United States District Court, D. Connecticut
REBECCA M. MURILLO, Plaintiff,
A BETTER WAY WHOLESALE AUTOS, INC and WESTLAKE SERVICES, LLC, Defendants.
MEMORANDUM OF DECISION GRANTING MOTION TO CONFIRM
ARBITRATION AWARD [DKT. 40], DENYING MOTION TO VACATE
ARBITRATION AWARD [DKT. 43], DENYING MOTION TO EXCLUDE [DKT.
51], AND DENYING MOTION TO STRIKE [DKT. 56]
VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE
November 9, 2017, Plaintiff Rebecca Murillo filed a Complaint
against Defendants A Better Way Wholesale Autos, Inc.
(“ABW”) and Westlake Services, LLC
(“Westlake”) alleging violations of the Truth in
Lending Act, 15 U.S.C. § 1601 et seq.
(“TILA”), the Connecticut Unfair Trade Practices
Act, Conn. Gen. Stat. § 42-110a et seq.
(“CUTPA”), the Connecticut Retail Installment
Sales Financing Act, Conn. Gen. Stat. § 36a-785 et
seq. (“RISFA”), and the Uniform Commercial
Code (“UCC”). See generally [Dkt. 1
(Compl.)]. Plaintiff's allegations stem from her purchase
and finance agreement through ABW and with Westlake for a
2008 Lexus IS250 (the “Vehicle”) in February
2017. Id. The Retail Purchase Order, governing
Plaintiff's dispute with ABW, and the Retail Installment
Contract, relating to Plaintiff's dispute with Westlake,
each included arbitration provisions. Defendants sought to
compel arbitration pursuant to those provisions and Plaintiff
agreed. See [Dkt. 33 (ABW Stay & Compel
Arbitration Mot.); Dkt. 34 (Plf. Resp. ABW Arbitration Mot.);
Dkt. 37 (Westlake Stay Mot.); Dkt. 38 (Plf. Resp. Westlake
Stay Mot.)]. On May 15, 2018, the Court granted ABW's
motion to stay and arbitrate, [Dkt. 35 (5/15/18 Order)], and
on August 30, 2018 the Court granted Westlake's motion to
stay and arbitrate and closed the case without prejudice to
any party moving to reopen after the conclusion of the
arbitration process, [Dkt. 39 (8/30/18 Order)].
parties agreed to arbitrate their disputes before the
American Dispute Resolution Center (“ADR”) as a
desk arbitration and under the American Arbitration
Association (“AAA”) rules. See [Dkt. 44
at 1-2]. Both sides made submissions to the arbitrator,
following multiple missed deadlines by Defendants, and the
arbitrator considered the claims on the merits. See
Id. at 1-2.
the Court now are Plaintiff's Motion to Confirm the
Arbitration Award pursuant to § 9 of the Federal
Arbitration Act, 9 U.S.C. § 9 (“FAA”), [Dkt.
40], and Defendants' Motion to Vacate the Arbitration
Award pursuant to § 10(a)(4) of the FAA, [Dkt. 43]. The
Court also considers in this decision Defendants' Motion
to Exclude [Dkt. 51] and Plaintiff's Motion to Strike
[Dkt. 56], which arise out of the motions to confirm and
vacate the arbitration award.
ABW's Motion to Exclude & Plaintiff's Motion
Motion to Exclude
ABW moved to exclude from the Court's consideration
certain facts asserted by Plaintiff in her submissions to the
arbitrator and her filings with the Court because they are
inaccurate. [Dkt. 51 (Mot. to Exclude)]. Specifically, ABW
seeks to exclude Plaintiff's assertions that she provided
ABW her W-2 on February 7, 2018; that the second deal offered
to Plaintiff was not as good as the first deal; that any of
the financing was conditional; and that Plaintiff was unaware
that she was purchasing an oil change contract, a tire and
wheel contract, or a service contract. Id. at 1-2.
ABW contends that Plaintiff included these assertions in her
September 27, 2018 Statement and October 1, 2019 Supplemental
Statement provided to the arbitrator and now in her
submissions to this Court and that they formed the basis of
the arbitrator's decision. Id. at 2. ABW argues
that the statements are inaccurate and that the Court should
not rely on them. Id.
discussion infra regarding review of an arbitration
decision makes clear, a court may not question the factual
findings of an arbitrator or otherwise weigh the evidence the
arbitrator evaluated in coming to his/her conclusions.
Westerbeke, 304 F.3d at 214. Despite this, ABW now,
and in its Motion to Vacate, makes arguments regarding
interpretation of the facts and weighing of the evidence in
the hope that this Court might find differently than the
arbitrator. ABW's motion to exclude is essentially
another attempt by ABW to present factual arguments and
contest those made by Plaintiff in her submissions to the
arbitrator. This is not the role of a court in reviewing an
arbitration award, as discussed below.
motion does not provide a standard governing a “motion
to exclude.” Motions to exclude or suppress evidence
are pre-trial motions requesting the court exclude a piece of
evidence from an upcoming trial on admissibility or other
evidentiary grounds. Alternatively, Federal Rule of Civil
Procedure 12(f) provides for motions to strike “from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
ABW asks not that the Court withhold information from a jury
or a pleading but that the Court exclude from its
consideration information submitted by Plaintiff with her
briefing on her motion to affirm and Defendants' motion
to vacate the arbitration award. Such a motion is not proper.
If a party wishes to argue that an asserted fact is not
supported by the evidence, that party may do so in its
briefing on the motion. Cf. O'Brien v.
Wisniewski, No. 3:1 CV 120 (CSH), 2012 WL 1118076, at
*3-4 (D. Conn. Apr. 3, 2012) (explaining that motions to
strike are inappropriate in the summary judgment context
because the court reviews and relies upon only admissible
evidence); Ricci v. Destefano, No. 3:04 CV 1109
(JBA), 2006 WL 2666081, at *2 (D. Conn. Sep. 15, 2006)
(explaining that a party should make any arguments that a
fact is not supported by evidence or that evidence is not
admissible in its summary judgment filings, not in a separate
motion). ABW could have done just that in its briefing on
Defendants' motion to vacate and Plaintiff's motion
to affirm the arbitration award. It does not get another
chance to do so via unnecessary additional motions practice.
Accordingly, ABW's motion to exclude is DENIED.
Motion to Strike
reply in support of its motion to exclude, ABW suggests, for
the first time, that Plaintiff's inaccurate statements
“rise to the level of such significance as to warrant
vacating the Arbitrator's Award in its entirety on the
basis of fraud.” [Dkt. 55 at 2]. Plaintiff moves to
strike ABW's reply because it raises new arguments not
included in ABW's motion to exclude, not to mention its
motion to vacate the arbitration award, or responsive to
arguments made by Plaintiff in her opposition to the motion
to exclude. [Dkt. 56 (Mot. to Strike) at 1-2].
noted above, Rule 12(f) allows a court to strike only
pleadings. See Fed. R. Civ. P. 12(f). “[A]
reply memorandum is not a pleading.”
O'Brien, 2012 WL 1118076, at *3 (quoting
Marshall v. Webster Bank, N.A., No. 3:10-cv-908
(JCH), 2011 WL 219693, at *12 (D. Conn. Jan. 12, 2011). Thus,
the Court cannot properly strike ABW's reply brief or
arguments within it and Plaintiff's motion to strike is
it is well established that “[a]rguments may not be
made for the first time in a reply brief.” Knipe v.
Skinner, 999 F.2d 708, 711 (2d Cir. 1993). “New
arguments first raised in reply papers in support of a motion
will not be considered.” Domino Media, Inc. v.
Kranis, 9 F.Supp.2d 374, 387 (S.D.N.Y. 1998).
Accordingly, the Court did not consider arguments made by ABW
for the first time in its reply in support of its motion to
exclude which are not made in response to Plaintiff's
opposition to the motion to exclude.
Motion to Affirm & Motion to Vacate Arbitration
of the arbitration award in this case is governed by the FAA.
See 9 U.S.C. § I et seq. “It is
well-settled that judicial review of an arbitration award is
narrowly limited, ” Barbier v. Shearson Lehman
Hutton Inc., 948 F.2d 117, 120 (2d Cir. 1991), and a
district court “must grant” a motion to confirm
an award “unless the award is vacated, modified, or
corrected as prescribed in sections 10 and 11, ” 9
U.S.C. § 9; accord D.H. Blair & Co., Inc. v.
Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006). Section 10
of the FAA sets limited grounds on which a court may vacate
an award, including “(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 shown, 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; or (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.
Second Circuit has emphasized the “extremely
limited” role of courts in reviewing arbitration
awards, Wall Street Assoc. L.P. v. Becker Paribas,
Inc., 27 F.3d 845, 849 (2d Cir. 1994). A court may not
supplant its judgment for that of, or second-guess an
arbitrator. “[A]n arbitration award should be enforced,
despite a court's disagreement with it on the merits, if
there is a barely colorable justification for the outcome
reached.” Banco de Seguros del Estado v. Mut.
Marine Office, Inc., 344 F.3d 255, 260 (2d Cir. 2003)
(quoting Landy Michaels Realty Corp. v. Local 32B-32J,
Serv. Emps. Int'l Union, AFL-CIO, 954 F.2d 794, 797
(2d Cir. 1992)) (internal brackets and quotation marks
omitted). “A party moving to vacate an arbitration
award has the burden of proof, and the showing required to
avoid confirmation is very high.” Gottdiener,
462 F.3d at 110.
move for vacatur arguing that the arbitrator exceeded his
powers in that the award is completely irrational,
see § 10(a)(4), and that the arbitrator's
award is in manifest disregard of the law. [Dkt. 44 at 6].
The Second Circuit has laid out separate standards for
assessing vacatur under § 10(a)(4) for exceeding powers
versus manifest disregard of the law. In 2008, the Supreme
Court “placed the proper scope of the manifest
disregard doctrine into some doubt” with its decision
in Hall Street Associates, LLC v. Mattel, Inc., 552
U.S. 576 (2008). In Hall Street, the Supreme Court
held that the FAA provided the sole statutory grounds for
review of arbitration decision. 552 U.S. at 588. The Second
Circuit read Hall Street as
“reconceptualiz[ing]” manifest disregard
“as a judicial gloss on the specific grounds for
vacatur” of arbitration awards under 9 U.S.C. §
10. See Stolt-Nielsen SA v. AnimalFeeds Int'l
Corp., 548 F.3d 85, 91 (2d Cir. 2008), rev'd and
remanded on different grounds, 559 U.S. 662 (2010);
see also Schwartz v. Merrill Lynch & Co., 665
F.3d 444, 451-52 (2d Cir. 2011). “So interpreted, [the
Second Circuit] concluded that manifest disregard remains a
valid ground for vacating arbitration ...