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United States District Court,
S.D. Mississippi, Jackson Division.
 COUNTRYWIDE HOME LOANS, INC. Plaintiff
v.
Charles A. DAVIS and Vera Davis Defendants

No. Civ.A.3:03-CV-1562BN.
Jan. 19, 2005.

OPINION AND ORDER
BARBOUR, J.
*1 Before the Court are two Motions of Defendants. First is Defendants' Motion to Amend Complaint, dated November 26, 2004. Second is Defendants' Motion Requesting Court to Examine Affidavits Prior to Dismissing Claims and Entering Arbitration Order, also dated November 26, 2004. The Court construes both motions as Motions to Vacate Arbitration Award. For the reasons that follow, the Court finds the Motions are not well taken and should be denied.

I. Factual & Procedural History
On August 6, 2002, Defendants filed a complaint against Plaintiff in the Second Judicial District of the Circuit Court of Hinds County, Mississippi, alleging state law causes of action. On October 4, 2002, Defendants filed a Complaint in this Court seeking to compel to arbitration Defendants' claims against Plaintiff in the underlying state court action. On December 13, 2002, this Court issued an Opinion and Order which compelled to arbitration “all” of Defendants' claims against Plaintiff. Opinion and Order, p. 4, docket entry no. 4, dated December 13, 2002. Defendants arbitrated their claims against Plaintiff, and the arbitrator, Richard T. Bennett, rendered his decision on November 5, 2004, in which he found Defendants were entitled to no relief and that each party should bear its own costs of attorney fees and expenses. Award of Arbitrator, attached as Exhibit “12” to Plaintiff's Response to Motion to Amend Complaint, December 13, 2004. Aggrieved by the outcome, Defendants filed the instant two motions.

II. Standard of Review
Generally, a district court's “review of an arbitration award is extraordinarily narrow.” Gateway Tech., Inc. v. MCI Telecomm. Corp., 64 F.3d 993, 996 (5th Cir.1995) (quoting Antwine v. Prudential Bache Sec., Inc., 899 F.2d 410, 413 (5th Cir.1990).

In a proceeding to confirm or vacate an arbitration award, the Federal Arbitration Act (“FAA”) circumscribes the review of the court, providing that an award shall not be vacated unless: (1) the award was procured by corruption, fraud, or undue means; (2) there is evidence of partiality or corruption among the arbitrators; (3) the arbitrators were guilty of misconduct which prejudiced the rights of one of the parties; or (4) the arbitrators exceeded their powers. 9 U.S.C. § 10(a)(1)(4) (Supp.1995). Forsythe Int'l, S.A., 915 F.2d at 1020.

 Gateway Tech., Inc. v. MCI Telecomm. Corp., 64 F.3d 993, 996 (5th Cir.1995).

III. Analysis
Although Defendants do not entitle their motions as Motions to Vacate Arbitration Award, that is exactly what they seek to do. As discussed below, the information which Defendants have supplied to this Court is wholly insufficient to vacate the findings in the arbitration award. Because there is no reason upon which the Court should vacate the arbitration award, the award is final and represents the resolution of all claims Defendants had against Plaintiff. The Court, in a case that should now be dismissed with prejudice, cannot entertain motions such as the two Motions in this case which simply seek to keep this action alive when it is only proper to put it to rest. Therefore, the two Motions in this case are not well taken and are denied. Furthermore, Defendants' claims against Plaintiff are dismissed with prejudice.

III.A. Defendants' Motion to Amend Complaint
*2 Defendants' Motion to Amend Complaint, in its entirety, reads as follows:

COMES NOW, CHARLES AND VERA DAVIS and file this their Motion to Amend the Complaint and would state as follows:

1. The Court has jurisdiction of the subject matter and the parties.

2. This matter was originally removed from Circuit Court and then sent to arbitration.

3. The arbitration has concluded; however, it did not dispose of certain claims and causes of action which accrued against [Plaintiff] after the Complaint in Circuit Court was filed by the [Defendants].

4. In the interests of justice and for judicial economy, the Davis' seek to amend the Complaint as opposed to filing a new lawsuit.

WHEREFORE PREMISES CONSIDERED, Charles and Vera Davis pray that the Court grant the Motion to Amend the Complaint.

Id., dated November 26, 2004. For the present purposes, the operative provision above is subsection (3).

Given that this is all of the information that Defendants provided to the Court, the Court tends to agree with Plaintiff's assessment:

It is difficult to understand how the Defendants could in good faith contend that the arbitration did not dispose of claims which arose after they filed their Lawsuit in August, 2002. One indication that Defendants' contention is without merit is the fact that the Defendants did not identify, explain or describe the ‘certain claims' that were not disposed of. What are those ‘certain claims?’ Defendants expect not only [Plaintiff] to respond in a vacuum, but the Court to rule in a vacuum.

The speciousness of this contention is also evidenced by the lengthy passage of time between the state court Complaint and the closing of the case on October 18, 2004. If these are claims the Defendants never raised during the arbitration, then there is no excuse for that failure. There were almost two years that passed between the filing of the Lawsuit and the hearing before the arbiter. Another three months passed in which these ‘certain claims' could have been addressed with the arbitrator.

The reality is, though, these ‘causes of action which accrued against [Plaintiff] after the Complaint’ were asserted during the hearing, argued by the Davises in post-hearing briefs, and addressed by the Arbitrator....

Plaintiff's Response to Motion to Amend Complaint, pp. 3-4.

Defendants' conclusory assertion that “certain claims and causes of action ... accrued against [Plaintiff] after the Complaint in Circuit Court was filed by the [Defendants']” is a wholly insufficient ground, under any of the four applicable standards of review noted above, to vacate the arbitration award.

III.B. Defendants' Motion Requesting Court to Examine Affidavits Prior to Dismissing Claims and Entering Arbitration Order
As Defendants' second attempt to effectively vacate the arbitration award, they filed the instant Motion Requesting Court to Examine Affidavits Prior to Dismissing Claims and Entering Arbitration Order. The Motion, in its entirety, reads as follows:

*3 COMES NOW, CHARLES AND VERA DAVIS and file the instant Motion and would state as follows:

1. The Court has jurisdiction of the subject matter and the parties.

2. This matter was originally removed from Circuit Court and then sent to arbitration.

3. The arbitration has concluded; however, matters stated in the award and opinion, upon which the arbitrator relied, are in direct opposition to testimony given. To that end, the Davis' will submit affidavits as to the testimony given by certain parties.

4. Further, the Davis' have filed a Motion to Amend the Complaint which the Court may want to review or consider prior to entering an arbitration [sic]

WHEREFORE PREMISES CONSIDERED, Charles and Vera Davis pray that the Court grant the instant Motion.

Id. As with the Motion discussed above, the operative provision is subsection (3) of the Motion.

And, again, given that this is all of the information that Defendants' provided the Court, the Court tends to agree with Plaintiff's assertions:

The Defendants provide no details as to the testimony at issue or who would execute the affidavits. The Motion is filed without any support that would substantiate their contentions.

Finally, the Defendants had months to procure the services of a court reporter. They elected not to incur the cost and expense of transcribing three days of testimony. The instant motion is tantamount to asking this Court to step in as the fact finder and determine the truth between an Award of the Arbitrator and the affidavits. There is [sic] no legal or faactual [sic] grounds cited by the Defendants for the Court to stay entry of the Award.

Plaintiff's Response to Motion Requesting Court to Examine Affidavits Prior to Dismissing Claims and Entering Arbitration Order, p. 2, dated December 13, 2004.

As above, the conclusory assertion in subsection three is a wholly insufficient ground, under any of the four applicable standards of review noted above, upon which to vacate an arbitration award.

IV. Conclusion
IT IS THEREFORE ORDERED that Defendants' Motion to Amend Complaint [5-1], which the Court construes as a Motion to Vacate Arbitration Award, is not well taken and is denied.

IT IS FURTHER ORDERED that Defendants' Motion Requesting Court to Examine Affidavits Prior to Dismissing Claims and Entering Arbitration Order [6-1], which the Court construes as a Motion to Vacate Arbitration Award, is not well taken and is denied.

IT IS FURTHER ORDERED that the Award of Arbitration is confirmed. This case is dismissed, with prejudice.

IT IS FURTHER ORDERED that a final judgment will be entered this day reflecting the final resolution of this matter.

SO ORDERED.

FINAL JUDGMENT
In accordance with Rule 58 of the Federal Rules of Civil Procedure and the Opinion and Order signed January 18, 2005, the Award of the Administrator is confirmed. The Award of the Administrator provides:

1. The claims asserted by Charles A. Davis and Vera Davis against Countrywide Home Loans, Inc., are dismissed.

*4 2. Charles A. Davis and Vera Davis are not entitled to recover anything from Countrywide Home Loans, Inc.

3. Each party shall be responsible for their respective attorneys fees, costs and expenses incurred in connection with this Arbitration.

4. The administrative fees and expenses of the Association totaling $4,00.00 [sic] and the compensation and expenses of the Arbitrator totaling $12,822.25 shall be borne as incurred. Therefore, Countrywide Home Loans, Inc. shall pay to the Association the sum of $4,011.12 representing their share of amounts still due the Association and/or the Arbitrator. Charles A. Davis and Vera Davis shall pay to the Association the sum of $6,411.12 representing their share of amounts still due the Association and/or the Arbitrator.

5. This Award is in full settlement of all claims submitted to this Arbitration.

6. All Claims and objections not expressly granted herein are denied.

This case is hereby dismissed with prejudice.

SO ORDERED.

S.D.Miss.,2005.
Countrywide Home Loans, Inc. v. Davis
Not Reported in F.Supp.2d, 2005 WL 224197 (S.D.Miss.)

END OF DOCUMENT