Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

STEPHEN A. HODGSON,

Plaintiff,

vs. Case No.: 5:10cv86/RS/MD

IAP READINESS MANAGEMENT SUPPORT,

Defendant.

_____________________________________________________________________

REPORT AND RECOMMENDATION

This action originates from an arbitration proceeding conducted between

plaintiff and defendant before an American Arbitration Association arbitrator. (Doc. 1

1, p. 2; Doc. 14, Lipowitz Aff., Ex. A). The underlying dispute concerns the

defendant’s alleged breach of an employment contract with plaintiff. (Id.). The

defendant moved for summary judgment in the arbitration proceeding. (Doc. 14,

Lipowitz Aff., Ex. A). On January 25, 2010, the arbitrator issued an eight-page

Opinion and Award of Arbitrator in which she found in favor of the defendant and

against the plaintiff. (Id.). 

On April 21, 2010, plaintiff sought to vacate the arbitrator’s award by filing a

Complaint in this court. (Doc. 1, p. 1 ¶ 2). Because plaintiff erroneously identified 2

In the arbitration proceeding, the defendant was identified as “IAP, Readiness Mgt. Support.”

1

(Doc. 14, pp. 11-20). The defendant has advised the court that Readiness Management Support, L.C.

is a wholly owned subsidiary of IAP Worldwide Services, Inc. , and that in naming the defendant as

a single entity plaintiff has “confused and conflated” the two. (Doc. 14, p. 1 n. 1). For purposes of

this Report and Recommendation, references to the defendant will be to “IAP.”

In his Complaint, plaintiff asserts jurisdiction under 28 U.S.C. § 1332, (doc. 1, p. 1 ¶ 3) and

2

describes this cause of action as involving two “issues”: (1) the defendant’s alleged breach of an

employment contract with plaintiff, and (2) “[t]he Arbitrator exceeded authority by issuing a ‘Summary

Judgment’ without a hearing, thereby refusing or neglecting to hear pertinent evidence.” (Id., p. 2).
Page 2 of 10

his initial pleading as a Complaint (doc. 1, p. 1 ¶ 2 and p. 3), the case was treated by

both parties and the court as a new civil litigation. On July 28, 2010 the defendant

filed a motion to dismiss for lack of subject matter jurisdiction, arguing that this

action is time-barred under the Federal Arbitration Act, 9 U.S.C. § 12. (Doc. 14).

Defendant alternatively sought dismissal under Federal Rule of Civil Procedure 

12(b)(6), arguing that the Complaint failed to allege any proper grounds for vacating

the arbitrator’s award under 9 U.S.C. § 10. (Doc. 14). Plaintiff responded in

opposition to dismissal. (Doc. 18). 

On August 20, 2010, the undersigned issued an Order and Notice. (Doc. 19)

The Order advised the parties that the Federal Arbitration Act (“FAA”) and the law

of this Circuit required the court to treat plaintiff’s Complaint as a Motion to Vacate

an arbitration award. See 9 U.S.C. § 6 (providing that actions to challenge or confirm

arbitration awards “shall be made and heard in the manner provided by law for the

making and hearing of motions.”); O.R. Securities, Inc. v. Prof'l Planning Associates,

Inc., 857 F.2d 742, 745-46 (11 Cir. 1988) (holding that the proper procedure for a

th

party seeking to vacate an arbitration award is to file a motion to vacate in the

district court); id. at 746 (reviewing district court’s disposition of the case (where the

plaintiff filed a complaint and the defendant filed a motion to dismiss) as though the

plaintiff had filed a motion to vacate and the defendant had opposed that motion)

(citing Sacks v. Reynolds Securities, Inc., 593 F.2d 1234, 1239 (D.C. Cir. 1978) (“The

liberality of the . . . Federal Rules is such that an erroneous nomenclature does not

prevent the court from recognizing the true nature of a motion.”)). Correspondingly,

the parties were advised that defendant’s motion to dismiss (doc. 14) would be

treated as a Response in Opposition to the Motion to Vacate, and that plaintiff’s

response (doc. 18) would be treated as a Reply. 

The Order and Notice informed the plaintiff that, as the moving party, he bore

Plaintiff seeks $185,000 in damages and to “[v]acate the Summary Judgment of the AAA Arbitrator.”

(Id.).

Case No: 5:10cv86/RS/MD
Page 3 of 10

the burden of showing that he was entitled to judicial review of the award (e.g., that

he met all statutory preconditions to review, including providing timely notice to the

defendant), and that the award should be vacated. Fed. R. Civ. P. 7; 9 U.S.C. § § 10,

12; see also Scott v. Prudential Sec., Inc., 141 F.3d 1007, 1014 (11 Cir. 1998) th

(“[Plaintiff], as the moving party, bears the burden of setting forth sufficient grounds

to vacate the arbitration award.”); O.R. Securities, 857 F.2d at 745-46 (clarifying that

the burden is on the moving party to allege a sufficient basis to support his claims

for relief). The parties were also advised that plaintiff’s Motion to Vacate,

defendant’s Response, and plaintiff’s Replywould be taken under advisement bythe

undersigned on September 3, 2010, and that because the court did not contemplate

scheduling a hearing on plaintiff’s Motion, the parties should file and serve affidavits

and any other documents or materials authorized to be filed under the Federal Rules

of Civil Procedure prior to that date. See Fed. R. Civ. P. 43 (providing that the court

may hear a motion on affidavits); Fed. R. Civ. P. 78 (providing that the court may

determine a motion on the briefs). In response, plaintiff has filed an affidavit and

documents addressing the merits of his claims. (Doc. 20). His response does not

address the timeliness issue. For the reasons that follow, the undersigned

recommends that plaintiff’s Complaint, construed as a Motion to Vacate the

arbitration award under 9 U.S.C. § 10, be denied.

DISCUSSION

Timeliness

One of the bases of defendant’s opposition to plaintiff’s Motion to Vacate

centers on its timeliness, or the lack thereof. Under the FAA, “[n]otice of a motion

to vacate, modify, or correct an award must be served upon the adverse party or his

attorney within three months after the award is filed or delivered.” 9 U.S.C. § 12.

The law is well-settled that “[a] party to an arbitration award who fails to comply with

the statutory precondition of timely service of notice forfeits the right to judicial

Case No: 5:10cv86/RS/MD
Page 4 of 10

review of the award.” Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d

1155, 1158 (10 Cir. 2007) (citation omitted); Piccolo v. Dain, Kalman & Quail, Inc.,

th

641 F.2d 598, 600 (8 Cir. 1981) (same); see also Wallace v. Buttar, 378 F.3d 182 (2 th nd

Cir. 2004) (holding that “a party may not raise a motion to vacate, modify or correct

an arbitration award after the three month period has run”) (citation omitted); T.

McGann Plumbing, Inc. v. Chicago Journeymen Plumbers’ Local 130, U.A., 522

F.Supp.2d 1009, 1014 (N.D. Ill. 2007) (holding that “a party is barred from challenging

an arbitration award if he does not do so within the applicable statute of limitations

period”); Kruse v. Sands Brothers & Co., 226 F.Supp.2d 484, 486 (S.D. N.Y. 2002)

(explaining that there is no exception to the FAA’s three-month limitation period, and

that there is good reason for so limiting challenges to arbitration awards); Federated

Rural Elec. Ins. Exch. v. Nationwide Mut. Ins. Co., 134 F.Supp.2d 923, 932 (S.D. Ohio

2001) (holding that “Nationwide did not challenge the 1996 arbitration award within

the FAA’s three-month statute of limitations. Therefore, it may not challenge the

award now or anytime in the future.”). 

In the instant case, the defendant asserts that the limitations period began to

run on January 25, 2010, the date the award issued. (Doc. 14, p. 8). The defendant

has submitted a copy of the arbitration award bearing that date. (Doc. 14, Lipowitz

Aff., Ex. A). Plaintiff does not maintain, nor has he submitted evidence

demonstrating, that the award was filed or delivered on a later date. Therefore, in

order to be timely, plaintiff was required to serve notice of this action on the

defendant or his attorney by April 25, 2010.

Plaintiff filed his Motion to Vacate in this court on April 21, 2010. (Doc. 1). The

last page of the Motion contains the following statement: “I hereby state that I am

mailing by Certified Mail an exact copy of this Complaint to the Defendant’s attorney,

Ford and Harrison. Certified on this date, April 19, 2010 by [plaintiff’s signature].” 

(Doc. 1, p. 3). Defendant’s attorney in the arbitration proceeding – Edmund McKenna

– is defendant’s present counsel. (Doc. 14, Lipowitz Aff., Ex. B). Mr. McKenna

Case No: 5:10cv86/RS/MD
Page 5 of 10

asserts that as of July 28, 2010 (the date defendant’s Response was filed), he had

not been served with a copy of plaintiff’s Motion to Vacate. (Doc. 6, p. 1; Doc. 14, p.

8). Although plaintiff has had two opportunties to submit evidence showing that he

did serve either a copy of his Motion to Vacate, or some other notice of this

proceeding on defendant’s attorneybyApril 25, 2010, plaintiffhas submitted nothing

on the timeliness issue. Specifically, no “Return Receipt” of the claimed Certified

Mail posting of April 19, 2010 has been produced. (Docs. 18, 20). Therefore, plaintiff

does not maintain, nor has he submitted evidence demonstrating, that he served

defendant’s attorney with notice of this lawsuit by April 25, 2010. 

The defendant, IAP, states that as of July 28, 2010 it had not been served with 

a copy of plaintiff’s Motion to Vacate, although on July 3, 2010, the defendant

received from plaintiff a copy of the form for consenting to trial by magistrate judge

entitled “Notice, Consent, and Reference of a Civil Action to a Magistrate Judge.” 

(Id., Lipowitz Aff.). But that form merely provided notice of a magistrate judge’s

availability to conduct the proceedings in this case , not notice that plaintiff had

moved to vacate the arbitration award. Furthermore, the Notice was not served on

the defendant within the three-month limitations period. Again, plaintiff does not

maintain, nor has he submitted evidence demonstrating, that he served IAP with

notice of this litigation on or before April 25, 2010. 

Because the record before the court demonstrates that plaintiff failed to

comply with the three-month limitations period established by 9 U.S.C. § 12,

plaintiff’s Motion to Vacate should be denied as untimely, and this action dismissed.3

Because plaintiff’s initial pleading was erroneously titled and docketed as a Complaint, this

3

court issued an Order on April 27, 2010 – two days after the limitations period expired – directing

issuance of a summons and advising plaintiff that it was his responsibility to serve the summons and

Complaint in the time and manner prescribed by Federal Rule of Civil Procedure 4. (Doc. 3). The

court has considered whether this Order could have caused plaintiff to miss the August 25, 2010

deadline, but has determined that it could not, because it issued after the limitations period expired.

Moreover, in order for this circumstance to equitably toll the limitations period, plaintiff would have

to establish diligence, which he has not done.

The court has also reviewed plaintiff’s assertions in his motion to re-issue summons (doc. 13)

Case No: 5:10cv86/RS/MD
Page 6 of 10

Plaintiff Has Not Met His Burden of Showing That the Award Should Be Vacated

Even if the court considered the merits of plaintiff’s request to vacate the

arbitration award, this case should be dismissed because plaintiff has failed to

allege sufficient bases to support his claims for relief.

Plaintiff, as the moving party, bears the burden of setting forth sufficient

grounds to vacate the arbitration award. Scott v. Prudential Sec., Inc., 141 F.3d 1007,

1014 (11 Cir. 1998) (citing O.R. Secutiries, 857 F.2d at 746). The FAA specifies the th

following grounds for vacating an arbitration award:

(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 were guilty of misconduct in refusing to

postpone the hearing, upon sufficient cause show, or in refusing to

hear evidence pertinent and material to the controversy; or of any

other misbehavior by which the rights of any party have been

prejudiced.

(4) where the arbitrators exceeded their powers, or so imperfectly

executed them that a mutual, final and definite award upon the subject

matter submitted was not made.

9 U.S.C. § 10(a) (2009). Courts are generally prohibited from vacating an arbitration

award on the basis of errors of law or interpretation. Wilko v. Swan, 346 U.S. 427,

74 S.Ct. 182, 98 L.Ed. 168 (1953). 

The court has carefully considered all of plaintiff’s submissions – his Motion

to Vacate (doc. 1), his Reply (doc. 18) and his submission in response to the court’s

Order and Notice (doc. 20) – to determine whether plaintiff has met his burden. 

and motion to extend time for service of summons (doc. 12) for any indication that plaintiff attempted

to serve notice of this litigation prior to expiration of the April 25, 2010 deadline. (See also Doc. 20,

p. 1 ¶ 4). These documents indicate that plaintiff first attempted to serve a copy of his

Complaint/Motion to Vacate on the defendant on July 6, 2010. (Doc. 12, p. 2). This is well after the

limitations period expired.

Case No: 5:10cv86/RS/MD
Page 7 of 10

Plaintiff’s Motion to Vacate contains a single contention: that the award should be

vacated because the arbitrator “exceeded authority by issuing a ‘Summary

Judgment’ without a hearing, thereby refusing or neglecting to hear pertinent

evidence.” (Doc. 1, p. 2). Plaintiff’s Reply reiterates that contention and asserts that

the arbitrator’s“sudden issuance of a Summary Judgment without ever having

conducted a hearing at which the plaintiff could present his evidence” provides

conclusive evidence that the arbitrator refused to hear evidence pertinent and

material to the controversy. (Doc. 18, p. 1). Plaintiff argues that had the arbitrator

conducted a hearing, he could have presented “significant evidence in the form of

documents,” could have “readily arranged for adverse witnesses to be interviewed

by telephone,” and could have summoned local witnesses to testify at a hearing. 

(Id.). Plaintiff further asserts that after the arbitrator was selected, the defendant’s

attorney “admitted to having an acquaintance with the Arbitrator as a reuslt of his

office being located in the same building as the Arbitrator’s office,” and that plaintiff

and his then-attorney found this to be an “item . . of interest.” (Doc. 18, p. 1). 

Plaintiff states that he “cannot know the extent nor closeness of this relationship,

but does assert that had this been made known in advance of selecting the

Arbitrator, we would not have agreed to use of this Arbitrator.” (Id.). Finally, in

response to this court’s Order and Notice, plaintiff has submitted an Affidavit and

supporting documents. (Doc. 20). This evidence goes not to the conduct of the

arbitrator, but to the merits of plaintiff’s underlying claim that the defendant

breached an employment contract with plaintiff and terminated him without

sufficient reason.

To the extent plaintiff attacks the arbitration award on the grounds that the

arbitratorwasguiltyof misconduct because she used a summaryprocedure, plaintiff

fails to state a plaubile basis to vacate the arbitration award. Courts that have

addressed this argument have held that summary judgment is permissible in

arbitration. See Scott, 141 F.3d at 1017 (“[T]he FAA permits arbitration to proceed

Case No: 5:10cv86/RS/MD
Page 8 of 10

with only a summary hearing and with restricted inquiry into factual issues. The

arbitrator need only give each party the opportunity to present its arguments and

evidence.”) (internal quotation marks and citation omitted); Campbell v. American

Family Life Assurance Co. of Columbus, Inc., 613 F.Supp.2d 1114 (D. Minn. 2009)

(rejecting the plaintiff’s “blanket assertion” that summary judgment in arbitration

governed by the FAA and the American Arbitration Association’s Rules is

impermissible); Sherrock Bros., Inc. v. DaimlerChrysler Motors Co., LLC, 260 Fed.

Appx. 497, 502 (3 Cir. 2008) (“We will decline to find the arbitrators’ decision to rd

grant summary judgment irrational where they concluded no disputed facts were

present and the disposition was based on legal doctrines that were resolved on

written submission.”); see also Am. Arbitration Ass’n Employment Arbitration Rule

27 (effective November 1, 2009) (The arbitrator may allow the filing of a dispositive

motion if the arbitrator determines that the moving party has shown substantial

cause that the motion is likely to succeed and dispose of or narrow the issues in the

case.”) (available at http://www.adr.org/sp.asp?id=32904). 

Moreover, the record demonstrates that plaintiff was provided notice of the

summary proceeding and did not object, and that he was also provided notice of

defendant’s motion for summary judgment and the opportunity to present 

arguments and evidence in response to that motion. Specifically, the scheduling

order issued in the arbitration proceeding advised the parties that dispositive

motions were permitted. (Doc. 14, Ex. B). The defendant filed a dispositive motion

– a motion for summary judgment – within the deadline imposed by the scheduling

order. (Doc. 14, Ex. A). The defendant submitted evidence in support of its motion,

including documentary evidence, deposition transcript excerpts and an affidavit of

plaintiff’s supervisor. (Id., Ex. A, p. 1). Plaintiff had the opportunity to, and did file

a response, but he submitted no documents or other evidence (such as affidavits of

witnesses) to the arbitrator. (Id., p. 2). In an abundance of caution and to “confirm

that she had reviewed any applicable materials,” the arbitrator supplemented the

Case No: 5:10cv86/RS/MD
Page 9 of 10

record to include two documents which one or both of the parties referenced in their

submissions but failed to attach. (Id.). The arbitrator expressly noted in her Opinion

that plaintiff “provided the Arbitrator with no testimony, documents or any other

evidentiary material supporting his position in an attempt to establish a genuine

issue of material fact for hearing.” (Id.). Thus, it is evident that plaintiff knew a

dispositive motion could be filed prior to the final arbitration hearing; that plaintiff

was given notice of defendant’s motion for summary judgment and an opportunity

to present arguments and evidence in response; and that plaintiff’s response was

considered by the arbitrator. Plaintiff does not assert that he attempted to submit 

additional evidence (such as the documents and witness affidavits he now

references), but was precluded from doing so by the arbitrator. In light of the

foregoing, the court finds that plaintiff has not met his burden of setting forth a

sufficient basis under 9 U.S.C. § 10(a)(3) to vacate the arbitration award. Therefore,

this aspect of plaintiff’s Motion to Vacate should be denied.

For purposes of thoroughness, the court will address plaintiff’s assertion that

the arbitrator was “acquainted”with the defendant’s attorney by virtue of her office

being in the same building as his. Plaintiff does not expressly state an allegation of

partiality under 9 U.S.C. § 10(a)(2) based on this “acquaintance.” Even if he did seek

relief under that subsection, he has not alleged a sufficient basis to support that

claim for relief. 

“[A]n arbitration award may be vacated due to the ‘evident partiality’ of an

arbitrator only when either (1) an actual conflict exists, or (2) the arbitrator knows of,

but fails to disclose, information which would lead a reasonable person to believe

that a potential conflict exists.” Gianelli Money Purchase Plan & Trust v. ADM

Investor Servs., Inc., 146 F.3d 1309, 1312 (11 Cir. 1998) (citing Lifecare Int’l, Inc. v. th

CD Med., Inc., 68 F.3d 429, 433 (11 Cir. 1995), modified on other grounds, 85 F.3d th

519 (11 Cir. 1996), and Middlesex Mut. Ins. Co. v. Levine, 675 F.2d 1197, 1202 (11 th th

Cir. 1982)). The partymoving to vacate the arbitration award “must present evidence

Case No: 5:10cv86/RS/MD
Page 10 of 10

that would support a ‘reasonable impression of partiality’ on the arbitrator’s behalf.” 

Scott, 141 F.3d at 1015 (citing Lifecare, 68 F.3d at 433). The assertion of partiality

must be “direct, definite and capable of demonstration rather than remote, uncertain

and speculative.” Levine, 675 F.2d at 1202 (citation omitted). “[S]tanding alone, the

fact that an arbitrator . . . had previous contacts with counsel for one of the parties

does not suggest evident partiality.” University Commons-Urbana, Ltd. v. Universal

Constructors, Inc., 304 F.3d 1331, 1340 (11 Cir. 2002). th

The plaintiff’s assertion in this case is far from being “direct, definite and

capable of demonstration.” Indeed, plaintiff admits he has no indication whatsoever

that the arbitrator’s relationship with the defendant’s attorney was anything other

than as described – a mere knowledge of one another due to their offices being in

the same building. (Doc. 18, p. 1). Because plaintiff’s assertion amounts to

precisely the type of vague, remote, and speculative charge that cannot justify

vacating an arbitration award, this aspect of plaintiff’s Motion should be denied. 

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s Complaint, construed as a Motion to Vacate the arbitrator’s

January 25, 2010 award (doc. 1) be DENIED, and this case DISMISSED.

2. That the clerk be directed to close the file. 

At Pensacola, Florida this 20 day of September, 2010.

th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. A copy of objections shall

be served upon all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11 Cir. 1988). th

Case No: 5:10cv86/RS/MD