United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm, United States District Judge
RONCO Consulting Corporation (“RONCO”) seeks to
vacate an arbitration award issued in favor of Defendant
Leading Edge Ventures, LLC (“Leading Edge”), and
has moved for summary judgment in its favor. Leading Edge
seeks to dismiss RONCO's complaint and to confirm the
same award. Because RONCO did not serve timely notice of its
application to vacate the award on Leading Edge, I must grant
Leading Edge's motion to dismiss as well as its petition
to confirm the award, and I will deny RONCO's summary
judgment motion as moot.
which had been awarded “a prime contract to perform
security vetting services at the Kandahar Air Base in
Afghanistan, ” entered into a subcontract
(“Agreement”) with Leading Edge. Compl. 1, ECF
No. 1; see Agr., Compl. Ex. A, ECF No. 1-2. Pursuant
to the Agreement, Leading Edge had to “provide
‘written proof of the ability to assign fully cleared
personnel' prior to award”; to do so,
“Leading Edge had to obtain a ‘Facility
Clearance'” from the United States Department of
Defense's Defense Security Services (“DSS”)
division. Compl. 1; Agr. § 2.2. Acting as
sponsor for Leading Edge (as it was obligated to do), RONCO
submitted three Facility Clearance applications to DSS, but
did not obtain the clearance because it failed to provide a
required form (a “DD-254 form”), which RONCO
claims it “could not provide.” Compl. 2.
Consequently, RONCO terminated the Agreement.
Agreement also included an arbitration provision, Agr. §
10.4, pursuant to which Leading Edge sought to arbitrate the
termination. Compl. 2. RONCO agreed to arbitration, while
maintaining that “the merits of DSS's decision to
reject the [Facility Clearance] application cannot be
questioned in the arbitration proceeding.” Id.
The arbitrator ruled in Leading Edge's favor, finding
that “the ‘DSS Specialists were in error' in
demanding the DD 254 form” and that “RONCO should
have given Leading Edge the opportunity to ‘disabuse
DSS' from insisting on a DD 254.” Id. He
issued a Final Award in Washington, District of Columbia, on
November 3, 2016. Final Award, Compl. Ex. C, ECF No. 1-4
(incorporating April 7, 2016 Partial Final Award, Compl. Ex.
B, ECF No. 1-3, by reference).
February 1, 2017, RONCO filed a complaint in this Court,
seeking to vacate the arbitration award. Leading Edge filed a
timely Petition to Confirm Arbitration Award as part of this
same litigation. ECF No. 21; see Ans. to Pet. 2, ECF
No. 22 (acknowledging that “Leading Edge applied to the
Court for an order confirming the award within one year after
the award is made as contemplated by 9 U.S.C. §
9”). Additionally, Leading Edge filed an Amended Motion
to Dismiss Complaint to Vacate, ECF No. 23, in which it also
sought confirmation of the arbitration award. Its primary
argument is that RONCO failed to properly or timely serve it
with notice of its Complaint to Vacate pursuant to the
requirements of the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 12, because it did not
effect service by U.S. Marshal, and it did not serve the
Complaint (or notice of it) within three months of the
arbitration award. Def.'s Mem. 5, ECF No. 23-1.
does not claim that it served notice by U.S. Marshal or
within three months of the issuance of the Final Award. Yet,
it believes that its Complaint to Vacate is properly before
the Court because it “commenced the action within three
months after the final award was filed or delivered”
and it “complied with the request to waive service of
process provision in Rule 4 and then served Defendant within
90 days as now required by Rule 4.” Pl.'s Mot. Sum.
J. 1, ECF No. 26. RONCO has filed a Motion for Summary
Judgment, along with a Memorandum in Support of its motion
and in response to Leading Edge's Amended Motion to
Dismiss, ECF No. 27. Leading Edge filed a Reply, ECF No. 28,
with regard to both its Amended Motion to Dismiss and
RONCO's summary judgment motion. RONCO has not filed a
reply with regard to its summary judgment motion, and the
time for doing so has passed. See Loc. R. 105.6. A
hearing is not necessary. Because RONCO failed to comply with
the notice requirements of the FAA, it is unnecessary for me
to reach its additional arguments attacking the
arbitrator's award. I will grant Leading Edge's
Amended Motion to Dismiss and deny RONCO's Complaint to
Vacate, treated as a motion to vacate, and I will deny its
Motion for Summary Judgment as moot. Additionally, I will
grant Leading Edge's Petition to Confirm Arbitration
to Rule 12(b)(6), RONCO's pleadings are subject to
dismissal if they “fail[ ] to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). A
pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” Fed.R.Civ.P. 8(a)(2), and must state “a
plausible claim for relief, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). That is,
“while a plaintiff does not need to demonstrate in a
complaint that the right to relief is ‘probable, '
the complaint must advance the plaintiff's claim
‘across the line from conceivable to
plausible.'” Gibson v. U.S. Postal Serv.,
No. CCB-13-2959, 2014 WL 2109919, at *1 (D. Md. May 20, 2014)
(quoting Walters v. McMahen, 684 F.3d 435, 439 (4th
Cir. 2012)). Therefore, it must contain factual allegations
that are “enough to raise a right to relief above the
speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, (2007) (internal citations and alterations
omitted). Accordingly, for purposes of considering a motion
to dismiss, this Court accepts the facts alleged in the
Complaint as true. See Aziz v. Alcolac, 658 F.3d
388, 390 (4th Cir. 2011). And, “[a] copy of a written
instrument that is an exhibit to a pleading, ” such as
the Agreement and the Final Award, “is a part of the
pleading for all purposes.” Fed.R.Civ.P. 10(c). I also
will consider the Stipulated Facts that the parties jointly
submitted. See Levin v. United States, No. PX
15-1880, 2017 WL 4023177, at *1 (D. Md. Sept. 13, 2017)
(“These facts are derived from Levin's Complaint
and the parties' joint stipulation of facts, and are
accepted as true for purposes of Defendant's motion to
dismiss.”); Robinson v. Bd. of Ed. of St.
Mary's Cty., 143 F.Supp. 481, 484 (D. Md. 1956)
(“The parties have filed a stipulation of facts and
have agreed that the stipulation and attached exhibits may be
used in whole or in part by any of the parties at the hearing
on the motion to dismiss . . . .”).
parties seek relief pertaining to an arbitration award issued
in Leading Edge's favor, with Leading Edge seeking to
enforce it while RONCO seeks to vacate it. There is an
“emphatic federal policy in favor of arbitral dispute
resolution.” Fakhri v. Marriot Int'l Hotels,
Inc., 201 F.Supp.3d 696, 709-10 (D. Md. 2016) (quoting
Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth,
Inc., 473 U.S. 614, 631 (1985); citing, e.g., ESAB
Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 390 (4th
Cir. 2012)), appeal dismissed, No. 16-2061, 2016 WL
9724329 (4th Cir. Oct. 21, 2016). Consequently,
“[j]udicial review of an arbitration award in federal
court is ‘substantially circumscribed.'”
Three S Del., Inc. v. DataQuick Info. Sys., Inc.,
492 F.3d 520, 527 (4th Cir. 2007) (quoting Patten v.
Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir.
2006)). Indeed, given that “full scrutiny of such
awards would frustrate the purpose of having arbitration at
all-the quick resolution of disputes and the avoidance of the
expense and delay associated with litigation, ” a
court's review of an arbitration award “is among
the narrowest known at law.” Id. (quoting
Apex Plumbing Supply, Inc. v. U.S. Supply Co., 142
F.3d 188, 193 (4th Cir. 1998)).
filed its complaint in this Court pursuant to Chapter 2 of
the Federal Arbitration Act (“FAA”), 9 U.S.C.
§§ 201-08. Compl. ¶ 12. Chapter 2 implements
the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the “Convention”). The
Convention covers arbitration agreements and awards arising
out of commercial relationships where one party is not a
citizen of the United States, as well as where both parties
are U.S. citizens and, as here, the agreement or award
“envisages performance or enforcement abroad.” 9
U.S.C. § 202. It confers jurisdiction on federal
district courts for actions “falling under the
Convention, ” which are “deemed to arise under
the laws and treaties of the United States.” 9 U.S.C.
§ 203. And, it adopts the provisions of Chapter 1 of the
FAA, 9 U.S.C. §§ 1-12, “to the extent that
chapter is not in conflict with . . . chapter  or the
Convention as ratified by the United States.” 9 U.S.C.
§ 208; see also Yusuf Ahmed Alghanim & Sons v.
Toys “R” Us, Inc., 126 F.3d 15, 21 (2d Cir.
1997) (concluding that the Convention “allow[s] a court
in the country under whose law the arbitration was conducted
to apply domestic arbitral law, in this case the FAA, to a
motion to set aside or vacate that arbitral award”).
9 permits the court to confirm an arbitration award, while
Section 10 directs the court to vacate an arbitration award
under limited circumstances. 9 U.S.C. §§ 9, 10.
Section 9 provides:
If the parties in their agreement have agreed that a judgment
of the court shall be entered upon the award made pursuant to
the arbitration, and shall specify the court, then at any
time within one year after the award is made any party to the
arbitration may apply to the court so specified for an order
confirming the award, and thereupon the court must grant such
an order unless the award is vacated, modified, or corrected
as prescribed in sections 10 and 11 of this title. If no
court is specified in the agreement of the parties, then such
application may be made to the United States court in and for
the district within which such award was made.
9 U.S.C. § 9. Section 10 states:
[T]he United States court in and for the district wherein the
award was made may make an order vacating the award upon the
application of any party to the arbitration--
(1) where the award was procured by corruption, fraud, or
(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 ...