UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________ ) HENRY SEARCY, JR., ) ) Plaintiff, ) )
v. ) Civil Action No. 19

- 921 (RBW) ) DEMAURICE F. SMITH , et al. , ) ) ) Defendants. ) _______________________________________)

M EMORANDUM OPINION
The pro se plaintiff, Henry Searcy, Jr., brings this civil action against the National Football League Players Association (“NFLP A ” ) ; DeMaurice F. Smith , the Executive Director of the NFLPA; Prometric LLC (“Prometric”) ; and Michael P. Sawic ki , the Vice President and
General Counsel of Prometric (collectively, the “ def endants ” ) , allegin g violations of the Federal
Arbitration A c t (the “ Act ” ), 9 U.S.C. §§ 1

– 30 7 (2018) , an d District of Col umbi a common law

. See Amended Complaint ( “ A m
. Compl. ” ) ¶¶ 15

– 59. Currently pendi n g before the Court are (1)
Def endant National Football L eag ue Players Association’s Motion to Dismiss (“NFLPA’s Mot.”), (2) Defendant DeM aurice F. Smith’s Moti on to Dismiss Plai ntiff’s First Amended Complaint (“Smith’s Mot.”), (3) Defendant Prometric LLC ’ s Motion to Dismiss Plaintiff’ s Amended Complaint (“Prom e tri c’s Mot.”), and (4) Defendant Michael P. Sawicki’s Motion to
Dismiss Plaintiff ’s Amended Complai nt ( “Sawicki’s Mot.”) , all of which are opposed by the plaintiff

. Upon careful consideration of the parties’ submi ssions, 1 the Court conclud e s for th e

1 In addition to the filings a lready identifie d, other than the plaintiff ’ s opposition s , the Court consi dered the following submissions in rend ering it s deci sion: (1) the C o mp laint ( “ Compl. ” ) ; (2) the Declaratio n of Michael P. S awicki ( “ S awicki D ecl

. ” ); ( 3 ) the Declaration of Heather McPhee ( “ McPhee D ecl. ” ); ( 4 ) t h e Memo randum in (continued .

. . )2 following reasons th at it must g rant the NFLPA a nd Smith’s motions to dismiss pursuant to
Feder al Rule of Civil Procedure 12(b)(6), and that it must grant Prometric and Sawicki ’s motions to dismiss pursuant to Federal R ule of Ci vil Procedu r e 12(b)(1)

. I. BACKGROUND The following facts are taken from the Amended Complaint, unless otherwise spec i fied.
U nder Section 9(a) o f the National Labor Rela tions Act (“NLRA”), the NFLPA “is the exclusive

co llective ba rgai ning representa ti ve o f all p resent and future [National Football League (‘NFL’)] players.” NFLPA’s M em . at 2. Smit h , as noted earlier, i s the Executive D i rector of th e N FLPA

. S ee Smith ’ s M em. at 1

. The NFLPA “delegate[s] portions of its exclusi ve barga ining authority to Contra ct
Advisor s for purposes of negoti ating individual player con trac ts with NFL Clubs [ .] ” NFLPA ’ s
Mem. at 2

– 3. In o rder to negotiate player contracts with NFL organizations , Contract Advisors must meet the requirements for certifi cation set forth in regulations promulgated by th e

( . . . conti nued) Support of Defendant Michael P. Sawicki ’ s Motion to D i sm iss Plaintiff ’ s Amended Com plaint ( “ Sawi cki ’ s Mem. ” ); ( 5 ) the Statement of Points and Autho rit ies in Support of De fendant De Maurice F. Sm ith ’ s Motion to Dismiss Plain tiff ’ s F irst A m ended Com plaint ( “ Smith ’ s Me m. ” ); ( 6 ) Plaintiff Henry Searcy, Jr.’s Oppositio n to [Sawicki’s] Moti on to Dismiss ( “ P l. ’ s Opp ’ n to Sawicki ’ s Mot. ” ) ; (7) Pla intiff Henry Searcy, Jr.’s Oppositi on to [ Smit h’s] Motion to Dismiss ( “ Pl. ’ s Opp ’ n to Smith ’ s Mot. ” ) ; ( 8 ) the M emorandum in Reply to Plaintiff’ s Opposition to Def endant Michael P. Sawicki’s Motion to Dismiss ( “ Sawi cki ’ s Reply ” ); ( 9 ) th e Statement of Po ints and Authorities in Furthe r Su pport of Defendant DeMaurice F. Smith’s M otion to Dismiss Pla intiff’ s First Amend ed Complaint ( “ Smith ’ s Reply ” ); ( 10 ) the Memorandum in S upport of Defendant Prometric LLC ’ s Motion to D i sm iss Plainti ff ’ s A m ended Complaint ( “ P rometric ’ s Mem. ” ); ( 11) the Statement of Points and Authorities in Support of Defendant Natio nal Fo otbal l Leag ue Playe rs Association ’ s Motion to D i smiss ( “ NFL PA ’ s Mem. ” ) ; ( 1 2 ) [Sawicki’s] Line Partially Withdr awing Moti on to Dism i ss Argument for Insufficient Service of Process ( “ Sawicki ’ s Sup p
. ” ); (13) Plaintiff Henry Searcy, Jr.’s Opposition to [ NFLPA’s] Motion to Dismiss (“Pl.’s Opp’n to NFLPA’s Mot.”) ; ( 1 4 ) th e N atio nal Fo otball League Players Association’s Reply Memo ran dum in F u rther Support of its Motion to Dismiss ( “ NFLPA ’ s Reply ” ); (15) Plaintiff Henry Searcy, Jr.’s [Second ] Opposition to [N FLPA’s] Motion to Dismiss (“Pl.’s 2d Opp’n to NFLPA’s Mot.”); (1 6 ) Plaintiff Henry Searcy, Jr.’s Opposition to [Prometric’s] M oti on to Di smiss (“Pl.’s Opp’n to Prometric’s Mot.”); (1 7 ) Plaintiff Henry Searcy, Jr.’s [Second] Opposition to [Sawicki’s] Motion to Dismiss (“Pl.’s 2d Opp’n to Sawicki’s Mot.”); (1 8 ) Defendant DeMaurice F. Sm ith’s Notice
o f Response to Plaintiff’s Second Op position to Motion to Di smiss ( “ Smith ’ s Resp. t o Pl. ’ s 2d Opp ’ n to NFLP A ’ s Mot. ” ); (1 9 ) Def endant Micha el P. Sawicki’s [Sec ond] Reply in Support o f H is Moti on to Dismiss Plaintiff’s Amended Complaint ( “ Sawi c ki ’ s 2d Reply ” ); and ( 20 ) Defendant Prometric LLC ’s Re ply in Support of I ts Motion to Dis miss Plaintiff’s Amended Compla in t ( “ Prometric ’ s Re ply ” )

.3 NFLPA

— the NFLPA Regulations Governing Contract Advisors ( th e “ Agent Regulations ” )

— and othe rwise comply with these regulations

. Id. Pursuant to the Agent Regulations , in order to be eligible f or certification, a prospective NFLPA Contract Adv isor “ must file a verified Appl icat ion for Certificati on, ” as well as “a ttend[] the NFLPA seminar for n ew Contract Advisors” and “pass[] a written examination.” Id. at 4 (internal quotation marks omitted ) (quoting Am. Compl

. , Exhibit ( “ Ex. ” ) 3 ( Agent Regulations ) a t § 2( A ) , at 1 3

– 1 4 )

. 2

I n 2014, the plaintiff , a resident of Maryland , see Am. Compl. a t 1, co mpleted an application fo r cer tification as a NFL PA Contract Advisor , s ee Am. Compl. ¶ 2. In a letter dated June 12, 201 4, the plaintiff was inf ormed by N FLPA that he was deemed eligible for
certific ation , subje ct to him (1) attending an NFLPA Contract Ad visor Seminar and (2) rec e ivin g a satisfactory sc ore on the NFLPA Contract Advisor examination (the “ examination ” ) , which would be given at the seminar. See id. The l etter explained that th e exam ination “ wou ld consist
of [sixty] multiple

- choice questio ns , ” and th at “[a]pplicants must receive a scaled score of at least [seventy] on the examination to bec ome certifie d by the NFL PA.” NFLPA’s M em . at 5 ( emphasi s in original ) (in ternal q uotations om itted) (quoti ng Am. Compl

. , Ex. B ( Letter from the
NFLPA t o A pplicants (June 12, 2014) ) a t 3

– 4 ) ; see A m Compl. ¶ 3

. T he NFLPA Contract
Advisor examination is develop ed and provided b y Prometric , s ee Prometric ’ s Mem. at 1 , a company b ased in M a ryland, see Sawicki Decl. ¶ 5

. S awicki , as noted earlier, i s the Vice

P r esident and General Counsel of Prometric , s ee Sawicki ’ s Mem . at 4 , and a resident of Maryland, see Sawicki Decl. ¶ 4

.

2 Because the plaintiff di d n ot inse rt page num bers on se veral filings he submitted in this case , the pa ge n umbers cited by the Court when referring to the pl ain tiff’ s filings are the automatically generated page num bers assign ed to the plaintiff’s filings b y the Court’s ECF system

.4 In connect ion with the plaintiff’s ap plic ation for certification, he signed an Acknowledgement Form pursuant to which he “a gree[d] to comp ly with and be bound by the[] [Agent] Regulations,” and fur ther “agree[d] that i f [h e] [is] denied Certification . . . the exclusive

met hod for chall enging any suc h ac tion is through the arbitra tion proce dure set forth in the [Agent] Regulations. ” NFLPA’s M em . at 4 (alterations in original) (emphasis in origi nal ) (internal quotations omitted ) (quoting A m. Compl., Ex. 3 ( Agent Regulation, Appe ndix A) a t
29

– 30) . The Age nt Regulations specify that appeal “h earing[s] [are] conduct ed i n accordance
wit h the Vol untary Lab or Arbi tration Rules of the American Arbitrat ion Association.” Id. at 5 (alterations in original) (internal quotations omitte d ) ( quoting A m. Compl, Ex. 3 ( Agent Regulatio n s ) at § 5 ( E ) , at 24 )

. The plaintiff took the examination on July 25, 2014. See Sawicki’s Mem. at 2. In a letter
dated S ep tember 8, 2014 , t he plai nti ff was advised by the NFLPA t hat he did not pass the 2014

exa m ination

. S ee Am. Compl. ¶ 3; NFLPA’s M em . a t 5. The letter explained that “[a] scaled

score of [seventy] or better i s con side red a passing g rade. The scaled score is N OT a percentage
of the total nu mber of questions answered correctly [;] howev er you ne eded to answ er at least [f]orty

- one [ ] corre ct items to achieve a passing scaled score.” NFLP A’s M em . at 6 (alteratio ns in original) (quoting Am. Comp l., Ex. 2 ( Letter fr om the N FLPA to Searcy (Sep t. 8, 2014) ) at 4 ) ;

see Am. Compl. ¶ 3

. T he p lai ntiff took the exam ination a second time on Jul y 24, 2015. Se e Am. Compl. ¶¶ 5

– 6; Sawick i ’s Mem. at 2. In a letter date d Septe mber 22, 2015, the plaintiff was again
advis ed by the NFLPA t hat he did not pass the 2015 exam ination

. See NFLPA ’ s M em
. at 6

. The letter explained that “[a] scaled s core of [seventy] or better is co nsid ered a passin g grade[,]”
b u t that this time, “you ne eded t o answer at least [f]orty

- seven [ ] c orrect items to achieve a5 passi ng s caled score.” Sawicki’s Mem. at 2 ( alternatio n s in orig inal ) ( quoting Am. C ompl., Ex.
7 (Letter from NFLPA to Searcy (Sep t. 2 2, 2015 ) ) at 5 5) ; see Am. C ompl. ¶ 6

. Therefore, wh ile

“ the passing grade for t he 2015 ex am[ination] was the same as the 201 4 exam[ination]

— i.e., a scaled score of [seventy] or better [,] ” “ to achieve a scaled score of [seventy] in 2 015, an [a]pplicant was required to obtain a raw score of at least [forty

- s eve n], as opposed to [forty

- one ]
in 2014. ” NFLPA ’ s Mot. at 5

– 6; s e e Am. Compl. ¶ 7. Following his receip t of the September 2 5, 2015 letter, t h e plaintiff filed an appeal with the NFLPA, asserti ng that (1) he had answered for ty

- six correct items on the 201 5 exa m ination , and had thus passed the exam based upon the 2014 “Exam Scoring Process [,] ” s ee Am. Compl. ¶

¶ 6

– 7 , and (2 ) the NFLPA arbitrarily chang e d t he “Exam Scoring Process” to require forty

- s even correct items on the 2015 exa m ination , s ee id. ¶ 7

. Th e plaintiff’s appe al proceeded to arbitration and, in a decision dated April 3, 2016, the ar bitr ator issued a decisio n uph old i ng the
NFLPA’s decision to deny Con tract Advisor certi fica tion to the plaintiff (the “ Arbitration
A ward ” )

. See NFLPA’s M em . at 8; Am. Compl. ¶ 11. Nearly th ree y ea rs a fter the Arbitration Award was issu ed , on April 2, 2019, the pl aintiff
fil ed his Compla int against S mith and Sa w icki in thi s Court

. See C ompl

. a t 1. Then, on May 29, 2019, th e plaintiff amend ed his Complaint to inclu de the NFLPA and Prometric as
additional defendants. See Am. Compl. at 1

. In the Amended Complaint, t he plaintiff seeks to
vacate the Arbitration A ward p ursuant to the Federal Arbitration Act (the “ Act ” ) 3 “[a]s a result

3 As explained in Part III.C of th is Mem orandum Opinion , “ the Arbitration Act as a whole doe s not ve st indepen dent jurisdiction in a [f]ed eral [d]istrict [c]ourt.” Bangor & Aroostock R.R. v. Maine Ce nt. R.R. , 359 F. Supp. 261, 262 (D.D.C. 1973)

. The Co urt must the refore determine whether it “already [has] jur isdi ction over the s ubject matter through another source such as diver s it y of cit izenship or federal question

. ” W arren Bros . Co. v. Cmty. Bldg. Corp. of Atlanta , 386 F. Supp. 656, 6 5 9 (M .D.N.C . 1974)

. Accordi ngly , the Court concludes that it has diversity jurisdiction over the plaint iff ’s claims against the NFLPA , because the NFLPA i s based in the District of C o lumbia,
see McPhee Decl., Ex. 1 (S ervice of Process Transmittal) ( listi ng a District of C o lumbia add ress for the NFLPA ) , while the plaintiff resides in Maryland, see Am. C o mpl. at 1 ( listing a Maryland address for th e p laintiff ), and the (continued .

. . )6 of the [a]rbitrator’s partiality” 4 (Count VI)

. I d

. ¶ 52 . Additionally, the plaintiff asserts the following District of Col umbi a common law claims against the NFLPA and Prometric : 5 ( 1 ) b reach of contract against the NFLPA (Count I); (2) tortious interference with contract ual
relations aga inst Prometric (Count II); (3) negligent mi srepresentation against the NFLPA (Count IV ); (4) negligence against the NFLPA (Count V); and ( 5 ) intentional inflictio n of
emotional d istress by the NFLPA (Count VII). 6 See id. ¶¶ 15

– 59. The defendants thereaft er filed their motions to dismiss, see generally N F LPA ’ s Mot

. ; S mith ’ s Mot

. ; Prometric ’ s Mot.;
S aw icki ’ s Mot ., which are the subjec ts of t his M em orandum Opinio n.
II. STAN DARD S O F REV IEW
A. Rule 12(b)(1) Motion to D i smiss Rule 12(b)(1) governs motions to dismiss f or lack of sub ject matte r ju risdiction.
A mot ion pursuant to this Rule “pr esents a thre shold challenge to the [C] ourt’s jurisdiction . . . .”
H aase v. Sessi ons , 835 F.2d 902, 9 06 (D.C

. Cir. 1987); see Grand Lodge Fraternal Order of
Police v. Ashcroft , 18 5 F. Supp. 2d 9, 13 (D.D.C. 2001) (noting t hat “a Rule 12(b)(1) moti on impose s on the [ C ] ourt an affirmative obligation to ensure that it is acting wit hin t he sco pe of its jurisd iction al authority”). Accordingly, the Court must dismiss a claim if it “lack [s] . . . subject

( . . . conti nued) amount in controversy exceeds $75,000 , s ee Am. Compl . at 38 (alle ging damages in excess of $75,000 )

. H owever, the plaintiff has failed to establish any independent ba sis for this Court to exercise fe deral sub ject matter j urisdiction
ove r his cl aims against Prometric and Sawicki. As explained in Part III.C , the plaintiff alleges no basis for e ither diversity or federal question ju risdiction as to his claims against the se d efendants. See discussion in fra Part II I.C.

4 Th e arbitrator is not a pa rty to this action. See Am. Compl. at 1.

5 Although the plai n tif f has included Smith and Sawicki as defendants, he does not reference them in any “ counts ”
o f the Amended Complaint . Instead, the plaintiff only references Smith and Sawicki brie fly in the Amended Complaint , identifying them as “the appropria te person [ s] of authority” for the NFLPA and Prometric, respect ively

. See Am

. Compl. ¶ 12.

6 Although t he plaintiff also asserts “counts” for “specific performance” (Count III) and “punit ive d a mages” ( Count VIII), both are remedies, not causes of act ion.7 matter jurisdictio n[.]” Fed . R. Civ. P. 12(b)(1). Under Rule 12(b) (1), “it is to be presumed that a
cause lies outside [ ] [ the Court ’ s ] limite d jur isdiction,” Kokkon en v. Guardian Life Ins. Co. of
Am. , 511 U.S. 375, 377 (1994), and the plaintiff bears the burden of es tablishing the Court’s jurisdict ion by a prep onderance of the evidence, see , e.g
. , Moore v. Bush , 535 F

. Supp. 2d 46, 47 (D.D.C. 2 0 08). In decidi ng a m otion to dismiss based upon lack of subject matter jurisdiction,
the Co urt is not limited to the allegatio ns set for th i n the complaint , but “may consi der materials outside the pleadings [.] ” Jerome Stevens Ph arms., Inc . v. Fo od & Dru g Admin. , 402 F. 3d 1249, 1253 (D.C. Cir. 2005). Because the Court must ensure its jurisdicti onal authority, “the [p]lainti ff’s factu al a llegations i n the complai nt . . . will bear closer scrutiny in resolving a 12(b)(1) motion tha n in r esol ving a 12(b)(6) motion for fail ure to state a claim.” Grand Lodge of
Fraternal Order of Police , 185 F. Supp . 2d at 13

– 14 (alteration in o riginal) ( inte rnal quotati on
marks omit ted).
B. R ule 12(b)(6) Motion to D i smiss Rule 12(b)(6) gover ns motions t o dismiss for fa ilure to state a claim. A c omplaint must provide “a short and plain statement of the claim showing th at the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Thu s, to s urvive a motion to dismiss under Rule 12(b)(6) for “failure to

state a c laim u pon which relief may be g ran ted,” Fed. R. Civ. P. 12(b)(6), the “complaint must
contain sufficient fac tual matter, accepted as true, to ‘state a c laim to rel ief that is pl ausib le on its face[,]’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting B ell At l. Corp. v. Twombly , 550
U.S . 544, 570 (2007)). “A claim has facial plausibility when the plaintiff p leads factual content
that all ows the [C ]our t to draw t he reasonable infer en ce that the defendant is liable for the
misconduct alleged.” Id. (citin g Tw om bly , 550 U.S. at 556); se e K owal v. MCI Commc’ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994) (noting th at a plaintiff is entitled t o “the ben efit of all8 inf erences that c an be d erived from the facts alleged”). Although the Cou rt must acce pt the fac ts

p le aded as t rue, legal alleg ati ons devoid of factual support are not entitled to this presumption. See, e. g. , Kowal, 16 F.3d at 12 76. Along wit h the allegations made within the fo ur corners of the complaint, the Court may also consider “an y documents eith er attached to or incorpor a ted in the complaint and matters of which [it] may take judicial notice.” Equa l Emp’t Opportunity
Comm ’n v. St. F ran cis Xavier Parochial Sch. , 11 7 F .3d 6 21, 624 (D.C. Cir. 1997)

. III. A NALY SIS
T he NFLPA and Smith conten d tha t the plaintiff ’ s cl aims shou ld be d ismissed pursuant
to R ule 12(b)(6), while Prometric and Sawicki c ontend that th e plaintiff ’ s claims should be dismissed pursua nt to R u le 12(b )(1 )

. 7 Th e Court w il l separately ad dress each of the de fendants ’
motion s
. A. The NFL PA ’ s Motion to D i smiss
The NFL PA moves to dismiss the plain tiff ’s Amended Complaint pursuant to
Rule 12(b)(6) on th e ground that all of the plaintiff’s claims against the NFLPA a re b arred by the
Act. 8 See NFLPA’s Mem. at 10. Spe cifically, t he NFL PA argues that the Act ba rs the

7 A l thou g h Smith, Prometric , and S aw icki h ave also moved to dismis s the plaintif f ’ s C omplaint on other g rounds,
see S m ith ’ s M o t. a t 1 ( seeking dismissal pursuant to Rule 12(b)( 2 ) , (5) , and (6 ) ); Prom etr ic ’ s Mot. at 1 (seeking dismissal pursuant to Rule 12(b)( 1) and (6) ) ; Saw icki ’ s Mot. at 1 (seeking dismissal pursuant to Rule 12(b) (1) and (6) ), beca use Smith ’ s Rule 12( b) (6) argu ments and Prometric ’ s and Saw i cki ’ s Rule 12 (b) (1) arguments are di spo sitive, see di scussion infra P a rt I II .B and Part III.C , the C o urt need not address the other grounds for di smissal
ass erted by Smith , Prometric, and S awicki , and the Court will de ny the ir mot io ns as moot to the extent that they seek dismissal on these o the r ground s.

8 The Court note s that t he Act governs the Arbitration Awar d at issue, as the plaintiff signed a contract wit h the NFLPA

— the Acknowled gment Fo rm

— which clearly states tha t th e pla i ntiff is bound to arbitrate any challenges to his denial of ce rti fication as a NFLPA Cont ract Advisor

. Se e A m. Compl., Ex. 3 ( Agent Reg ulation, Appe ndix A) at 29

– 30 ; s ee also 9 U.S.C. § 2 (“A written pro v isio n in any .
. . contract evidencing a transaction involving commerce to se ttle by arbitration a controv ers y th ere after ar ising out of such contract . . . or the refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and en f orce able , save upo n such grounds as exist at law or in equity for the revo cat ion of any contract .”). Alth ough th e p laintiff cites the Distri ct of C olumbia arbitration statute in his oppo sition to the N FL P A ’ s motio n to dismiss , see Pl. ’ s Opp ’ n to NFLPA ’ s Mot. at 3 6 (citi ng D.C. Code Ann. § 16

- 4423 ), in his Amended Complaint, the pl aintiff seeks to va cate the Arbitrat ion A ward p ursuant to the Ac t, not the District of Col u mbia arbitration st atute , s ee Am . Compl. ¶ 52; see also Pl.’ s Op p. to NF LPA’ s Mot. at 36 (continued .

. . )9 p laintiff ’s claims because (1) the plai ntiff’s attempt to vacate th e Arbitration Award ( the “ vacatur
claim ” ) is barred by th e Act ’s statute of limitations, and (2) the p l aintiff’s remaining c ommon
law claims against the NFLP A und er the Act con stitut e an impermissib le collateral a t tack on the
Arbitration Award. See id. at 10

– 11. The plaintif f responds th a t hi s claims are timely bec ause

t he Arbitration A ward “was procured by corruption, fraud, o r othe r undue means[,]” and
the refore the stat ute of lim itat ions did not begin to run until he first learned of th e purported
misconduct that tainted t he Arbitration A ward , Pl .’s Opp’n to NFLPA’s Mot. at 3 9 , but he fails to respond to the NFLPA ’ s second argument. The Court will addres s the NFLPA ’ s two

argu m ents i n turn.
1. Whether the Plainti ff’s Vacatur Claim is Bar red by the Act’s Statute of Limita tion s
T he NFLPA first argues that the plaintiff’s vacatur claim is barred by the Act’s statute of
limitations. See NFLPA’s M em. at 10. T he p laintiff responds th a t the “[A]ward wa s procured by co rruption, frau d, or other undue means” an d that, si nce he first l earned that “his ap p eal hearing did not use [American Arbitration Association] rul es [i]n March of 2019,” the statut e of
limitations did not begin to run until that tim e
. P l .’s Opp’n to NFL PA’s Mot. at 36.
Th e Act p rovides that “a motion to vacate, modif y, or correct an award mu st be s erved upon the adverse party or his attorney wit hin three months after the award is filed or delivered.” 9 U.S.C. § 12 (emphasis add ed); see Therm al D ynamic I nt’l, Inc. v. Safe Haven Enter s., LLC , Civ . Action No. 13

- 00721 ( C KK ) , 2016 WL 3023983, at *8 (D.D.C. Ma y 25 , 2016) (“Section 12
of the

. . . [ Act ] governs m otions to vacate, mo dify, or correct arbitration awards

. ”). “[C]ourts
( . . . conti nued) (“Para graph 52 o f the [p] l aintiff’s compla[in]t men tions the vacatur of the arbitrati on award accord ing to Secti on 1 0(a) of the

. . . Act.”) , and “[t]o the extent there are confl icts betw een state arbitration law and the [Ac t] that would
co ntr avene the pro

- arbitration policies embo d ied in the [Act], the [Ac t ] applies and preempts suc h state laws [,] ” Haire v. Smi th, C urr ie & Han cock LLP , 925 F. Supp. 2d 126, 130 (D.D.C. 2013). Accordingly, the Act , rather than the District o f Columbia arbi tration statute, governs the pla inti ff’s cla i ms
.10 have c ons istently i nter pret ed th e [Act’s] notice pro vision to cr eate a strict deadline.” Ar gentine Rep ublic v. Nat’l Grid Plc , 637 F.3 d 365, 368 (D.C. Cir. 2011 ); see Dalal v. Goldma n Sachs &
Co. , 541 F . Supp. 2d 72, 76 (D.D.C. 2008) (“There is no statutory o r com mon law ex cept ion to
th is time limitation.” ), aff’d , 575 F.3 d 725 (D.C. Cir. 2009); see also Piccolo v. Dain, Kal man & Quail, Inc. , 641 F.2d 598, 600 (8t h Cir. 1981) (“A party to an arbitration award who fails to

comp ly with th e statut ory precondition

. . . forfeits the rig ht to judicial review of the awa rd.”).

H ere, the plaintiff fil e d h is initial Complaint nearly thr ee year s after the Arbitration
Award was rendered

— far beyond the scope of the Act’s three

- month statute of limitat ions period

. Compare Am. C o m pl. ¶ 11 (alle ging that the Arbitration Award was issued on April 3, 2016) , wit h Compl. at 1 ( initiating this civil action on April 2, 2019). The plaintiff’s
clai m is therefor e time

- barred under the Act. See Therm al Dynamic , 20 16 WL 3023983, at * 8 (holding that th e mo ti on to vacate award was untimely because the par ty “chose to wai t [e leve n] months after delivery of the [a]rbitration [a]ward ”) ; Dalal , 541 F. Supp. 2d at 76 (hol ding that a
motion to vacate award was untimely where the plaintiff fi led his complaint s ix m onths after receiving the award)

. The pla intiff’s counterargumen t is unavailing. Although , as the plaintiff cor rectly notes,

see P l. ’ s Opp ’ n to NFLPA ’ s Mot. at 3 9 , under the A c t, the Court may vacate an award where the award was “procured by corruption , fraud , or oth er undue mea ns,” 9 U.S.C. § 1 0(a)(1), the Court

may only do so within the Act’s statute of limitations per iod, as “[t]here is no statutory or

com mon law ex cept ion to this time limitation [,] ” Dalal , 541 F . Supp. 2d at 76. B eca use the plai nti ff initiated this civil act ion outside of th e statu te of limitation s period, h is assertion of corruption, fraud, or undue means is therefore time

- barre d.11 Moreov er, even if the plaintiff’s vacatur claim was not time

- barred, it would still fail. As a prel i mi nary matter, a “party see king vacatur [ on the grou nds of corrupti on, fraud, or othe r undue means] must demonstrate by clear and convincing evidence that its opponent actually engaged in fraudu lent conduct or used undue means during the cou rse of the arbi tr ation.” ARMA, S.R.O. v. BAE Sys. Overs eas , Inc. , 961 F. Supp. 2d 245, 254 (D. D.C. 2013) (emphasis added). Here, the plaintiff alleges that the a rbitrator who issued the Arbitration Aw ard

— not the
NFLPA

— “procured th e [ Arbitration ] Award th roug h dec eption a s the [a] rbitrator prete n ded to
conduct th e [ p ] lai ntiff’s he aring according to . . . the [Americ an Arbi tration Association ru les].”
Am. Compl. ¶ 51. Additionally, a party seeking vacatur “must show that the fraud could not
have been disc over ed before or during the arbitration t h rough t he exercis e of rea sonable
di ligen ce.” ARMA, S.R.O. , 961 F. Supp . 2 d at 254. Here, however, the pla intiff alleges that he

was aware that his “ appeal hearing was not conduct ed a ccor ding to the [American Arbitra tion
Associati on rul es] ” in June 2016, and not in March 2019, as the plaintiff now asserts in his opposition. Am. Compl. ¶ 12 ( alleging t hat t he plaintiff “contact e d the [ Amer ican Arbitration Association] to file a complaint against the [a]rbitra tor” in June 2016, and after a c all with an
Amer ican Arbitration Association repr esentat ive, he learned that his “appeal hearing was not
conduct ed a ccor ding to the [American Arbitra tion Association rules] ” ) ; see Pl. ’ s Opp ’ n to
NFLPA ’ s M o t. at 3 9.
Accordi n gl y, the Court conclude s that the pl aintiff ’ s va catur claim again st the NFLPA is
time

- ba rred under the Ac t , and that even if the plaintiff ’ s claim was not time

- barred, the plaintiff has failed to state a cognizable claim against the NFLPA.
2. Whether the Plaintiff’s C o mmon Law Claims Constitute a Collateral Attack on the Arbitration Award12 The N FLP A next argu es that the plaintiff’s remain ing common law claims against th e
NFLPA must be dismissed unde r the Act because these claim s constitute an impermissible
collateral attack on the Arbitration A ward. See NFL PA’s Mem. at 11. The plaintiff fail s t o respond to the NFLPA’s a rguments on this po int. See generally Pl. ’ s Op p ’ n to NFLPA ’ s Mot.
It is well

- es tablished that “[ t]he [A ct] provides the exclus ive remedy for challenging
conduct that tain ts an arbitration award within the Act’s coverage.” Pisci o tta v. Sh ears on
Lehman Bro s
. , 629 A.2d 520, 523 (D .C. 1993) (internal quotat ion marks omitted). Thus, whe re
a p arty who participated in an arbit ration brings claims in federal court seeki ng damages for alleged wron gdoings that “ compromised the arbi tration aw ard” and cause d the party injury , such
cl aims are “no m ore, in substance, than an impermis sible collateral attack on the a ward itself”

an d mus t be dismissed in accordance with the Act. Corey v. N.Y. Stock Exch. , 691 F.2d 1205 , 1211

– 12 (6th Cir. 1982) ( con clud ing that t he plaintiff’s att empt to s ue the New Yor k Stock Exchange for the arbitrator ’s actions constituted an “imp er miss ible collat eral attack on the award itself[,]” where the pl aintiff’s complaint had “no purpose other than to challenge t he very wr ongs affecting the award[,]” and noting t hat the Act pr ovides the “exclusive remedy for ch allenging
acts that taint an a rb itra tion award” ); se e also Gulf Petro Trading Co. v. Nigerian N at’l Petroleum Corp. , 512 F.3d 742, 750 ( 5th C ir. 2008) (explaining that “[t]hough cl oaked in a variety of feder al and st ate law claims[,]” the relief sought by pla intiff “show[ed] that its t rue objective in this suit [w as] to rectify the harm it suffered in receiving the unfavorable [ a ward ] ” ) ;
Dec ker v. Merrill Lynch, Pie rce, Fenner & Smith , Inc. , 205 F.3d 906 , 910 (6th Cir. 2000) (holding that “ [b] ecau se [the pl aintiff] chose to attack collate rally the arbi tra tion award in violation of the [Act], she fails to state a claim upo n which rel ief may b e granted[,]” and noting13 t hat in order to pro perly challenge t he a ward, the plaintiff “should h ave filed a mo tion to va cate
the arbitration award under the [Act]”)

. H ere, the “ult imate objective” of the plaintiff’s lawsuit against the NFLPA “is to re ctify the alleged harm” h e suf fered fro m the adve rse Arbitration Award that af firmed the NFLPA’s
denial of his Application for Certification as a Contract A dvisor. Decker , 2 05 F .3d at 910. And,

t he plaintiff’s common law claims against the NFLPA directly challenge th e arbitration pro cess
and the final Arbitration A ward itself

. Se e , e.g. , A m Compl

. ¶ 1 7 ( “[T]he NFL PA breached t he

c ontract with the [p]lai ntiff b y not conducting the [p]laintiff’s [arbitration] hearing according to the ‘Voluntary Labor Arbitration Ru le s’ of the [American Arbitration Associatio n].” ); i d. ¶ 18 ( “[T]he N FLPA bre ached the contract with the [p]laintiff wh en the [a]rbitrator did n ot rend er a
decision at the close of the h earing or within thirty [ ] days after the hearing.” ); id. ¶ 1 9 ( “ [T]he
NFLPA breached the contract wit h the [p]l aint iff w hen the [a]rbitra tor extended the tim eframe to

prov ide a written de cision without written a greement from the [p]lain tiff.” ); id. ¶ 54 ( “ [T]he extreme and outrageous conduct on the part of the NFLPA .

. . [ result ed from ] havin g [the] [p]laintiff pa rticipate in a n appeal hearing not governed by the [American Arbitration
Ass oc iation rules] . . . [and] vio lat[ing] t he [Age nt] Regulations and the [Act] i n or der to secure an adverse ruling.” ). Each of the plaintiff ’s commo n law c laims against the NFLPA seek da mages for alleged

wron gdoings on the part o f the arbitrator and the NFLPA t hat , in the plaintiff’ s view,
“c ompro mised the [ ] [A] ward [,] ” Corey , 691 F.2d at 1211 , resulting in the adverse ruling. However, i n ord er t o properl y challenge the Arbitration Award, the plain tiff shoul d ha ve filed a timely motion to vacate the Arbitrat ion A ward pursuant to the Act. Se e Decker , 205 F .3d at 910.
Now that the Act’ s statute of limit ations period has expired , see discussion supra Part I II.A.1 , the14 plain tiff’s common law claims against the NFLPA constitute an impermissible collat eral attac k

on the Arbitration Award. See C orey , 691 F. 2d at 1213 (“The three mon th notice requireme nt in section 12 [of the Act ] is meaningless if a party to th e arbitrati on proceedings may bring an independent direct action asserti ng s uch claims outside of the statutory time period pro vide d for
in sect ion 1 2.”).
Accordi ng ly, because all of the pla intiff ’ s claims against the NFLPA are either
time

- barred by the Ac t or consti t ute an impermissi ble coll ater al attack on the Arbitration Award , the Cou rt m ust grant the N FLPA ’ s motion to dismi ss the plaintiff ’ s claims against the NFLPA

purs uant to R ule 12(b) (6) for failure to state a claim.
B. S mith ’ s Motion to D i smiss
DeMau rice S m ith moves to dismiss the Am ended Com plaint pursuant to Rule 12 (b )(6) on the grou nds tha t this “ a cti o n is time

- barr ed” because the plaintiff “s eeks to vacat e . . .[the] [ Arbitration ] A ward th at was issued in April 2016

— i.e., more than three years ago ”

— in
violat io n of the Act’s statute of limitation s , S mith ’ s Mem. at 2 , and the Amend ed Complaint
“asser ts no claim against Smith at all ” because t he Am ended Compla int’s “only refer e nc es t o
Smith are alleg atio ns that h e is a ‘person of authority’ at the NFL PA and that [the plaintiff] allegedly ‘bl ind carbon copied’ him on a le tter to another NFL PA employee t hree years ago complaining about what he be lie ve d to be an ‘ unfair appeal pro c es s’ t hat aff irmed the deni al of
his Application for Certification as an NF LPA Contrac t Advisor [,] ” i d. at 5. T he plai ntiff

respo nds by asserting that co rporate offi cials m ay be held “li abl e for torts which they commit,

par ticipate in, o r inspire

. ” Pl.’ s Op p’n to Smith’s Mot. at 12

– 13. Here, the Ame nded Complaint fails to asse rt a cl aim against Smi th. Non e of the

p lai n tiff’s counts even mention Smith, let alone allege that he committed any wrongdoing15 suffi cient to impose liability. Se e Am. Compl. ¶ ¶ 15

– 59

. Rather, the plain tif f’s claims allege wrongdoing by the NFLPA an d Pro metric. Se e id

. Because an officer’s liability “must be premised upon a corporate of ficer’s meaningfu l parti cipati on i n the wrongful acts[,]” Carty v.
CVS Pharma cy, L LC , 264 F

. Supp. 3d 19 0, 195 (D.D.C. 2017), rather than “the officer’s position in the c orpo ration, ” Partridge v. Am. Hosp. Mgmt. Co. , 289 F. Supp. 3d 1, 15 (D .D.C.
2017 ), the plaintiff’s all eg ation that Smith is a “person of author ity ” at the NFLP A, Am. Compl. ¶ 12, without more, is insufficient to create personal liability. A nd, e ve n if th e plaintiff had
asserted clai ms again st Smith, such claims would war rant dismissal for the same reas ons that the plaintiff’s claim s against the NF L PA must be d ism issed, i.e., beca use the plaintiff’s attempt to
vacate the Arbitration Award is barred by the Act’s statu te of limitation s, a nd the p laintiff’s

common law claims constitute an impermissible coll ateral attack on the Arbitration Award. See
d iscussion supra Part I I I.A

. Ac cordi ngly, because t he plaintiff does not properly assert any

c laims agains t Sm ith, and

— ev en if he di d, such claims would be time

- barred

— the Court must

g rant S m ith ’ s motion to dis miss to the extent that it seeks dismissal of the plaintiff ’ s cl aims against Sm ith pursuant to Ru le 12(b)(6).
C. P rometric a nd Sawicki ’ s M otion s to D i smiss
Pro metr ic and Michael Saw i cki move to dismiss the Am en ded Complaint pur suant to
Rul e 12(b)(1) on the gr ound that there is no diversity or federal que stion jurisdiction that provide s a basis for this Court to have jurisdiction o ver the plaintiff ’ s claims again st them

. S ee
Prometric’s Mem. at 5

– 6; Sawicki’s Mem. at 8

– 9 . The p laintiff responds that Court has federal question jurisdiction ov er the pl ainti ff ’s c lai m for violati ng the Act, and th at in any event the
Court s hould exercise suppl emental jurisdiction o ve r the pla intiff ’s claims against Smith and16 Pro metric because they “are so related that they form pa rt of the same ‘ case or controversy[.] ’ ”
Pl. ’ s Opp ’ n to Sawicki ’ s Mot. at 5 ; see Pl. ’ s Opp ’ n to Pro metric ’ s Mot. at 8.
First , there is no diversity jurisd iction as t o the pl aintiff’s claims a gainst Prometr ic and
S awicki . F or the Court to exercise diversit y jurisdiction, (1) the amount in contro versy must exceed $75,000, a nd (2) there mu s t b e complete diversity among the litigants. See 28 U.S.C. § 1332 (20 18 ); Busby v. Capital One, N.A. , 932 F. Sup p. 2d 114, 1 29

– 30 (D.D.C. 20 13). Complete d i versity requir es that “no plaintiff may have the same citize nship of any defendant.”
Bus by , 932 F. Supp. 2d at 130 . Here, the plaintiff is a res ident of the state o f Maryland, s ee Am. Compl. at 1 (listi ng a Mar yland address for the pla intiff), as are both Prometric an d Sawick i , see
S awicki Decl. ¶ 3 ( representing that S awicki resides in Maryland); id. ¶ 5 ( representing that
Prometric ’ s principal p lace of business is in M a ryland)

. Acc ordingly, the plain tiff alleges no
basis for diversit y jurisdiction as to these defend ants. Second, t here i s al so no fede ral qu esti o n jurisdiction as to the plaintiff’s claims against
Promet ric and Sawicki because the action do es not arise u nder the “ Constitu tion , laws, or treaties

o f the United States.” 28 U.S.C. § 1331. The pla intiff fai ls to allege any que stio n aris ing under
fede ra l law, aside from Count VI, which is styled as “Violatio n of the Federal Arbitration Act.”
Se e Am. Compl. ¶ ¶ 46

– 52. However, the plaintiff does not a llege that Prometric or Sa wicki committed any vio lations of the Act in Count VI

. See id

. I nstead , he on ly alleges in Count II
that Prometric committed the wrong of tortio us interference with contract ual relatio ns , and the plaintiff f ails to mention Sawic ki in any of the c ounts

. See id. ¶¶ 23

– 25. In any event, e ven if the Amended Complaint al lege d that Pro m etric and Sawicki committed violations of the Act, “[t]he clear wei ght of authority holds that the [Act ] a s a whole d oe s not ve st indepen dent jurisdiction in a [f]ederal [d]ist rict [c]ourt.” Bang or & Aroostock R.R. v. M ain e Cent. R.R. , 35 917 F. S upp. 261, 262 (D.D.C. 1973) ; see W arren Bros . Co. v. Cmty. Bldg. Corp. of Atlanta , 386 F. Supp. 656, 6 58 (M .D.N.C . 1 974) ( “ The

. . . Act does not provide an indepe n dent basis for federal jurisdic tion since it does not co nfer federal question jurisdiction upon federa l courts

. ” ). Thus , the Act “requir[es] . . . an independen t ju risdictional bas is over the parties’ d isput e” for a pa rt y to gain access to a federal foru m , Vaden v. Discover Ba nk , 556 U.S . 49, 59 (2009) (first alteration in original) (internal quotation ma rks omitte d ), and “ before a federal court can apply the Act , it

must a lrea dy have jur isdi ction over the s ubject matte r through another source such as divers ity of citizenship o r federal question [,] ” Warren Bros . Co. , 386 F. Supp. at 659. The Court has alr eady
conclu ded that the plaintiff has failed to e stab lish any independent basis for this C o urt to exercise
federal su bject matte r jurisdictio n over his claims against Prometric an d Sawicki. Moreover, despite t he plaintiff’s arguments to the contrary, the Court cannot exercis e supple me ntal jurisdiction over the plaintiff’s claims ag ainst Pr ometric and Sawi cki because “in complete
diversit y destroys o riginal jurisdiction with resp ect to al l claims, leaving nothing to which supplemental claims can adhere.” Ex xon Mobil Corp. v. Allapatt ah Ser vs., Inc. , 545 U.S. 546 , 5 46 (2005).
A ccor ding ly, because the Court does not have s ubject matter jur isdiction o ver the

p laintiff ’ s claims agai nst Prome tric and Sawick i , it must grant their motions to dismiss to the

extent that they se ek dismissal of the plaintiff ’ s claims a gainst Pr ometric and Sa wicki pursuant to
R

ule 12(b)(1)

. IV. C ONCLUSIO N For the foregoi ng reaso ns, the Cou rt conclude s th at it mu st grant the NFLPA ’ s motion to
dis miss . The Court also concl udes that it m ust grant in part and deny as moot in part Smith ’ s , Prometric ’ s , and Saw icki ’ s mo tions to dismiss. Specificall y, the Cour t will (1) grant Smith ’ s18 motion to the e xtent that it seeks di sm issa l of the plaintiff ’ s clai ms against Smith pursuant to Rule 12(b)(6) ; (2) grant P r o m e tric ’ s motion to the extent that it seeks dismissal of the plaintiff ’ s
claims against P r ometr ic pursuant to Rule 12(b)(1) ; (3) grant Saw icki ’ s moti on to the extent that
it seeks dis missal of the pla intiff ’ s claims agains t S aw icki pursuant to Rule 12( b) (1) ; and ( 4)
d en y as moot those motions in al l other res pects.
SO ORDERED this 6 th day of May , 2 0 20

. 9

REGG IE B . WALTON United States Distri ct Judge

9 The Court will cont emporaneousl y issue an Order consistent with this Memor andum Opi nio n.