Opinion
Consolidated, Case No. 2:03-CV-565 TS
October 2, 2003
ORDER DENYING PLAINTIFFS MOTION TO VACATE
I. INTRODUCTION
This matter came before the court on September 29, 2003, for hearing on Plaintiffs Motion to Vacate arbitration award under the Federal Arbitration Act (FAA). The subject of this Motion to Vacate is the June 11, 2003, appraisal (the Third Appraisal) prepared by Management Planning Inc. (MPI) for the purpose of setting the price for the exercise of Plaintiff's option to purchase The Salt Lake Tribune newspaper and related assets (the Tribune Assets). Plaintiff moves to vacate that Third Appraisal pursuant to § 10 of the Federal Arbitration Act (FAA). The court finds that Plaintiff has not met the extremely high standard for vacating arbitration awards under the FAA. Accordingly, the court w! I deny Plaintiff's Motion to Vacate. The issue of the validity of the Third Appraisal being determined, the court will re-start the previously-tolled 120-day period for closing in elated case, Salt Lake Tribune Publishing Co. LLC v. ATT, Case No. 2:00-CV-936 is (the Tribune case). The court intends to proceed with the November jury trial in the tribune case.
II. BACKGROUND
Plaintiff's option to purchase the Tribune Assets arises under the July 31 1997, Option Agreement between Plaintiff and Kearns-Tribune. At the time the Option Agreement was executed, Kearns-Tribune was owned by Tele-Communications, Ind (TCI). It was later owned by ATT. It is currently owned by MediaNews Group, Inc. Kearns-Tribune and its current owner are jointly referred to in this and related cases as the MediaNews Defendants.
The history of the creation of Plaintiff in 1997 by a group of former shareholders in Kearns-Tribune and Kearns-Tribune's ownership since then are set forth in the November 16, 2001 Order in the Tribune case.
The Option Agreement provides for the exercise of the option to purchase the Tribune Assets for the "Exercise Price." Pl.'s Ex. 1, at ¶ 2(a). The Exercise Price is the subject of paragraph 2 of the Option Agreement:
(a) The . . . [Exercise Price] . . . shall be equal to the Fair Market Value of the Tribune Assets, determined on a going concern or liquidation basis whichever would yield the higher result, as of the last day of the month preceding the month of the Notice Date . . . The term "Fair Market Value" when used with reference to the Tribune Assets, shall mean the price at which a willing seller would sell, and a willing buyer (having full knowledge of the facts) would buy, the Tribune Assets in an arms' length auction transaction without time constraints and without being under any compulsion to buy or sell.Id. ¶ 2(a) (italicized emphasis added).
The Option Agreement provides that, if the parties cannot agree on the Exorcise Price, then each shall obtain an appraisal, and if those appraisals are more than ten percent apart in value:
then such two Appraisers shall jointly select a third Appraiser (who shall be a person or entity who is not then providing advisory services to [the parties]) and, in such case the Fair Market Value of the Tribune Assets shall be equal to the average of the two closest Appraised Values reported by the three Appraisers, provided, however, that if the highest and the lowest of such three Appraised Values differ from middle by an equal amount, then the Fair Market Value of the Tribune Assets shall be equal to such middle determination.Id. ¶ 2(b) (underlined emphasis in original).
The parties did not agree on the Exercise Price and, pursuant to paragraph 2(a), each hired its own appraiser. Pursuant to paragraph 2(a) of the Option Agreement, the appraisals under that paragraph are to be as of July 31, 2002. The Media News Defendants' appraiser is Owen Van Essen of Dirks, Van Essen Murray. Mr. Van lessen appraised the value of the Tribune Assets on July 31, 2002, at $380 million. Plaintiff's appraiser is Willamette Management Associates. Willamette appraised the value of the Tribune Assets on July 31, 2002, at $216 million. The values being more than ten percent apart, the parties turned to a third appraiser. At the time the parties were selecting it third appraiser in the fall of 2002, the parties herein and others were already engaged in the Tribune case, a suit involving the Option Agreement and a related Management Agreement.
The Option Agreement provides that the third appraiser shall deliver its report "as early as possible and in any event within 20 days of its selection." Id. ¶ 2(c). It further provides as follows:
(d) Each determination of the Fair Market Value of the Tribune Assets . . . by agreement . . . or in accordance with the appraisal provisions of this paragraph 2 shall be final, binding and conclusive.Id. ¶ 2(d) (italicized emphasis added).
The parties selected MPI as their Third Appraiser under paragraph 2(b) of the Option Agreement by means of an acceptance of MPI's November 27, 2002, Proposal Letter agreeing to perform "an independent appraisal of the Tribune Assets as defiled in the Option Agreement" and quoting the Option Agreement's definition of fair market Value. Pl.'s Ex. 2 at 2. The Proposal Letter agrees that a draft copy of the report will be made available to the parties' appraisers. Id. at 3. The Proposal Letter further provides as follows:
Methodology
We would value Salt Lake Tribune on a controlling interest basis employing such methodology(ies) as we determine in our professional judgment in accordance with our usual practice.
Our analyses, opinions and conclusions will be in conformity with the Uniform Standards of Professional Appraisal Practice of the Appraisal Foundation and the Principals of Appraisal Practice and Code of Ethics of the American Society of Appraisers, and the terms of the Option Agreement. If MPI determines that the terms of the Option Agreement preclude an appraisal in accordance with the above industry standards and principles, then MPI will report this conflict to the parties, and the parties agree to then seek guidance from the Court to resolve that conflict.
Hereinafter USPAP Standards.
Pl's Ex. 2, at 2-3 (italicized emphasis added).
The 20-day period provided for the issuance of the Third appraisal was substantially extended when Plaintiff filed suit against MPI in the New Jersey courts seeking to prevent the issuance of the final draft of the Third Appraisal because it contended that MPI failed to follow the USPAP Standards as set forth in the Proposal Letter.
MPI eventually met with Plaintiff, the MediaNews Defendants, and their res counsel and appraisers, regarding the draft appraisal.
On June 11, 2003, MPI issued its final draft appraisal in the amount of $33 million (the Third Appraisal). On June 24, 2003, Plaintiff filed the present case seeking to set aside the Third Appraisal on various grounds. The court held that the Third Appraisal was an arbitration subject to the Federal Arbitration Act (FAA). Although strongly disagreeing that the Third Appraisal is an arbitration, on September 11, 2003, Plaintiff filed related Case No. 2:03-CV-785-TS seeking to vacate the Third Appraisal pursuant to § 10 of the FAA. On September 24, 2003, the court sua sponte ordered the consolidation oi related Cases No. 2:03-CV-565 TS and 2:03-CV-785 TS. Currently pending in the consolidated case are the Motions to Dismiss filed by MPI and the MediaNews Defendants. Those motions remain under advisement and will be addressed by the court in a future order.
III. STANDARD OF REVIEW
Under the FAA, federal courts have authority to vacate an arbitration award only under very limited circumstances. The FAA provides that this court may make an order vacating an award:
(1) where the award was procured by . . . fraud, . . .
(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 made9 U.S.C. § 10(a)(1) and (4).
In addition to the reasons specified in § 10, the courts have created additional, but extremely limited and narrow, grounds for vacating the arbitrator's award:
Once a dispute is properly before an arbitrator, the function of the courts in reviewing the arbitrator's decision is quite limited. A court may only vacate an arbitration award for reasons enumerated in the Federal Arbitration Act, 9 U.S.C. § 10, or for a handful of judicially created reasons. . . . Errors in either the arbitrator's factual findings or his interpretation of the law (unless that interpretation shows a manifest disregard of controlling law) do not justify review or reversal on the merits of the controversy. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36-38 (1987); ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1463 (10th Cir. 1995); Bowles, 22 F.3d at 1012. Because of the courts' limited ability to review arbitration awards, their powers of review have been described as "among the narrowest known to the law." ARW Exploration, 45 F.3d at 1462.
Neither [the Tenth Circuit] nor the district court, . . . has the authority to second-guess the arbitrator's findings or conclusions. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. at 45.Denver Rio Grande Western R. Co. v. Union Pacific R. Co., 119 F.3d 847, 848-49 (10th Cir. 1997) (citations and internal quotations partially omitted).
We employ this limited standard of review and exercise caution in setting aside arbitration awards because one "purpose behind arbitration agreements is to avoid the expense and delay of court proceedings." Foster, 808 F.2d at 42. A court may not, therefore, independently judge an arbitration award.
Mindful of the strong federal policy favoring arbitration, a court may grant a motion to vacate an arbitration award only in the limited circumstances provided in § 10 of the FAA . . . or in accordance with a few judicially created exceptions. . . . [Defendant] argues the arbitration panel's decision is in "manifest disregard of the law," a judicially crafted exception to the general rule that arbitrators' "erroneous interpretations or applications of law are not reversible." ARW Exploration Corp., 45 F.3d at 1463. We have interpreted manifest disregard of the law to mean "willful inattentiveness to the governing law." Id. Requiring more than error or misunderstanding of the law, a finding of manifest disregard means the record will show the arbitrators knew the law and explicitly disregarded it.Bowen v. Amoco Pipeline Co., 254 F.3d 925, 932 (10th Cir. 2001).
So long as an arbitrator draws his decision from the parties' agreements, a reviewing court is generally precluded from disturbing the award. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36 (1987) (citing Steelworkers v. Enterprise Wheel Car Corp., 363 U.S. 593, 597 (1960)). "[A] federal court may not overrule an arbitrator's decision simply because j the court believes its own interpretation of the contract would be a better one." W.R. Grace and Co. v. Local Union No. 759, 461 U.S. 757, 764 (1983). "[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Misco, 484 U.S. at 38.Seymour v. Blue Cross/Blue Shield, 988 F.2d 1020, 1022 (10th Cir. 1993) (citations partially omitted).
Under . . . the [FAA] . . ., a court may vacate an arbitration award where "the award was procured by corruption, fraud, or undue means." 9 U.S.C. § 10(a). However, in order to protect the finality of arbitration decisions, courts must be slow to vacate an arbitral award on the ground of fraud. The party asserting fraud must establish it by clear and convincing evidence . . .Foster v. Turley, 808 F.2d 38, 42 (10th Cir. 1986) (citations and internal quotations artially omitted).
IV. ANALYSIS
A. Plaintiff's Contentions
Plaintiff contends that the Third Appraisal must be vacated on the following grounds: First, because MPI "exceeded its powers" within the meaning of § 10(a)(4) by dev sing its own definition of "fair market value" instead of the definition set forth in the Option Agreement. Second, that MPI "manifestly disregarded" governing law, namely the definition of fair market value in the Option Agreement and the written USPAP Standards. Third, Plaintiff contends that MPI's alleged manifest disregard of the governing law is constructive fraud. At oral argument, Plaintiff added a fourth reason, fraud under § 10(a)(1) of the FAA.
B. Exceeding Powers
Plaintiff's first contention is that MPI exceeded its powers. The FAA permits vacating an arbitration award when "the arbitrators exceeded their powers." 9 U .S.C. § 10(a)(4). Plaintiff contends that MPI did so by devising its own definition of "fair I market value."
MPI's Third Appraisal states it was prepared in conformity with the USPAP Standards, quotes the definition of fair market value provided in the Option Agreement, and informs the parties as follows:
E.g. Pl.'s Ex. 36 (Appraisal Certification).
MPI did not find any conflict between the Option Agreement definition and the American Society of Appraisers or IRS-related definitions. The "auction transaction" reference in the Option Agreement is seen as emphasis of the need for adequate exposure to assure that the Tribune Assets will be available to all likely prospective buyers so as to maximize their value upon sale. The reference to an open and unrestricted market contained in the definition of the American Society Appraisers has the same connotation.
Therefore, for all practical purposes, MPI has accepted the Option Agreement definition of fair market value as conceptually equivalent to the definitions under professional appraisal standards guiding business valuations.
Pl.'s Ex. 36 at 10.
In the Letter of Transmittal which prefaces the Third Appraisal, MPI says,
In assessing the definition of fair market value as contained in the Option Agreement, MPI considered the premise of value to be a control value which would be realized in an "arm's length auction transaction" of the Tribune Assets in continued use as part of a newspaper publishing enterprise. As such, we will refer to our conclusion of value of the Tribune Assets as the fail market value on an "Auction Sale" basis. The term auction is significant because prospective willing buyers of the Tribune Assets would reasonably include large and sophisticated industry buyers who would be cognizant that the highest bid would win the auction.
Pl's Ex. 36, Transmission Letter at 3. MPI notes in a footnote to this discussion of fair market value on an auction sale basis, what it later explained fully in the body of the appraisal, supra, that it determined that no conflict exists between the Option Agreement's definition of fair market value and the USPAP Standards. Id. at n. 4.
In support of its position that this court should review the Third Appraisal to determine if it complies with USPAP and the Option Agreement's definition of fair market value, Plaintiff relies on Marceron v. Chevy Chase Services, Inc., 258 F.2d 155, (D.C. Cir. 1958). Marceron is inapposite. The court in Marceron determined that the appraisers therein were performing a narrower function than that of an arbitrator. Thus, Marceron ron's discussion of arbitrators is dicta. Further, the issue of formula involved in Marceron was the three appraisers' interpretation of the formula for which their appraised values would be used; not the formulas they each used to determine the value of defined properly. In the present case, MPI's Third Appraisal set a value of the defined assets at $331 million, but does not determine how that value works with the other appraisals under the formula for using the three appraisals to determine the Exercise Price, which was the issue in Marceron.
In the present case the formula analogous to the formula at issue in Marce on would be the Option Agreement's formula for determining if an average of the two closest appraisal should be used or if a middle determination of the highest and lowest appraisals should be used. Pl.'s Ex. 1 at ¶ 2(b).
Plaintiff also cites case law for the unremarkable proposition that an arbitrator must not exceed the confines of the interpretation and application of the contract submitted to it. In the present case, the request made of MPI was to determine the value of the "ribune Assets pursuant to the Option Agreement's paragraph 2, MPI did so, and therefore, MPI was clearly within the confines of the operative agreement.
In support of its argument that MPI exceeded its authority, Plaintiff offers e evidence of what the parties intended by the definition of fair market value when they entered into the Option Agreement in 1997. Plaintiff contends that the parties intended to have fair market value at the time of the exercise of the option determined under the same standard that it alleges the parties used in 1997. The MediaNews Defendants object to the consideration of such extrinsic evidence, but counter that if it were considered, it would show that the standard MPI applied reflects the intent of the parties.
The court finds that the meaning of the Option Agreement's definition of fair market value is clear from its plain language. Where there is nothing ambiguous about the language of the definition of fair market value, there is no reason for the court to consider extrinsic evidence as to its meaning. See Washington Square Securities, Inc. v. Aune, 253 F. Supp.2d 839, 845 (W.D.N.C. 2003) ("Court need not resort to extrinsic evidence when the language of the NASD Arbitration Code provisions are not ambiguous").
Further, the interpretation urged by Plaintiff would eliminate the disputed phrase "auction transaction" — a result at odds with the plain meaning of the express language of the Option Agreement's definition of fair market value.
The court finds that MPI did not exceed its authority by applying the meaning of fair market value as it did in its appraisal. It agreed to conduct an appraisal based upon the language of the Option Agreement and the USPAP Standards. As was explained in Seymour, supra, as "long as the arbitrator is even arguably construing or applying the contract and acting within the scope of [its] authority, that a court is convinced he committed serious error does not suffice to overturn [its] decision." 988 F.2d it 1022. Reviewing MPI's Third Appraisal, the parties' contentions and their supporting exhibits, the court finds that MPI was, at the very minimum, "even arguably construing or applying" the standard set forth in the Option Agreement and the USPAP Standards. Therefore it has not been established that MPI exceeded its powers within the meaning of section 10(a)(4) of the FAA. As a result, even if MPI applied the applicable standards erroneously, the arbitration award may not be vacated. Seymour v. Blue Cross/Blue Shield, 988 F.2d at 1022; Kelly v. Michaels, 59 F.3d 1050, 1053 (10th Cir. 1995) (So "long as an arbitrator draws his decision from the parties' agreements, a reviewing court is generally precluded from disturbing the award.").
The court would further note that there is nothing to convince the court that MPI misapplied the language of fair market value as contained in the Option Agreement or the USPAP Standards.
C. Manifest Disregard
Plaintiff next contends that MPl's appraisal is in "manifest disregard of the law," a judicially crafted exception to the general rule that arbitrators' "erroneous interpretations or applications of law are not reversible." ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1463 (10th Cir. 1995).
The Tenth Circuit has interpreted "manifest disregard of the law" to me an "willful inattentiveness to the governing law. . . . Requiring more than error or misunderstanding of the law, a finding of manifest disregard means the record will show the arbitral ors knew the law and explicitly disregarded it." Bowen, supra, 254 F.3d at 932.
The court rejects Plaintiff's position that the USPAP Standards are "governing law" within the meaning of this exception. To adopt such a position would create! a vehicle allowing the losing party to obtain court review of the merits of any arbitration award where the arbitrator is a member of any profession with articulated written standards. As noted in the Second Circuit case, Hoeft v. MLV Group, 2003 WL 22048228 (September 3, 2003), a similar set of professional standards, Generally Accepted Accounting Principal (GAAP), are "not sufficiently well-defined or explicit to constitute `law' within the meaning of the manifest disregard standard." Id. at *11.
Further, at most, all of Plaintiff's submissions about the alleged disregard of the USPAP Standards allege errors of fact-that MPI relied on the wrong facts to determine value. The alleged errors include alleged false assumptions regarding control errors in application of three methods of valuation, and "cherry-picking" of comparables. Such wholesale second-guessing of the merits of arbitration awards is not the purpose of the extremely deferential and limited standard of review under the FAA. As the Tenth Circuit has noted, this court does not have "the authority to second-guess the arbitrator's findings or conclusions." Denver Rio Grande Western R. Co., supra, 119 F.3d at 849.
Plaintiff notes that the parties' experts differ completely on their interpretations of the USPAP Standards, the Option Agreement's definition of fair market value, and their opinions on whether MPI's Third Appraisal complies with those standards. Plaintiff requests that this court hold an evidentiary hearing to determine the credibility of the various experts on the issue of whether MPI manifestly disregarded the USPAP Standards and the Option Agreement's definition of fair market value.
The court finds an evidentiary hearing on expert testimony is neither required nor appropriate. The parties agreed to hire and rely on professionals to determine the value of the Tribune Assets. Professionals use judgment to determine what facts to rely on for their opinions. The fact that there are such conflicting opinions by the parties experts shows that the range of professional judgment is broad. If this court were to lave an evidentiary hearing regarding the opinions or the credibility of those conflicting e perts, it would simply be finding facts or imposing its own interpretation of the Option Agreement-a procedure expressly prohibited under the FAA. Bowen v. Amoco Pipeline Co., 254 F.3d at 932 ("court may not independently judge an arbitration award").
Plaintiff's arguments regarding manifest disregard are nothing more than an extensive and extremely detailed list of alleged errors in the Third Appraisal, However, errors, even serious errors, in the arbitrator's factual findings do not justify vacating an award under the FAA. Seymour v. Blue Cross Blue Shield, 988 F.2d at 1022; Denver Rio Grande Western, 119 F.3d at 849 ("the factual finding of the arbitrator are insulated from judicial review").
D. Constructive Fraud
Plaintiff also contends that the award should be vacated as a "constructive fraud." Plaintiff contends that the Third Appraisal is so flawed, result-oriented, grossly disproportionate and erroneous that it constitutes constructive fraud. Plaintiff relies on the case, Anthony P. Miller, Inc. v. Wilmington Housing Auth., 179 F. Supp. 199, (D. Del 1959), which is not an FAA case.
Constructive fraud is not a basis for vacating an arbitration award under the FAA. The court will decline Plaintiff's invitation to add a new ground to the handful of Judicially created grounds upon which an arbitration award can be vacated.
E. Fraud
Lastly, at the hearing, Plaintiff attempted to add a claim of actual fraud, a ground for vacating an award under § 10(a)(1), of the FAA, quoted above. The court finds that Plaintiff has not alleged grounds for actual fraud, much less shown by clear and con' `incing evidence that the Third Appraisal should be set aside for fraud. Foster, supra, 808 F.2d at 42.
VI. MOTION TO FILE SUPPLEMENTAL EXHIBITS
At the hearing in this matter, the MediaNews Defendants sought to file Supplemental Exhibits in support of their Opposition to the Motion to Vacate, Some background is necessary to understand the request. In its September 29, 2003, Order Denying Plaintiff's Motion to Strike MPI's Submission, the court declined to strike MP's j Submission but ruled that it would not be considered for purposes of the present Motion to Vacate. In so doing, the court noted that under the circumstances of this case, it would be unfair to MPI not to allow it to have its defense of Plaintiff's accusations against it remain in the public record. At the hearing on the present Mot/on to Vacate, Plaintiff moved for admission of its Fourth Declaration of Z. Christopher Mercer (Fourth Mercer Declaration), on the grounds that it responded to MPI's Submission. Plaintiff argued that it should be part of the record of the case if the MPI Submission remained part of the case. The court admitted the Fourth Mercer Declaration for this case generally, but noted that, like MPI's Submission, it would not be considered for purposes of the Motion to Vacate.
The MediaNews Defendants also moved at the hearing to supplement the record with additional exhibits (the MediaNews Defendants' Supplemental Exhibits) and Plaintiff objected. The MediaNews Defendants seek to make their Supplemental Exhibits part of the record on the Motion to Vacate. The court did not review or consider the MediNews Defendants' Supplemental Exhibits prior to announcing its ruling at the close of the hearing. Having reviewed the Supplemental Exhibits since then, the court finds that they generally appear to be material offered in rebuttal to Plaintiff's argument that the Option Agreement's definition of fair market value must be construed consistently with Plaintiffs proffered extrinsic evidence of the parties' intent.
The court notes that the MediaNews Defendants prepared and submitted their Opposition and supporting exhibits in an extremely short time. They stipulated to the shorter response time at the request of the court for the purpose of making it possible for the Motion to Vacate to be determined expeditiously, allowing for a closing date prior to the November trial date. In its Reply, Plaintiff made additional argument on its position on extrinsic evidence and filed additional exhibits in support. Some of the Reply exhibits were new. E.g. Pl.'s Reply, Exs. 10, 11 and 13. Plaintiff's Reply and supporting exhibits were filed only three working days prior to the hearing. That was an insufficient time for the MediaNews Defendants to request leave to file, prepare and submit a surreply.
For the reasons stated above, the court determined that there is no reason to consider extrinsic evidence. However, the parties are entitled to have the record reflect their arguments and exhibits on the issue, including the MediaNews' Defendants' Supplemental Exhibits in response to Plaintiff's new Reply exhibits. Accordingly, the MediaNews Defendants' Supplemental Exhibits will be admitted.
VI. CONCLUSION AND ORDER
This court must employ the limited standard of review under the FAA and "exercise caution in setting aside arbitration awards because one purpose behind arbitration agreements is to avoid the expense and delay of court proceedings." Bowen, 254 F.3d at 932. In this case, Section 2(a) of the Option Agreement was negotiated and entered into by Plaintiff, freely, without duress. The record shows it was carefully and meticulously considered by Plaintiff. Plaintiff took advantage of access available to it to obtain expert advice from both local and national sources. Plaintiff agreed to language that is clear and concise. That language dictates a process whereby the price to be paid for the Tribune Assets under the Option Agreement is to be determined. It is clear to this court from that plain language that the parties, Plaintiff included, intended a process that woud be relatively short in duration, simple in its operation, and with no recourse to the courts. The plain language of Section 2(d) is compelling, "Each determination of the Fair Market value of the Tribune Assets . . . in accordance with the appraisal provisions of this paragraph 2 shall be final, binding and conclusive." The court believes that Plaintiff must be bound by that agreement and must accept the consequence of its contract, be it good or bad.
This short and simple process has now been delayed almost a full year. In related Case No. 2:00-CV-936 TS, this court has set four separate firm and first-place trial settings only to have each setting vacated at the last minute because the case would not be ready for trial until after a closing. Despite repeated expedited hearings on expedited briefings on a variety of issues this case still evades resolution.
At the hearing, the parties stipulated that eight days remain of the 120-day period for closing. The court has previously tolled the 120-day period in the Tribune cases. By simultaneous order in the Tribune case the court is ending that tolling. As of Friday, October 3, 2003, the 120-day period is running.
It is therefore
ORDERED that Plaintiff's Motion to vacate is DENIED. It is further
ORDERED that the MediaNews Defendants' Supplemental Exhibits Nos. 59 though 67 are admitted. It is further
ORDERED that MPI and the MediaNews Defendants are not required to the their Answers to Plaintiff's Complaint until after the pending Motions to Dismiss are determined.