11-3068 Krantz & Berman LLP v. Dalal

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in 2 the City of New York, on the 9 thday of July, two thousand twelve. 3 4 PRESENT: 5 JOSEPH M. McLAUGHLIN, 6 SUSAN L. CARNEY, 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges. 9

____________________________________________________________ 10 11 Krantz & Berman LLP, 12 13 Plaintiff-Appellee, 14 15 -v.- No. 11-3068 16 17 Sandeep Dalal, 18 19 Defendant-Appellant. 20

___________________________________________________________ 21 22 FOR APPELLANT: Sandeep Dalal, pro se , Houston, TX. 23 24 FOR APPELLEE: Larry H. Krantz, Krantz & Berman LLP, New York, NY. 25 26 Appeal from the United States District Court for the Southern District of 27 New York (Denise L. Cote,Judge ). 282 ON CONSIDERATION WHEREOF , it is hereby ORDERED , ADJUDGED , 1 and DECREEDthat the judgment of the District Court be and it hereby is 2 AFFIRMED

. 3 Defendant-Appellant Sandeep Dalal, pro se , appeals from an order 4 compelling arbitration, an order denying Dalal’s motion to reconsider that decision, 5 and a partial judgment confirming the final arbitration award. The underlying 6 dispute concerns compensation that Dalal has been found to owe Plaintiff-Appellee 7 Krantz & Berman LLP (“K&B”) for legal services that K&B provided him pursuant 8 to a retainer agreement that contained an enforceable arbitration provision. We 9 assume the parties’ familiarity with the underlying facts, procedural history, and 10 the arguments raised on appeal, which we reference only as necessary to explain 11 our decision. 12 We review de novo a district court’s order compelling arbitration. Chelsea 13 Square Textiles, Inc. v. Bombay Dyeing & Mfg. Co. , 189 F.3d 289, 295 (2d Cir. 14 1999). When, after entering such an order, a district court confirms an arbitration 15 award, we review any legal challenges de novo and any factual challenges for clear 16

error. See 187 Concourse Assocs. v. Fishman , 399 F.3d 524, 526 (2d Cir. 2005) (per 17 curiam). 18 A. The order compelling arbitration 19 In support of his assertion that the district court erred in granting K&B’s 201 Dalal’s contention that the district court sua sponte compelled arbitration is belied by the record. K&B moved to compel arbitration on January 29, 2010, and the court granted that motion on May 11, 2010.

3 motion to compel arbitration, 1Dalal offers a variety of arguments, none of which 1 are meritorious. First, he contends that the court should have considered whether 2 K&B had waived its right to arbitrate by failing to request such relief in its 3 complaint. The court in fact explicitly considered Dalal’s waiver argument and 4 correctly rejected it on the ground that Dalal had not suffered any resulting 5 prejudice. See Thyssen, Inc. v. Calypso Shipping Corp. , 310 F.3d 102, 105 (2d Cir. 6 2002) (per curiam) (“The key to a waiver analysis is prejudice.”). Indeed, when 7 K&B filed its motion to compel arbitration in January 2010, less than three months 8 had elapsed from commencement of the litigation, and no discovery or initial 9 pretrial conference had yet occurred, see id. , and, moreover, Dalal himself had 10 earlier claimed that arbitration was required. 11 Second, Dalal contends that the nexus between the parties’ retainer 12 agreement and interstate commerce is insufficient to make enforceable, under the 13 Federal Arbitration Act (“FAA”), the arbitration provision included in their 14 agreement. See 9 U.S.C. § 2. But the record reflects that, pursuant to the retainer 15 agreement, K&B (a New York law firm) provided services to Dalal (then a resident 16 of Washington, D.C.) related to litigation involving a New Jersey corporation. We 17 need go no further. See generally Citizens Bank v. Alafabco, Inc. , 539 U.S. 52, 56 18 (2003) (per curiam) (concluding that the term “involving commerce” in the FAA 19 signifies the “broadest permissible exercise of Congress’ Commerce Clause power”). 204 Third, Dalal asserts that K&B failed to effect adequate service of process on 1 him. But K&B submitted affidavits to the district court that Dalal failed effectively 2 to rebut. They reflect entirely sati sfactory service of the summons and the 3 complaint on Dalal at his home in Texas. 4 Finally, Dalal maintains that the district court, not the arbitrator, should 5 have adjudicated the merits of his statute of limitations defense. We disagree. As 6 the district court properly concluded, under the retainer agreement’s arbitration 7 clause, the timeliness of K&B’s claims was “for the arbitrator to determine.” 8 Diamond Waterproofing Sys., Inc., v. 55 Liberty Owners Corp. , 4 N.Y.3d 247, 250 9 (2005); see also Martens v. Thomann , 273 F.3d 159, 179 n.14 (2d Cir. 2001). 10 For the foregoing reasons, we affirm the district court’s order compelling 11 arbitration and its order denying Dalal’s motion for reconsideration of that decision. 12 B. The order confirming the arbitration award 13 Dalal also challenges the district court’s confirmation of the arbitration 14 award entered in K&B’s favor. “It is well established that courts must grant an 15 arbitration panel’s decision great deference.” Duferco Int’l Steel Trading v. T. 16 Klaveness Shipping A/S , 333 F.3d 383, 388 (2d Cir. 2003). A party seeking to 17 vacate an arbitration award therefore bears a “heavy burden.” Id. Having 18 considered Dalal’s arguments regarding the arbitration award and the district 19 court’s confirmation order, we conclude that he has failed to carry that burden. We 20 affirm the district court’s partial judgment confirming the arbitration award for 21 substantially those reasons set forth by the district court in its thorough opinion. 225 We have considered Dalal’s remaining arguments and conclude that they are 1 without merit. Accordingly, the judgment of the district court is AFFIRMED

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3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6 7 8 9 10 11 12 13