UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS " MAR I I AUSTIN DIVISION 

NELSON SHIRLEY, § 

§ 

Plaintiff; § 

§ 

v. § 

§ 

FMC TECHNOLOGIES, INC., § 

TECHNIP FMC PLC, and § 

TECHNIPFMC US HOLDINGS, INC., § 

§ 

Defendants. § 

CASE&20 CV2IRP 

PLAINTIFF'S APPLICATION TO CONFIRM ARBITRATION AWARD 

Plaintiff Nelson Shirley ("Plaintiff' or "Mr. Shirley"), asks the Court to confirm the 

domestic arbitration award against Defendants FMC Technologies, Inc. ("FMC"), Technip FMC 

plc, ("TechnipFMC") and TechnipFMC US Holdings, Inc. ("TechnipFMC US Holdings") 

(collectively, "FMC" or "Defendants"), and would respectfully show the following: 

I. INTRODUCTION 

1. This is a dispute concerning the parties' February 9, 2012 Stock Purchase 

Agreement (the "Purchase Agreement"). In April 2015, Defendants wrongfully withheld $489,792 

from a holdback payment made to Plaintiff in April 2015. 

2. Consistent with the terms of the Purchase Agreement, Mr. Shirley initiated 

arbitration against Defendants on April 17, 2018, and asserted breach of contract and declaratory 

judgment claims against Defendants. 

3. On September 17-19, 2019, a hearing was held in Austin, Texas. On March 10, 

2020, the arbitrator issued an award in favor of Plaintiff and granted Plaintiff $489,792.00 in actual 

damages, plus pre-award interest in the amount of $161,950.00, and $372,732.86 in fees, costs and 

expenses (the "Final Award"). The arbitrator also granted Plaintiff post-award interest at a rate of 

6.75% per annum, simple interest. 

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4. Plaintiff files this application to confirm the arbitration award (this "Application") 

so that a judgment may be entered in his favor for purpose of enforcing the Final Award. 

II. PARTIES, JURISDICTION & VENUE 

5. Plaintiff is an individual citizen of the state of Kansas for purposes of diversity 

jurisdiction. 

6. Defendant FMC Technologies, Inc. is a Delaware corporation and a party to the 

Purchase Agreement. FMC's principal place of business (i.e., its corporate headquarters) is in 

Houston, Texas. It is thus a citizen of Delaware and Texas for purposes of diversity jurisdiction. 

FMC may be served with process via its registered agent CT Corporation System, 1999 Bryan St., 

Suite 900, Dallas, TX 75201. 

7. Defendant TechnipFMC plc is the successor in interest to FMC Technologies, Inc. 

TechnipFMC is a public limited company under the laws of the England and Wales that does 

business in the United States through TechnipFMC USA, Inc., a Delaware entity with its principal 

place of business in Houston, Texas. It is therefore a citizen of Delaware and Texas for purposes 

of diversity jurisdiction. TechnipFMC can be served with process via its registered agent, The 

Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, 

Delaware, 19801. 

8. Defendant TechnipFMC US Holdings, Inc. is the successor in interest to FMC 

Technologies, Inc. TechnipFMC US Holdings is a Delaware corporation with its principal place 

of business in Houston, Texas. It is thus a citizen of Delaware and Texas for purposes of diversity 

jurisdiction. TechnipFMC US Holdings can be served with process via its registered agent, The 

Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, 

Delaware, 19801. 

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9. This Court has diversity jurisdiction under 28 U.S.C. § 1332(a)(1) over all claims 

in this action because: (1) as stated above, Mr. Shirley is not a citizen of any State of which any 

Defendant is a citizen, and (2) the matter in controversy exceeds $75,000, exclusive of interest and 

costs, as explained more fully below. 

10. This Court has personal jurisdiction over Defendants because all three entities are 

domiciled in Texas, do business in Texas, and/or otherwise have purposefully availed themselves 

of the laws of the State of Texas. 

11. Venue is proper in this District and Division under 9 U.S.C. § 9, as the arbitration 

award at issue in this matter was made in this District. 

III. SUPPORTDG EVIDENCE 

12. Plaintiff presents the following evidence in support of this Application, which is 

included in the attached appendix and is incorporated by reference herein: 

Exhibit A: Stock Purchase Agreement; 

Exhibit B: Plaintiff's Original Notice and Demand for Arbitration; 

Exhibit C: Defendants' Notice of Defense; 

Exhibit D: Final Award; 

Exhibit E: Emails regarding selection of the arbitrator; and 

Exhibit F: Declaration of Daniel D. McGuire. 

Plaintiff requests that the Court attach Exhibits A through D with its order confirming the 

arbitration award. 

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IV. FACTUAL AND PROCEDURAL BACKGROUND 

13. Plaintiff previously owned and operated Control Systems International, Inc. 

("CS!"). In February 2012, Plaintiff entered into the Purchase Agreement with FMC to sell his 

equity interests in CSI. [Exhibit A]. The purchase price for Plaintiff's equity in CSI was 

$64,990,000.00. [Id. at § 1.1(b)(ii)]. 

14. Under the Purchase Agreement, $10,000,000.00 of the purchase price was to be 

withheld for purposes of satisfying indemnity claims and/or fmal working capital adjustments, if 

any (the "Hold Back"). [Id. at § 1.3]. The parties agreed that the Hold Back would be paid in full 

to Plaintiff three years after the closing date less the amount of any indemnity claims or working 

capital adjustments permitted under the Purchase Agreement. [Id.]. 

15. On or about April 30, 2015, FMC paid the Hold Back to Plaintiff. However, FMC 

withheld $489,792 from the Hold Back on the alleged basis that revenue was improperly accounted 

for in CSI's books and records. Plaintiff objected to the amount of the Hold Back payment in 

writing and demanded that FMC pay Plaintiff the amount that was withheld. FMC refused to pay 

Plaintiff the amount owed. 

16. On April 17, 2018, Plaintiff initiated arbitration under the dispute resolution 

procedures in Section 8.11 of the Purchase Agreement. Plaintiff asserted a breach of contract claim 

and declaratory judgment claim against Defendants. [Exhibit B]. Defendants filed a Notice of 

Defense on May 9, 2018, denying Plaintiff's claims. [Exhibit C]. 

17. A final arbitration hearing took place on September 17-19, 2019. At the final 

hearing, the parties were represented by counsel. The parties presented witnesses who offered 

sworn testimony, and all exhibits that were marked and offered to the arbitrator for consideration 

were admitted, other than those exhibits or testimony withdrawn by the parties. 

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18. On January 29, 2020, the arbitrator issued an Interim Award (the "Interim Award") 

finding in favor of Plaintiff and awarding Plaintiff $489,792 in actual damages, plus attorneys' 

fees, expenses, pre- and post-judgment interest, and costs. Having obtained complete relief in his 

favor, and pursuant to the Interim Award, Plaintiff submitted evidentiary support for his request 

for pre- and post-judgment interest, attorneys' fees, and costs pursuant to Section 8.11(c) of the 

Purchase Agreement. 

19. On March 10, 2020, the arbitrator issued a Final Award, awarding Plaintiff a total 

of $1,024,474.86, as follows: 

[Exhibit D]. 

Actual Damages $489,792.00 

Pre-Award Interest $161,950.00 

Attorneys' Fees and Costs $354,732.86 

Arbitration Fees $18,000.00 

TOTAL AWARD: $1,024,474.86 

V. ARGUMENT 

20. The parties agreed that any dispute or disagreement among the parties as to the 

interpretation or performance of the Purchase Agreement would be resolved by arbitration in 

accordance with the Center for Public Resources Institute for Dispute Resolutions's ("CPR") 

Non-Administered Arbitration Rules (the "CPR Rules").1 [Ex. A. at § 8.11(a)]. 

Available online at: https://www.cpradr.org/resource-center/rules/arbitrationlnonadministered!20 1 8-cpr-non-administered-arbitration-rules 

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21. Rule 8.1 of the CPR Rules, which is incorporated into the Purchase Agreement, 

provides that the arbitrator "shall have the power to hear and determine challenges to its 

jurisdiction, including any objections with respect to the existence, scope or validity of the 

arbitration agreement." Rule 8.1 further provides that "{t]his authority extends to jurisdictional 

challenges with respect to both the subject matter of the dispute and the parties to the arbitration." 

Id. 

22. Section 8.11 of the Purchase Agreement provides that arbitration between the 

parties will be governed by the Federal Arbitration Act ("FAA"). [Id. at § 8.11(c)]. Section 9 of 

the FAA governs confirmation of arbitration awards and provides that, if the parties have agreed 

to entry of judgment, any party to the arbitration may apply for an order confirming the award 

within one year after the award is made. 9 U.S.C. §9. 

23. The parties agreed to an entry of judgment in Section 8.11(a) of the Purchase 

Agreement. [Id. § 8.11(a)]. The Final Award was issued on March 10, 2020. This Application has 

been timely filed. 

24. On a timely filed application to confirm an arbitration award, the Court must 

confirm an arbitration award unless there are grounds to vacate, modify or correct the award. 

9 USC §9; Hall St. Assocs., LLC. v. Mattel, Inc., 552 U.S. 576, 587 (2008) ("There is nothing 

malleable about 'must grant,' which unequivocally tells courts to grant confirmation in all cases, 

except when one of the 'prescribed' exceptions applies."); Quezada v. Bechtel OG & C Constr. 

Servs., Inc., 946 F.3d 837, 840 (5th Cir. 2020). 

25. The scope of this Court's review is severely limited. United Paperworkers Int'l 

Union v. Misco, Inc., 484 U.S. 29, 36-38 (1987); Brabham v. A.G. Edwards & Sons Inc., 376 F.3d 

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377, 380 (5th Cir. 2004). Section 10 of the FAA provides that a district court may only vacate an 

arbitration award under the following circumstances: 

(1) where the award was procured by corruption, fraud, or undue means; 

(2) where there was evidence of partiality or corruption by the arbitrator; 

(3) where the arbitrator was guilty of misconduct by refusing to postpone the 

hearing, by refusing to hear evidence pertinent and material to the controversy, 

or by engaging in any other misbehavior that prejudiced the rights of any party; 

or 

(4) where the arbitrator exceeded his powers or so imperfectly executed them that 

a mutual, final, and defmite award was not made. 

9 U.S.C. § 10(a); see Hall St., 552 U.S. at 578 (observing that the grounds enumerated in FAA 

§ § 10 and 11 are the only circumstances under which a court may grant vacatur or modification 

under the FAA); accord Citigroup Glob. Markets, Inc. v. Bacon, 562 F.3d 349, 358 (5th Cir. 2009) 

(overruling previous non-statutory grounds supporting vacatur of an arbitration award). The party 

seeking to vacate, modify, or correct an arbitration award has the heavy burden of proof and the 

Court must resolve all doubts in favor of confirming the award. Brabham, 376 F.3d at 385 

(explaining that the court "must remain exceedingly deferential to arbitration"). 

26. Likewise, the scope of the Court's review does not include an examination of the 

merits of the parties' claims; the Court must defer to the reasonable determination of the arbitrator. 

See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 693-94(2010) ("The four grounds 

for vacatur codified in § 10(a) restate the longstanding rule that, '[i]f [an arbitration] award is 

within the submission, and contains the honest decision of the arbitrators, after a full and fair 

hearing of the parties, a court. . . will not set [the award] aside for error, either in law or fact.") 

(citation omitted); Resolution Performance Prod., LLC v. Paper Allied Indus. Chem. & Energy 

Workers Int'l Union, Local 4-1201, 480 F.3d 760, 764-65 (5th Cir. 2007) (explaining that a court 

must confirm an arbitration award if the arbitrator is "arguably construing or applying the contract 

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and acting within the scope of his authority"). As a result, an arbitrator's award is rarely vacated. 

See McShane v. PilePro Steel, LP, No. 1:16-CV-964-LY, 2017 WL 1399703, at *4 (W.D. Tex. 

Apr. 19, 2017) (explaining that vacating an arbitration award is "extremely difficult, and is 

something rarely found by a court"); See also Major League Baseball Players Ass 'ii v. Garvey, 

532 U.. 504, 509 (2001) (noting that the standard for vacatur is so high that "serious error" or 

"improvident, even silly, factfinding" will not support vacatur). 

27. In addition, the Purchase Agreement itself provides that "{t]he decision of the 

arbitrator(s) shall be final and not subject to judicial review and judgment thereon may be entered 

in any court of competent jurisdiction. .. ." [Ex. A at § 8.11(c) (emphasis added)]. 

28. The Final Award in this case must be confirmed. This case does not involve any of 

the rare instances in which vacatur is permitted. To the contrary, (i) the arbitrator was jointly 

selected by the parties without any conflicts; (ii) the arbitrator held a full and fair hearing in which 

all testimony and exhibits offered by the parties were admitted (other than testimony or exhibits 

withdrawn by the parties); and (iii) the arbitrator issued a reasonable award rationally based on the 

Purchase Agreement. [Ex. D, Ex. E]. There is no evidence of fraud, corruption, partiality, or other 

similar factors that would justif' vacating the Final Award in this case. 

29. The arbitrator also properly determined that he had jurisdiction over the parties and 

this dispute. By referencing and incorporating the CPR Rules in the Purchase Agreement, the 

parties granted the arbitrator the authority to resolve this dispute, as well as any disputes as to his 

jurisdiction. See, e.g., Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, 809 F.3d 746, 763 

(3d Cir. 2016) ("Virtually every circuit to have considered the issue has determined that 

incorporation of the [AAA] arbitration rules constitutes clear and unmistakable evidence that the 

parties agreed to arbitrate arbitrability."); CPR Rule 8.1 ("The Tribunal shall have the power to 

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hear and determine challenges to its jurisdiction, including any objections with respect to the 

existence, scope or validity of the arbitration agreement. This authority extends to jurisdictional 

challenges with respect to both the subject matter of the dispute and the parties to the arbitration."). 

Here, the arbitrator concluded that he had jurisdiction over the parties and the subject matter of 

this dispute. Accordingly, the arbitrator acted within the scope of his authority in resolving the 

parties' dispute. 2 30. As set forth in the Final Award, the Arbitrator unambiguously found in Plaintiffs 

favor in all respects. The parties agreed that the prevailing party would recover all expenses, 

including attorneys' fees and costs reasonably incurred in the arbitration. [Id. at § 8.11(c), (a)]. 

Consistent with the Purchase Agreement, the arbitrator awarded Plaintiff, as the prevailing party, 

all expenses incurred by Plaintiff in connection with the dispute, including attorneys' fees and 

costs. Thus, Plaintiff is entitled to entry of judgment consistent with the Final Award. 

31. Because there are no grounds for modifying, correcting, or vacating the award, the 

Court must confirm the arbitration award in this case. 9 U.S.C. §9; Hall St., 552 U.S. at 578. 

VI. CONCLUSION 

Plaintiff respectfully asks the Court to confirm the arbitration award in all respects, enter a 

judgment in accordance with the award, and grant Plaintiff any and all relief, in law or in equity, 

to which he may be justly entitled. 

2 To the extent there is any ambiguity as to whether the arbitrator correctly interpreted the 

Purchase Agreement or acted within the scope of his authority, that ambiguity must be resolved in 

favor of the arbitrator. Brabham, 376 F.3d at 385. 

9 

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Dated: March 11, 2020 Respectfully submitted, 

Is/Daniel D. McGuire 

Daniel D. McGuire 

Texas State Bar No. 24081282 

POLSINELLI PC 

2950 N. Harwood, Suite 2100 

Dallas, Texas 75201 

Telephone: (214) 397-0030 

Facsimile: (214) 397-0033 

dmcguirepolsinel1i.com 

Counsel for Plaintiff Nelson Shirley 

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