Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ALSTOM POWER, INC., §

§

Plaintiff, §

§

v. § Civil Action No. 3:04-CV-2370-L

§

S&B ENGINEERS & §

CONSTRUCTORS, LTD., §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the court are several matters filed by Plaintiff Alstom Power, Inc. (“Plaintiff” or

“Alstom”) and Defendant S&B Engineers & Constructors, Ltd. (“Defendant” or “S&B”). The

matters include: Alstom’s Application to Confirm Arbitration Award, filed January 29, 2004; a

Notice of Voluntary Dismissal, filed by Alstom on October 18, 2006; and the Motion of S&B

Engineers and Constructors Ltd. to Confirm Arbitration Award, filed November 20, 2006. After

carefully reviewing the motions, briefs (both formal and letters), response, reply, record, and

applicable law, the court, for the reasons stated herein, strikes Alstom’s Notice of Voluntary

Dismissal; grants Alstom’s Application to Confirm Arbitration Award; and denies as moot the

Motion of S&B Engineers and Constructors Ltd. to Confirm Arbitration Award.

I. BACKGROUND AND PROCEDURAL HISTORY

This proceeding, filed as an application to confirm an arbitration award, is the same as an

earlier companion proceeding, S&B Engineers and Constructors, Ltd. v. Alstom Power, Inc., 3:04-

CV-150-L (“Civil Action No. 04-150"), which was filed as a motion to vacate the same arbitration

award, differing only in the alignment of the parties and the relief sought by the parties. The

 

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Memorandum Opinion and Order – Page 2

underlying arbitration award required Alstom to pay S&B $1,364,405 for damages that S&B

sustained while subcontracting for Alstom in a mechanical and piping installation project. The

award was issued October 30, 2003. On January 27, 2004, S&B filed a motion to vacate in the

companion proceeding, contending that the arbitration panel’s refusal to hear certain evidence

prevented it from procuring a larger award closer to the six-million dollars in damages it had

originally claimed, or at least closer to the four-million dollars that Alstom’s damage expert had

estimated as S&B’s losses. Two days later, on January 29, 2004, Alstom filed the instant

Application to Confirm Arbitration Award in the United States District Court for the Eastern District

of Virginia. The Virginia court stayed the application to confirm on February 9, 2004, pending

resolution of the first-filed motion to vacate in this court. The Virginia court subsequently

transferred the application to confirm to this court on October 21, 2004, for possible consolidation

with the first-filed motion to vacate. The two opposing motions, however, were not consolidated.

Instead, the application to confirm in this case was effectively stayed until the court issued its

memorandum order and opinion of October 2, 2006, denying S&B’s motion to vacate the arbitration

award in the companion proceeding. 

Shortly after the court’s denial of S&B’s motion to vacate in Civil Action No. 04-150,

Alstom filed a Notice of Voluntary Dismissal, contending that, pursuant to Fed. R. Civ. P. 41(a), it

had the right to unilaterally terminate its application, since S&B had yet to file an answer or motion

for summary judgment. Through a series of letters to the court, filed as notices, Alstom argued that

the court should not enter a judgment confirming the arbitration award, because its voluntary

dismissal terminated the only pending motion to confirm the arbitration award, and that S&B could

no longer move to confirm, as the one-year statute of limitations under the Federal Arbitration Act

 

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1

Rule 81 provides that “[i]n proceedings under Title 9, U.S.C., relating to arbitration . . . these rules

apply only to the extent that matters of procedure are not provided for in those statutes.” Fed. R. Civ. P.

81(a)(3).

Memorandum Opinion and Order – Page 3

(“FAA”) had expired. In response, S&B filed its own motion to confirm the arbitration award on

November 20, 2006, in both this and the companion proceeding. S&B argues that it is entitled to

a judgment confirming the award, including prejudgment interest. Alstom opposes the entry of a

judgment to confirm the arbitration award.

II. VOLUNTARY DISMISSAL UNDER RULE 41

Alstom contends that this proceeding, 3:04-CV-2370-L, was “conclusively dismissed” when

it filed its notice of dismissal, pursuant to Fed. R. Civ. P. 41, and that this court, therefore, cannot

enter a judgment to confirm the arbitration award. See Memorandum of Alstom Power Inc. in

Opposition to S&B Engineers and Constructors Motion to Confirm Arbitration Award and Request

for Pre-Judgment Interest (“Alstom Response”) at 5. S&B argues, however, that Alstom cannot

unilaterally dismiss its application to confirm the arbitration award, because Rule 41 does not apply

to a specialized proceeding such as arbitration. Memorandum of S&B Engineers and Constructors

Ltd. in Support of Its Motion to Confirm Arbitration Award and Its Request for Entry of Judgment

for the Principal Amount of the Award and for Pre-Judgment Interest Thereon (“S&B Br.”) at 3.

S&B contends that Rule 41 does not apply to a proceeding relating to arbitration for two reasons:

(1) a proceeding relating to arbitration cannot be brought as a complaint to commence a civil action

under the FAA; and (2) Rule 81 restricts the applicability of the Federal Rules of Civil Procedure

in arbitration matters. S&B Br. at 3-4 (citing 9 U.S.C. § 6; Fed. R. Civ. P. 81(a)(3)).1

 

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Rule 41 pertains to voluntary dismissal of actions and provides as follows:

an action may be dismissed by the plaintiff without order of court (i) by filing a

notice of dismissal at any time before service by the adverse party of an answer or

of a motion for summary judgment, whichever first occurs, or (ii) by filing a

stipulation of dismissal signed by all parties who have appeared in the action.

Fed. R. Civ. P. 41(a)(1) (emphasis added). “A civil action is commenced by filing a complaint with

the court.” Fed. R. Civ. P. 3 (emphasis added). On the other hand, matters heard by the court

relating to arbitration are commenced by the filing of an “application” or “motion.” See 9 U.S.C.

§ 6 (“Any application to the court hereunder shall be made and heard in the manner provided by law

for the making and hearing of motions.”). Moreover, matters relating specifically to confirmation

or vacatur of an arbitration award are required to be heard by motions. See 9 U.S.C. §§ 9, 10 (stating

that parties seeking an order of the court to confirm or to vacate an award must do so by

application). As neither of the proceedings pending in this court relating to the arbitration award at

issue was commenced by a complaint, they cannot be actions as contemplated by Fed. R. Civ. P.

41(a). That both of these proceedings are docketed by the district clerk as civil actions is of no

moment. Such docketing and designation simply employ a clerical procedure used by a number of

districts across the nation. Designation of such arbitration proceedings as “actions,” rather than

motions, is a misnomer, but such an error in nomenclature does not change the substantive nature

of the filings. Regardless of their designation, the applicable statute makes it unequivocally clear

that matters pertaining to arbitration are motions, not actions.

Rule 41 allows a plaintiff to dismiss an action when no answer or summary judgment motion

has been filed. Answers and summary judgment motions are matters that relate to civil actions, not

motions pertaining to arbitration proceedings. See Fed. R. Civ. P. 7(a) and 56. A party does not file

 

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2

In Hamilton, the court upheld the plaintiff’s right to dismiss a reparations action after defendants

prevailed on a motion to compel arbitration. 813 F.2d at 1534-35. In Pilot, the court upheld the plaintiff’s

right to dismiss an action for an injunction after an adverse ruling was issued in a separate arbitration of

related matters. 506 F.2d at 916. In Scam, the court permitted the plaintiff to dismiss an action for patent

Memorandum Opinion and Order – Page 5

an answer or a motion for summary judgment in response to a motion to vacate or to confirm an

arbitration award. Rule 41, therefore, has no applicability to a proceeding relating to arbitration.

Alstom, by arguing that Rule 41 applies since Title 9 provides no procedure for voluntary

dismissal, overlooks the whole purpose of arbitration. See Alstom Response at 5. If the courts

afforded the full range of procedural rights allowed under the Federal Rules of Civil Procedure, such

approach would defeat the objective of arbitration, which is to resolve the parties’ dispute more

expeditiously outside the judicial process. See, e.g., Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins.

Co., 304 F.3d 476, 489, 492 (5th Cir. 2002).

Alstom’s argument misses the mark in another respect. While there is no mention of

voluntary dismissal in Title 9, the statute specifically provides a procedure which allows a party to

file with the court a motion to vacate or to confirm an arbitration award, and the court proceeds to

rule on the motion pursuant to Title 9 and the applicable case authority. Title 9 provides all the

procedure necessary for a court to rule on a motion filed thereunder, and no additional procedures

are needed.

Alstom also cites to several cases in which a Rule 41 voluntary dismissal was upheld. 

Alstom Response at 6 (citing Hamilton v. Shearson-Lehman Am. Exp., Inc., 813 F.2d 1532 (9th Cir.

1987); Pilot Freight Carriers, Inc. v. Int’l Bhd. of Teamsters, 506 F.2d 914 (5th Cir. 1975); Scam

Instrument Corp. v. Control Data Corp., 458 F.2d 885 (7th Cir. 1972)). Alstom’s reliance on these

cases is misplaced, as each involved actions initiated as civil actions that were commenced by the

filing of a complaint, pursuant to Fed. R. Civ. P. 3.2

 

 

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infringement, even though the defendant filed a document entitled a motion for partial summary judgment,

because the court held the purported summary judgment motion was in fact a motion to dismiss. 458 F.2d

at 880. None of these actions was initiated as an application or motion to confirm or to vacate an arbitration

award, and dismissal by Rule 41 was, therefore, permissible and proper. Scam was not even marginally

related to an arbitration, and the court fails to see its relevance.

Memorandum Opinion and Order – Page 6

While S&B does not cite to any cases regarding the applicability of Rule 41 to a motion to

confirm or to vacate an arbitration award, it does cite to several cases where courts have held other

rules of civil procedure not applicable to an arbitration proceeding. See, e.g., D.H. Blair & Co., Inc.

v. Gottdiener, 462 F.3d 95 (2d Cir. 2006) (holding that Rule 55 for default judgments does not

operate in the context of a motion to confirm or vacate an arbitration award); IFC Interconsult, AG

v. Safeguard Int’l Partners, LLC, 438 F.3d 298, 309 (3d. Cir. 2006) (Rule 12(b) and the rules of

civil procedure, generally, “do not apply to the responsive motion practice” of a motion to confirm

an arbitration award.); Health Servs. Mgmt. Corp. v. Hughes, 975 F.2d 1253, 1258 (7th Cir. 1992)

(Rule 16 treatment for a scheduling conference and hearing did not apply to applications to vacate

and to confirm an arbitration award, because 9 U.S.C. §6 “preempts the applicability of the Federal

Rules and an Application to Vacate is to be treated procedurally in the manner of a motion.”); Booth

v. Hume Publishing, Inc., 902 F.2d 925 (11th Cir. 1990) (A party in a proceeding to confirm an

arbitration may not bring counterclaims, because the rules of civil procedure may not apply, or apply

“less rigidly,” in a special statutory proceeding if application of the rules “would frustrate the

statutory purpose,” such as the summary nature of a proceeding to confirm an arbitration award.).

The court recognizes that the cases cited by S&B are not controlling; however, it finds the

rationale employed in those cases persuasive. As the Seventh Circuit noted when it declined to

apply Rule 16 to an arbitration proceeding, “It would defeat the purpose of arbitration if a reviewing

court was obligated to give all the due process owed to parties filing actions of a civil nature and

 

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3

Additionally, the court notes that Rule 81 specifically limits the applicability of the federal rules to

arbitration proceedings. Rule 81 provides that “[i]n proceedings under Title 9, U.S.C., relating to arbitration

. . . these rules apply only to the extent that matters of procedure are not provided for in those statutes.” Fed.

R. Civ. P. 81(a)(3). As the court noted earlier, Alstom’s argument that Rule 41 should apply because Title

9 provides no procedure for voluntary dismissal would frustrate the objective of Title 9. Arbitration simply

is not designed to allow the parties to have all procedural tools that are available through the judicial process.

Memorandum Opinion and Order – Page 7

deserving of Federal Rule 16 treatment, e.g., a scheduling conference, hearing, etc.” Hughes, 975

F.2d at 1258. In other words, if the rules of civil procedure applied, and permitted an answer, a

motion for summary judgment, a counterclaim, or other such pleadings in a proceeding to vacate or

to confirm an arbitration award, the purpose of avoiding protracted litigation, and costs associated

with such litigation, through the arbitration process would be thoroughly frustrated.3

Alternatively, even if Rule 41 does apply to arbitration proceedings, the interest of justice

dictates that it not apply to the instant proceeding. As the Fifth Circuit has pointed out, a Rule 41

dismissal without prejudice is only permissible where where a defendant has not yet filed an answer

or motion for summary judgment, because “the purpose of the rule is to permit a plaintiff to take the

case out of court at an early stage if no other party will be prejudiced.” Exxon Corp. v. Maryland

Cas. Co., 599 F.2d 659, 662 (5th Cir. 1979). “The theory underlying this limitation is that, after the

defendant has become actively engaged in the defense of a suit, he is entitled to have the case

adjudicated[.]” Id. at 661. The Second Circuit has taken this same approach and refused to apply

Rule 41(a)(1) in a case where a motion for preliminary injunction in connection with the plaintiff’s

suit required a three-day hearing and yielded a record of some 420 pages. See Harvey Aluminum,

Inc. v. American Cyanamid Co., 203 F.2d 105, 107-108 ( (2d Cir. 1953) (“[A] literal application of

Rule 41(a)(1) to the present controversy would not be in accord with its essential purpose of

preventing arbitrary dismissals after an advanced stage of a suit has been reached.”).

 

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Memorandum Opinion and Order – Page 8

As stated previously, this proceeding is more than three years old, having been filed in

January 2004. Initially, there was a race to the courthouse. S&B filed first (Civil Action No. 04-

150), and sought to have the arbitration award vacated. Two days later, Alstom filed a motion to

confirm in the Eastern District of Virginia. Shortly after this court issued its decision in Civil Action

No. 04-150, Alstom filed its Notice of Voluntary Dismissal, rather than requesting the court to enter

a judgment on the motion to confirm that it filed almost three years earlier. Under Alstom’s

approach, the use of legal legerdemain would allow a plaintiff to dismiss an action after the merits

have been determined, and presumably incur no liability, as Alstom strenuously argues that S&B’s

motion to confirm the award is barred by a one-year statute of limitations. Clearly, S&B would

suffer undue prejudice if the court were to allow Alstom to voluntarily dismiss this proceeding as

an action under Rule 41. The court does not believe that Rule 41 embraces or contemplates such

an unjust result.

As 9 U.S.C. § 9 points out, a court “must grant” an application for an order confirming the

award “unless the award is vacated, modified, or corrected[.]” 9 U.S.C. § 9. Since the court has not

vacated, modified, or corrected the arbitration award in any way, it sees no bar to entering an order

and judgment confirming the award at this point. The court deems Alstom’s Notice of Voluntary

Dismissal improvidently filed, and will order that it be stricken, and rendered null and void. By

striking the notice, this proceeding is in the same posture as if Alstom had not filed the notice.

III. S&B’S MOTION TO CONFIRM

In light of Alstom’s attempt to withdraw its motion and dismiss this proceeding, S&B filed

its own motion to confirm the arbitration award following the court’s denial of its motion to vacate

in the companion proceeding. The court need not reach the merits of S&B’s motion to confirm,

 

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4

S&B uses two terms interchangeably: “post-award pre-judgment” interest and “pre-judgment

interest.” As any interest awarded prior to the entry of a judgment in this proceeding would be “prejudgment”

interest, that is the term this court will use to address this issue.

5

S&B states in its brief that it “concedes that any claim it might have had for prejudgment interest

prior to the award was merged with the award.” S&B Br. at 14. S&B states its “entitlement is therefore

defined by the award, which specifies that ‘post-award interest shall accrue pursuant to applicable law’ from

the due date for payment of the $1,364,405 principal amount of the award, which was fifteen days after the

award was rendered.” Id. Accordingly, any reference to “prejudgment interest” includes any interest claimed

by S&B that may have accrued prior to the arbitration award.

Memorandum Opinion and Order – Page 9

because it will strike Alstom’s Notice of Voluntary Dismissal, and grant Alstom’s application to

confirm. Accordingly, the court will not address any of the arguments raised by the parties, except

for the issue of prejudgment interest. 

IV. PREJUDGMENT INTEREST

S&B contends that it is entitled to prejudgment interest4

 from fifteen days after the date of

the award to the day before the date of judgment.5 S&B Br. at 12-13. Alstom argues that S&B is

not entitled to prejudgment interest, because Alstom tendered full payment of the award to S&B

within fifteen days of the award, which S&B refused. Alstom Response at 2-3. Alstom argues that,

under Texas law, when a judgment creditor has received an unconditional tender of the money

awarded, there is no need for the continuing accrual of interest. Id. at 2 (citing Hopkins v. State, No.

03-03-00499-cv, 2006, WL 1126224 *6 (Tex. App. – Austin April 27, 2006). S&B contends that

Alstom’s tender was conditional, in the form of an “accord and satisfaction,” and, therefore,

ineffective. S&B Br. at 14-15. Alstom counters that the principle of accord and satisfaction was

never triggered, since Alstom did not attempt to make a partial payment in exchange for S&B’s

agreement to settle a disputed claim. Alstom Response at 2-3. Both parties agree that S&B’s

entitlement to prejudgment interest turns on whether Alstom’s tender was conditional or

unconditional in nature. See Reply Memorandum of S&B Engineers and Constructors in Support

 

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6

A copy of the check and accompanying letter was submitted by Alstom to the court through a letter

notice filed October 18, 2006. The court notes that the letter states in total: “Please find enclosed ALSTOM

Power Inc.’s check in the amount of $1,364,405.00. In accordance with the arbitration award dated October

30, 2003, the sum represents the payment of the American Arbitration Award in Full.” The accompanying

invoice stub states: “Payment of AAA award in full,” and the face of the check has the notation “void if not

cashed in 90 days.”

Memorandum Opinion and Order – Page 10

of Its Motion to Confirm Arbitration Award and Its Request for Entry of Judgment for the Principal

Amount of the Award and for Pre-Judgment Interest Thereon (“S&B Reply”) at 5 (“The parties

agree that the legal effect of Alstom’s tender depends on whether it was ‘conditional’ or

‘unconditional’ in nature.”). The court determines for the reasons stated below that Alstom’s tender

was unconditional, and S&B’s refusal of that tender extinguished its entitlement to prejudgment

interest.

The parties do not dispute the facts surrounding Alstom’s tender of a check following the

arbitration award. They dispute the nature of that tender, and how it should be interpreted. Alstom

tendered a check to S&B on November, 12, 2003, for $1,364,405, the full amount of the arbitration

award. S&B argues that the tender was conditional, because the invoice stub on Alstom’s check

stated it was “payment of AAA award in full.”6 S&B Br. at 15. S&B states that it did not cash the

check over concerns about the “possible legal implications of cashing the check.” Id. Instead, S&B

initiated its motion to vacate the arbitration award on January 27, 2004. Later, on October 22, 2004,

S&B’s counsel wrote to Alstom’s counsel asking if S&B could negotiate the check (or a replacement

check) “without any prejudice to any rights it may have in the ongoing proceedings[.]” S&B Br. at

16. Alstom’s counsel responded by saying that “[i]f S&B cashes the check, S&B will have

embraced the award and thereby acknowledged its validity and waived its arguments that the award

should be set aside, and Alstom will make that point forcefully to the court.” Id. S&B argues that

the check stub stating it was payment in full, combined with Alstom’s later response, shows that the

 

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Memorandum Opinion and Order – Page 11

tender was conditioned “upon S&B’s relinquishment of its rights to further payments.” Id. at 17.

The court disagrees. 

Under Texas law an accord and satisfaction rests on a “contract, express or implied, in which

the parties agree to the discharge of the existing obligation by means of the lesser payment tendered

and accepted.” Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455. (Tex. 1970) (emphasis added).

Thus, to show that a tender is conditioned upon a release or satisfaction of a disputed claim, a party

must establish an attempt to reach an agreement or a meeting of the minds. See id. at 455; see also

Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004). As the Texas

Supreme Court explains, for a tender to be conditional, and the principle of accord and satisfaction

to apply:

There must be an unmistakable communication to the creditor that tender of the

lesser sum is upon the condition that acceptance will constitute satisfaction of the

underlying obligation. It has been said that the conditions must be made plain,

definite and certain; that the statement accompanying the tender of a sum less than

the contract price must be so clear, full and explicit that it is not susceptible of any

other interpretation; that the offer must be accompanied with acts and declarations

which the creditor is bound to understand.

Republic, 150 S.W.3d at 427. 

Here, Alstom’s notation of “payment in full” on the check it tendered twelve days after the

award does not constitute a conditional tender or an attempt to effectuate an accord and satisfaction.

First, the tender was made following the issuance of an arbitration award that established the amount

of damages to which S&B was entitled; therefore, Alstom’s tender for the full amount of the award

was not an attempt to discharge a greater obligation through a lesser payment. Second, Alstom’s

letter accompanying the check and invoice stub stated that “the sum represents the payment of the

American Arbitration Award in full.” The invoice stub repeated the words “payment of AAA award

 

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Memorandum Opinion and Order – Page 12

in full”; therefore, the letter and invoice stub merely indicated that the check tendered was for the

full amount of the arbitration award, not in full satisfaction of any disputed debt owed. Such

notation of full payment is not sufficient to constitute an unmistakable communication from Alstom

indicating that acceptance of the check would limit S&B’s right to contest the award. The so-called

“conditional” nature of the tender was not so definite, certain, clear, or explicit that S&B was

“bound to understand” it, since S&B fully acknowledges that it was unsure about the “possible

implications of cashing the check,” and some eleven months later sought clarification from Alstom.

It is not uncommon for a judgment to be paid so that it cuts off the accrual of interest, at least to the

amount awarded, even if that amount is disputed. As Texas courts have held, full payment of a

judgment can stop postjudgment interest from accruing. See Miga v. Jensen, 96 S.W.3d 207, 212

(Tex. 2002) (“When a judgment creditor has received an unconditional tender of the money

awarded, and may invest it as he chooses, there is no need for the continuing accrual of postjudgment interest. This is true whether or not an appeal of the underlying judgment is ongoing.”)

(emphasis added); see also Murphy v. Travelers Ins. Co., 534 F.2d 1155, 1165 (5th Cir. 1976)

(applying Texas law, the court stated: 

[O]nce a stakeholder makes an unconditional offer to give up possession of a

disputed fund, it ceases to exert that dominion over the money sufficient to justify

an obligation to pay interest thereon, and the rule is that once such an unconditional

tender is made, any liability for interest ceases as of the date of tender.)

This court sees no difference between the tender of the amount of a judgment award to

prevent postjudgment interest from accruing and the tender of the amount of an arbitration award

to prevent post-award, prejudgment interest from accruing. Just as payment of a judgment will not

impair a party’s right to appeal the judgment, acceptance of Alstom’s tender would not have

prevented S&B from filing its motion to vacate the arbitration award. This court cannot say what

 

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Memorandum Opinion and Order – Page 13

effect S&B’s acceptance of the payment would have had on the court’s overall consideration of its

motion to vacate, but the court knows of no legal bar that would have terminated S&B’s right to

argue for vacatur simply because S&B had accepted payment of the award. S&B had several

choices. It could have accepted the check, and argued about the legal effect of taking the check at

a later date; accepted the check and countered with its own letter stating that it intended to cash the

check tendered without any limitations on its rights, particularly since S&B expressed concern about

Alstom’s solvency during the arbitration; or it could have refused to cash the check. As the court

noted in its earlier opinion denying S&B’s motion to vacate the award, S&B made a choice, and a

party has to live with the legal consequences of its choices. Since Alstom’s tender was not

conditional, its obligation to pay prejudgment interest was extinguished when it tendered full

payment of the arbitration award prior to the payment’s due date.

Alstom did later send S&B a letter suggesting that acceptance of the check would indicate

that S&B embraced the arbitration award, but that letter, issued some eleven months after the initial

tender, does not transform the original tender into a conditional one. First, Alstom’s communication

was in response to S&B’s inquiry about the check (or a replacement check) during the pendency of

S&B’s motion to vacate. The court does not believe the letter constitutes a conditional tender,

because at no point in the communication did Alstom suggest that S&B’s acceptance of the check

(or a replacement check) would be conditioned upon S&B’s voluntary or agreed withdrawal of its

motion to vacate. Alstom made no demand for S&B to drop further claims. In other words, the

court sees no definite or certain language indicating that Alstom offered to pay S&B in exchange

for S&B’s return promise to withdraw from the pending proceedings. Instead, Alstom stated that

if S&B accepted payment, it would forcefully argue to the court that S&B had embraced the award.

 

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Memorandum Opinion and Order – Page 14

Alstom was, thus, pointing out, that an acceptance of payment by S&B would constitute an

additional argument that it would urge in the pending proceedings. There was simply no attempt

to reach a meeting of the minds. Second, even if Alstom’s response letter may be interpreted as an

attempt to effectuate an accord and satisfaction, the attempted conditional offer was not made until

October 22, 2004. As the court noted above, Alstom’s obligation to pay prejudgment interest had

already been extinguished on November 12, 2003, when it first tendered full payment of the

arbitration award. The court determines that because Alstom unconditionally tendered payment of

the arbitration award three days before payment was due, but S&B refused it by declining to cash

the check (or to even inquire about it for eleven months), S&B is not entitled to prejudgment

interest.

V. CONCLUSION

For the reasons stated herein, the court strikes Alstom’s Notice of Voluntary Dismissal, and

this notice is hereby rendered null and void and shall have no effect on Alstom’s Application to

Confirm Arbitration Award. The court grants Alstom’s Application to Confirm Arbitration Award

and, therefore, confirms the arbitration award of $1,364,405 made on October 30, 2003; and denies

as moot the Motion of S&B Engineers and Constructors Ltd. to Confirm Arbitration Award.

It is so ordered this 30th day of April, 2007.

_________________________________

Sam A. Lindsay

United States District Judge

 

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