Opinion
Civil Action No. 12-cv-00650-CMA-MJW
05-04-2012
GENOS "D.J." WILLIAMS Petitioner, v. NATIONAL FOOTBALL LEAGUE, Respondent.
ORDER ON
MOTION FOR CLARIFICATION OF SCHEDULING ORDER, FOR THE RIGHT TO
TAKE DEPOSITIONS AND STAY MOTIONS FOR SUMMARY JUDGMENT PENDING
LIMITED DISCOVERY (Docket No. 42)
MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this court pursuant to an Order Referring Case (Docket No. 7) issued by Judge Christine M. Arguello on March 16, 2012.
Petitioner Genos "D.J." Williams brought this matter to vacate arbitration awards upholding petitioner's suspension. Petitioner seeks an order permitting the deposition of arbitrator Harold Henderson, who issued the arbitration award, and Jeffrey Pash, general counsel for respondent National Football League. Petitioner argues the depositions are necessary to further address petitioner's claim that Mr. Henderson and Mr. Pash engaged in ex parte communications which prejudiced petitioner.
Judicial review of an arbitration award "is among the narrowest known to the law." Champion Boxed Beef Co. v. Local No. 7 United Food & Commercial Workers Int'l Union, 24 F.3d 86, 87 (10th Cir. 1994) (internal quotations omitted). "In consenting to arbitration, a party trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration." Bowen v. Amoco Pipeline Co., 254 F.3d 925, 932 (10th Cir. 2001) (citation and internal quotations omitted). Accordingly, post-arbitration discovery is often prohibited. See, e.g., Amicorp Inc. v. Gen. Steel Domestic Sales, LLC, No 07-cv-01105-LTB-BNB, 2007 WL 2890089, at *5 (D. Colo. Sept. 27, 2007), aff'd, 284 Fed. Appx. 527 (10th Cir. 2008); Midwest Generation EME, LLC v. Continuum Chem. Corp., 786 F. Supp. 2d 939, 943 (N.D. Ill. 2010).
A party seeking vacatur must present "clear evidence of impropriety" to be allowed post-award discovery into potential arbitrator bias. See Lucent Techs. Inc. v. Tatung Co., 379 F.3d 24, 32 (2d Cir. 2004). Generally, in order to vacate an arbitration award due to ex parte communications, a party must show that those communications prejudiced the party. See Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1271 (10th Cir. 1999). Accordingly, petitioner is entitled to the discovery sought if he has presented clear evidence of prejudicial ex parte communications.
Respondent does not dispute that ex parte communications took place between Mr. Henderson and Mr. Pash following the arbitration hearing. In an email written by Mr. Henderson on January 19, 2012, Mr. Henderson stated that he "was asked [by Mr. Pash] to delay a decision on this matter to afford an opportunity for the parties to the governing collective bargaining agreement, the NFL and the NFLPA, to explore an agreed resolution of this dispute." (Def's Exh. 4, Docket No. 41). Petitioner argues he was prejudiced by this delay because the threat of suspension hung over his head for months instead of days. Further, petitioner argues the delay prevented him from beginning his suspension during the 2011 season, and since petitioner's salary is higher in 2012, the delay thus cost him a larger cumulative amount of salary.
The court finds that petitioner has failed to present clear evidence that the ex parte communication between Mr. Henderson and Mr. Pash prejudiced him. The only evidence presented by petitioner, and the only prejudice claimed by petitioner, relate to the delay in Mr. Henderson's decision; petitioner has presented no evidence that Mr. Pash somehow influenced Mr. Henderson's ultimate decision. In other words, the ex parte communication involved an issue which is collateral to the arbitration award. Accordingly, petitioner has failed to demonstrate that the ex parte communication prejudiced him with regard to the arbitration award. Petitioner cannot request discovery on the basis of a collateral issue in order to seek evidence of actual arbitrator bias. Allowing petitioner to do so would be inconsistent with the objectives of arbitration and the limited nature of arbitration reviews.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that petitioner's Motion for Clarification of Scheduling Order, for the Right to Take Depositions and Stay Motions for Summary Judgment Pending Limited Discovery (Docket No. 42) is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED as to Clarification of the Scheduling Order as outlined in detail below. The remainder of the Motion is DENIED as stated in detail below. It is further
ORDERED that petitioner's request to depose Mr. Henderson and Mr. Pash is DENIED. It is further
ORDERED that petitioner's request to stay any motions for summary judgment is DENIED. It is further
ORDERED that the parties are to complete an "Administrative Record Review Scheduling Order" (form available on the court's website), adapting it where necessary for an arbitration review, and submit it no later than five days prior to the scheduling conference.
Date: May 4, 2012
Denver, Colorado
______________________
Michael J. Watanabe
United States Magistrate Judge