13 F.4th 1232
11th Cir.2021Background
- Plaintiffs McLaurin and Fitzgerald received a $2,767,900 arbitration award against Terminix after alleging failed termite inspections and repairs.
- Two days after the award, plaintiffs filed a § 9 motion to confirm the award in district court; Terminix answered and said it would file a motion to vacate by a later date but did not include substantive grounds.
- The district court set a deadline for “any opposition” to the motion to confirm (September 25) but did not separately set a deadline for a § 10/11 motion to vacate, modify, or correct.
- Terminix filed a brief arguing only that confirmation was premature because the three‑month vacatur period had not elapsed, then waited until November 12 to file a substantive motion to vacate.
- The district court granted the motion to confirm as substantively unopposed and struck Terminix’s later motion to vacate as untimely; Terminix appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a court may grant a § 9 motion to confirm filed within the § 12 three‑month vacatur window | Plaintiffs: § 9 allows confirmation at any time within one year; no mandatory stay while § 12 period runs | Terminix: confirmation is premature; court must give three months to file a motion to vacate before confirming | Court: § 9 permits a motion to confirm within a year; § 12 does not impose a mandatory stay—confirmation is not barred simply because the § 12 period has not expired |
| Whether the district court abused its discretion by striking/declining to rule on a later‑filed § 10 motion to vacate after a scheduling deadline for “any opposition” | Plaintiffs: Terminix waived § 10/11 defenses by failing to raise them by the court’s deadline; later motion was moot once confirmation was granted unopposed | Terminix: the court cannot shorten the § 12 statutory period; its later motion to vacate preserved its rights and should be decided on the merits | Court: enforcing its scheduling order was not an abuse of discretion; Terminix could and should have raised § 10/11 grounds by the deadline and its late motion was properly struck (and effectively moot under these circumstances) |
| Whether appellate sanctions under Fed. R. App. P. 38 were appropriate against Terminix | Plaintiffs: appeal is frivolous given established law | Terminix: appeal raises a question of first impression | Court: Denied sanctions—appeal was not "utterly devoid of merit" because the issue was one of first impression |
Key Cases Cited
- Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008) (limits judicial review to statutory vacatur/modification grounds under FAA)
- Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313 (11th Cir. 2010) (presumption in favor of confirming arbitration awards; defenses limited to §§10–11)
- Cullen v. Paine, Webber, Jackson & Curtis, Inc., 863 F.2d 851 (11th Cir. 1989) (failure to move to vacate within three months bars raising those grounds in opposition to confirmation)
- Riccard v. Prudential Ins. Co., 307 F.3d 1277 (11th Cir. 2002) (confirmation is typically routine/summary)
- The Hartbridge, 57 F.2d 672 (2d Cir. 1932) (party may move to confirm within three months; opposing party may object on vacatur grounds but confirmation is not per se premature)
- Booth v. Hume Publ’g, Inc., 902 F.2d 925 (11th Cir. 1990) (defenses to confirmation are limited to statutory vacatur/modification grounds)
- Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292 (11th Cir. 2011) (district courts have broad authority to control their dockets and enforce scheduling orders)
- Parker v. Am. Traffic Sols., Inc., 835 F.3d 1363 (11th Cir. 2016) (standard for imposing appellate sanctions under Rule 38)