Opinion
3:20-cv-00939-JR
11-21-2022
KINETIC SYSTEMS, INC., a California corporation, Plaintiff, v. GRAY CONSTRUCTION, INC., a Kentucky corporation; and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut corporation; Defendants.
FINDINGS AND RECOMMENDATION
RUSSO, MAGISTRATE JUDGE:
Plaintiff Kinetic Construction, Inc. (“Kinetics”) initiated this action against defendants Gray Construction, Inc. (“Gray”) and Travelers Casualty and Surety Company of America. The case was ultimately referred to private arbitration and, on October 19, 2022, the Amended Final Award was issued. Gray now moves for an order confirming that arbitration award and entering judgment in this case. For the reasons stated herein, Gray's motion should be granted. 1
DISCUSSION
As a result of the parties' arbitration proceedings, Gray was awarded $901,708.70 in relation to two construction projects, one in Bell County, Texas (“T-Plant”) and the other in Washington County, Oregon (“O-Plant”). In particular, Gray obtained “a net principal Award . . . in the amount of $64,559.70” after offsetting Kinetics' damages associated with the O-Plant against Gray's damages associated with the T-Plant, and “attorney's fees and costs” in the amount of $837,149. Smith Decl. Ex. A, at 12-13 (doc. 36-1).
Section 9 of the Federal Arbitration Act (“FAA”) provides in relevant part:
If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.9 U.S.C. § 9. And Section 13 of the FAA specifies:
The party moving for an order confirming, modifying, or correcting an award shall, at the time such order is filed with the clerk for the entry of judgment thereon, also file the following papers with the clerk: (a) The agreement; the selection or appointment, if any, of an additional arbitrator or umpire; and each written extension of the time, if any, within which to make the award. (b) The award. (c) Each notice, affidavit, or other paper used upon an application to confirm, modify, or correct the award, and a copy of each order of the court upon such an application. The judgment shall be docketed as if it was rendered in an action. The judgment so entered shall have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it is entered.9 U.S.C. § 13.
There is no indication that the arbitrator's Amended Final Award has been vacated under 9 U.S.C. § 10, or modified or corrected under 9 U.S.C. § 11. Further, pursuant to 9 U.S.C. § 9, Gray brought this action within one year of the issuance of the Amended Final Award. The papers required by 9 U.S.C. § 13 are attached as exhibits to the declaration of attorney Adam Smith, who 2 represented Gray in the underlying privately administered arbitration. Finally, Gray attempted to confer with Kinetic regarding this motion, and Kinetic never responded or otherwise filed an opposition.
RECOMMENDATION
Gray's unopposed Motion to Confirm Arbitration Award (doc. 35) should be granted and judgment should be entered: (1) confirming the Final Amended Award pursuant to 9 U.S.C. § 9; (2) awarding Gray the total sum of $901,708.70, plus post-judgment interest from the date of entry until paid at the interest rate applicable to federal court judgments, pursuant to 9 U.S.C. § 13; (3) releasing the T-Plant Lien and T-Plant Lien Bond, and the O-Plant Lien and O-Plant Lien Bond; and (4) awarding Gray its costs and expenses incurred in these proceedings, including attorneys' fees, in accordance with Section 17.4 of the parties' subcontracts. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation. 3