civ.P., or for reconsideration under Local Civ. R. 6.3.
In its August 25 Opinion, the Court noted that Green had failed to cite any case law discussing the rules she alleges were violated by the defendants, or to provide any discussion showing how the evidence she cited showed a violation of those rules. Green has not provided any such discussion on her current motion, and has not identified anything in the newly submitted transcript that offers further support for her claims. As the Court concluded in its August 25 Opinion, "the evidence submitted by Green does not even in itself raise a serious question as to the merits of her claims, and the wisdom of the Panel's determination." The transcript submitted with this motion does not cure this defect.
Finally, the transcript itself demonstrates that there was ample evidence to support the Panel's conclusion. The Panel may have chosen to credit the testimony of respondent Howard Tharsing that he had frequent discussions with Green about her account, and his opinion that she understood the risks involved in her investments, and that her portfolio was appropriate for her stated investment objectives. Although the record contains evidence favorable to Green, this Court may not usurp the Panel's discretion to give to the testimony it heard the weight it deemed appropriate. Where "a ground for the arbitrator['s] decision can be inferred from the facts of the case," the Court cannot vacate the award, "even if the ground for their decision is based on an error of fact or an error of law." Willemijn Houdstermaatschappij, BV v. Standard Microsystems Corp., 103 F.3d 9, 13 (2d Cir. 1997) (internal quotations and citations omitted) The record belatedly submitted by Green contains ample grounds for the Panel's decision.
Accordingly, Green's motion for relief from judgment under Rule 60(b), Fed.R.Civ.P., is denied.
SO ORDERED: