### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30357 Summary Calendar

ROY DANA MARTEL,
Plaintiff
v. ENSCO OFFSHORE COMPANY; TORCH OPERATING COMPANY, Defendants–Third-Party Plaintiffs–Appellees

v. INGERSOLL RAND COMPANY, Third-Party Defendant–Appellant

Appeal from the United States District Court for the

Western District of Louisiana USDC No. 6:00-cv-1864

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Novembe r 2, 2 011 Lyle W . Cayce Clerk

Purs uant to Fift h Circ uit Rule 47.5 , the cour t has det erm ined that this opi nion sho uld * not be publ ish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t for th in Fift h Circ uit Rule 47.5 .4. Case: 11-30357 Document: 00511652243 Page: 1 Date Filed: 11/02/2011No. 11-30357

I n thi s ap peal, Third-Party D ef e n d ant

– Ap p ell ant I n ger s oll Ran d C o m p any appeals a final judgment by th e di strict court confirming a judgment in arbitration against Ingersoll. We AFFIRM.

FA C T UA L AN D P R O C E D U R A L BA C K G R O U N D On August 12, 2000, Plaintiff Roy Dana Martel (“Martel”) filed suit in the United States District Court for the Western District of Louisiana, alleging that he sustained injuries while a member of a cas i n g c r e w on an Ensco Offshore Company (“Ensco”) vessel. Ensco and Torch Operating Company (“Torch”) were the named defendants in Martel’s suit. Ensco and Torch thereafter n a m ed Ingersoll Rand Company (“In g e r s o ll”) as a third-party defendant in the suit. Martel eventually settled his claims against Ensco and Torch, while they maintained their third-party action against Ingersoll. The district court ordered the third-party action to arbitration, and a judgment in arbitration was delivered to the parties on February 18, 2010. The arbitrator determined the allocation of fault among the f iv e p a rties involved, including 25% to Ensco, 15% to Ingersoll, and 50% to Martel for contributing to his own injuries. The judgment in arbitration contained a clerical error, however, computing damages based on a $300,000 (three hundred tho u sand dollar ) total ad damnun , rather than the $3,000,000 (three million dollar ) total ad damnun to which the parties had agreed. Thus, the a rb i t r at o r f ound that Ingersoll owed E n s c o $ 4 5 , 000 (15% of $300,000), while it should have owed $450,000 (15% of $3,000,000). The arbitrator was informed that he had used an incorrect total award figure, and he notified the parties that he intended to issue

an a m e n d e d j u dgment. Counsel for both parties, however, requested that the arbitrator refrain from issuing an amended judgment while they attempted to work o u t o ther unresolved issues. As a result, the arbitrator issued an Order Vacating Judgment in Arbitration on July 1, 2010, but did not immediately issue an amended judgment.

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At a hearing on December 17, 2010, the arbitrator held that his previous judgment had contained only a mathematical error, rather than a substantive
one, such th a t h e h a d j urisdiction to correct it. He also noted that the parties ha d a gr eed to the corrected $3,000,000 amount, and neither party had challenged the substantive findings set forth in the original judgment. Therefore, the arbitrator reinstated his judgment of February 17, 2010, except that the monetary computations were amended to be based on a $3,000,000 total award, rather than $300,000. After the arbitrator issued his am e n de d j u d gm e nt , E n s co and Torch moved to have the arbitration award con f i r m e d by the district court. Ingersoll, however, opposed confirmation of the amended award, and moved to vacate the

amen d e d judgment, stay all pending arbitration proceedings, and confirm the original judgment in arbitration. On March 15, 2011, the district judge held a hearing regarding the parties’ motions in relation to the amended judgment in arbitration. On M arch 31, 2011, the district court issued a judgment granting E n sco and Torch’s motion to confirm the arbitration award of Decemb e r 1 7 , 2 0 10, and denying Ingersoll’s motion to declare the arbitration proceedi n g s closed, motion to vacate, motion to stay, and motion to confirm the original judgment in arbitration. This appeal timely followed. S TAN D A R D O F R E VI EW We review de novo a district court’s confirmation of an arbitration award. Laws v. Morgan Stanley Dean Witter , 452 F.3d 398, 399-400 (5th C ir . 2 006). “Our review of the award itself, however, is exceedingly deferential.” Brabham

v. A.G. Edwards & Sons I n c . , 3 7 6 F.3d 377, 380 (5th Cir. 2004) (citation omitted). Vacatur of an arbitration award will be permi t t e d “ o nly on very narrow grounds.” Id

.

3 Case: 11-30357 Document: 00511652243 Page: 3 Date Filed: 11/02/2011No. 11-30357 ANA LY S I S Ingersoll makes three separate, but related, arguments. Fi r s t , it claims that once the arbitr a t o r i s s ued his original award, his jurisdiction over the matter terminated pursuant to the f u n c tus officio doctrine. Ingersoll further argues that because none of the prescribed procedures for vacating, amending,

or revising a judgment in arbitration were followed here, the district court erred in confirming the amended judgment in arbitration. Theref ore , the district court also erred in denying Ingersoll’s motion to confirm the original judgment in arbitration. Conversely, Ensco and Torch maintain that the arbitrator retained the authority to issue an amended judgment, and that the district court properly confirmed that amended award. Under the Federal Arbitration Act (“FAA”), there are four statutory bases upon which an arbitration award may be vacated:

(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators w e re guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in re f

u s i n g to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where th e a rbitrators exceeded their powers, or so imperfectly executed them th a t a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a). These are the exclusive grounds according to which a district court may vacate an arbitration award. H a ll St. Assoc., L.L.C. v. Mattel, Inc ., 5 5 2 U

. S

. 576, 584 (2008). Ingersoll contends that the arbitrator in this case
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exceeded his powers by vacating his original judgme n t, holding a subsequent hearing, and issuing a n amended judgment, because under the functus officio doctrine, the arbitrator’s power and authority over the case terminated once he issued his original judgment. Therefore, according to Ingersoll, the district court should have vacated the amended award pursuant to the FAA, 9 U.S.C. § 10(a)(4), and it should have confirmed the original judgment in arbitration. Functus officio means that an officer is “without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” Black’s Law Dictionary 743 ( 9th ed., 2009). “Once a court of competent jurisdiction has confirmed that an arbitration decision is unambiguous and binding on the parties, the arbitrator becomes functus officio with respect to that portion of the arbi t r a t i o n a ward and lacks authority to reconsider those aspects of his decision that are unambiguous and binding.” Brown v. Witco Corp. , 340 F.3d 209, 221 (5th Cir. 2003). Here, the arbitrator’s original award was not confirmed by the district court prior to the arbitrator vacating the award due to his mistake regarding the total award amount. Furthermore, there are three recognized exceptions to the functus officio doctrine: “An arbitrator can (1) correct a mistake which is apparent on the face of his award; (2) decide an is s u e w h i c h has been submitted but which has not been completely adjudicated by the original award; or (3) clarify or construe an arbitration award that seems complete but proves to be ambiguous in its scope and implementation.” Id

. at 219. In this case, Ensco and Torch maintain that the original judgment contained a “mistake which is apparent on the face of the award,” whil e I n g e r soll argues that the mathematical error is only apparent through reference to other documents and statements. In the original judgment, the arbitrator wrote that “the agreed ad damnun was established as $300,000.00,” but the parties’ joint stipulation th a t served as an exhibit to the arbitration hearing stated th a t th e total ad damnun at issue was $3,000,000.

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Thus, the arbitrator’s judgment co nflicted with the evidentiary documents on which he based his calculations. In addition, at the hearing before the district judge in w h i c h Ingersoll requested that the original judgment in arbitration be con f i r med, counsel for Ingersoll admitted that the arbitrator’s use of the $ 300,000 award amount was
an error. Counsel for Ingersoll agreed that the arbitrator had made a calculation
error, and that the judgment contained a clerical error. As the Thir d C ircuit stated in Colonial Penn Insurance Co. v. Omaha Indemnity Co., a case quoted extensively in Inger s oll’s brief, “[t]he exception for mistakes apparent on the face of the award is applied to cl e ri c al mistakes or obvious errors in arithmetic computation.” 943 F.2d 327, 332 (3d Cir. 1991). The Colonial Penn court also recognized that “[p]ossibly, [the exception] could also b e applied in a situation where the award on its face is contrary to a fact so well known as to be subject to judicial notice,” th o u gh the court refrained from taking a position on that possibility. Id

. We find that the arbitrator’s use of $ 300,000 as the total award,

r a ther than the agreed-upon $ 3,000,000, was a clerical error. Moreover, th e original award was contrary on its f a c e t o a well-known, undisputed fact contained in a joint exhibit. Consequently, the mistake was subject to notice by the arbitrator, as it directly contradicted the exhibits in evidence. The doctrine of functus officio is intended t o p r e v ent an arbitrator from changing his ruling due to outside influence. See, e.g., Colonial Penn , 943 F.2d at 331-32 (“The policy underlying this general rule is an unwillingness to permit

one who is not a judicial officer and who acts infor m a l ly a n d s poradically, to re-examine a fina l d e c ision which he has already rendered, because of the potential evil of outside communication and unilat e ral influence which might affect a new conclusi on.” (internal quotation marks and citation omitted)); Teamsters Local 312 v. Matlack, Inc ., 916 F. Supp. 482, 485 (E.D. Pa. 1996), aff’d 118 F.3d 985 (3d Cir. 1997) (“This principle of functus officio is predicated on the

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need for finality. It is also designed to prevent i m p r o p e r influences on an arbitrator to change his or her mind once a final decision is rendered.”); Glass , Molders, Pottery, Plastics and Allied Workers Int’l Union, AFL-CIO, CLC, Local 182B v. Excelsior Foundry Co. , 56 F .3d 844, 847 (7th Cir. 1995) (“Once they return to private life, arbitrators are less sheltered than sitting judges, and it is feared that disappointed parties will bombard them with ex p a rte communica t i o ns and that the arbitrators, not being professional judges or subject to the constraints of judicial ethics, will yield.”). The arbitrator in this

case did not revisit the merits of his decision, or change his substantive ruling; he merely corrected a mistake on the face of the award that was recognized by all parties. As such, the arbitrator did not exceed his authority by vacating the original judgment and issuing an amended one. 1 We also find that Inge r s o l l implicitly consented to the continuing jurisdiction of the arbitrator over this matter. Once Ensco and Torch notified the arbitrator that the o ri gi nal judgment contained a clerical error, the arbitrator informed the parties that he intended to issue an amended judgment. Both parties then requested that he refrain from doing so while they attempted t o w o rk out other issues. This Court has recognized that, “[a]s a speedy and i nformal alternative to litigation, arbitration resolves disputes with o u t confinement to many of the procedural and evidentiary strictures that protect

Ingers oll argues : “ T h e Fede ral Arbit rat ion Act (9 U. S. C. § 1, et se q.) pr es cribes the 1
man ner and pr oce dur es for arbit rat ions in Fede ral Court act ions ,” inclu ding the pr oce dur e for vacat ing, mo dif

ying, or correc ting an a wa rd

. H ow ever, the Act dir ect s the man ner in wh ich a dis tric t c o u rt may vacat e, mo dif y, or correc t an aw ard

. There for e, the Act–inclu ding any lim itat ions period s it plac es o n a party’s right to mak e a mo tio n to vacat e, mo dif y, or correc t–has no bearing on mo dif icat ion or clarifi cat ion so ught fr om an arbit rat or, rather than a dis tri ct judge. See Witc o , 340 F.3d at 218 n.8 (“ [T] he FAA’s t h r e e m o n t h st atut e of lim itat ions period governs the period of tim e wi th i n wh ich a party mus t fil e a law sui t in fed eral cour t ask ing the cour t to vacat e, mo dif y, or correc t an arbit rat ion aw ard

. See 9 U. S. C. § 12. The FAA doe s not regula te the tim e in wh ich the partie s may requ es t clarifi cat ion of an arbit rat ion aw ardf

romthe arbit rat or. ”)

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the integrity of formal trials.” Forsythe Int’l, S.A. v. Gibbs Oil Co. of Texas , 915 F.2d 1017, 1022 (5th Cir. 1990). As a result, “the parties and the arbitrator have full authority to establish the procedural rules of arbitration.” Local P-9, United Food and Commercial Workers Int’l Union, AFL-CIO v. George A. Hormel & Co. , 776 F.2d 1393, 1394 (8th Cir. 1985). They should no t , h o w e ver, “superimpose rigo r o u s procedural limitations on the very process designed to avoid such limitations.” Forsythe , 915 F.2d at 1022 (citation omitted). In the hearing before the district judge, counsel for Ingersoll admitted that the arbitrat o r “ha[d] jurisdiction to amend an error or vacate a judgment,” but that “it’s a procedural thing on how it has to be done.” The parties in this case never entered into a written arbitration agreement adopting any formal rules of arbitration, such as those prom u l gated by the American Arbitration Association. Therefore, when the pa rt i e s asked the arbitrator to hold off on issuing an amended judgment, they in essence set out the procedure they wished to follow. See Witco , 340 F.3d at 219 (finding that, in the context of clarifying an award, “in the absence of any contractual provision or f o r m al arbitration rule expressly to the contrary, it

seems clear that an arbitrator may exercise his power to clarify the terms of an award when he is asked to do so by parties mutua l ly and without any party’s

obj e c tion within a reasonable period of time”). Furthermore, Ingersoll at th a t time did not claim that the arbitrator lacked jurisdiction to amend his judgment. “[B]ecause the advant a ge s of arb itr atio n are speed and informality, an arbitrator should be expected to act affirmatively to simplify and expedite the proceedings before him.” Forsythe , 915 F.2d at 1022 (internal quotation marks and citation omitted). The arbitrator’s actions here were a n effort to fulfill his obligations appropriately and efficiently. Finally, we agree with the distri c t c o u rt that it is disingenuous for Ingersoll to have asked the arbitrator to wait to issue an amended judgment, to have admitted that the ad damnun used in the ori gi n a l a w a rd was a clerical

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error, and to now claim that the a rb i t r a t or had no jurisdiction to amend his award and the original, incorrect judgment must st a n d

. As noted supra , arbitration is inten d e d t o be a quick and informal alternative to litigation. Forsythe , 915 F.2d at 1022. By litigating this issue, Ingersoll has contravened that policy. Moreover, Ingersoll seeks to employ rules designed to further justice in order to confirm an award that would in fact be unjust, due to its basis on an admitted clerical error. We will not condone such gamesmanship. “The federal courts will defer to the arbitrators’ resolution of the dispute whenever possible. The Congressional policy of promoting arbitration requires that courts do not intrude unnecessarily into questions that have been settled by an arbitration process agreed to by the parties, lest the effic i e ncy of the

arbitration process be lost.” Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co. , 918 F.2d 1215, 1218 (5th Cir. 1990). We find that E nsco, Torch, and Ingersoll consented to the arbitration that t o o k place in this case. In addition, by amending the original judgment, the arbitrator corrected a clerical
error, and his actions thus fell within the bounds of an exception to the functus officio doctrine. We therefore agree with the district court that the arbitrator’s amended award, utilizing th e c o rr ect $3,000,000 (three million dollar) ad damnun , should be confirmed. C O N C L U S I O N For the foregoing reason s , th e judgment of the district court is AFFIRMED.

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