United States District Court, D. Maryland, Southern Division
THOMAS W. HOWES, Plaintiff,
NEW YORK LIFE INSURANCE COMPANY, Defendant.
J. HAZEL UNITED STATES DISTRICT JUDGE.
Thomas Howes seeks to vacate an arbitration award issued in
favor of Defendants New York Life Insurance Company, LLC and
NYLife Securities LLC (collectively, “New York
Life”). ECF No. 1. Defendants moved to dismiss
Plaintiff's petition. ECF No. 16. Because Plaintiff did
not serve timely notice of its application to vacate the
award on Defendants, the Court must grant Defendants'
Motion to Dismiss.
January 26, 2018, a panel of Financial Industry Regulatory
Authority (“FINRA”) arbitrators issued Defendants
an Award based on an arbitration held in Washington, D.C. ECF
No. 1 at 2. The Parties were served with the Award on January
29, 2018 via the FINRA portal. See ECF No. 1-5. On
February 12, 2018, Plaintiff filed the instant Motion to
Vacate. ECF No. 1. On March 5, 2018, this Court issued an
order directing the Clerk of Court to prepare and issue a
summons to Plaintiff so that he could effectuate service of
process. ECF No. 3.
Federal Arbitration Act (FAA) requires “[n]otice of a
motion to vacate, modify, or correct an award” to
“be served upon the adverse party or his attorney
within three months after the award is filed or
delivered.” 9 U.S.C. § 12. Additionally, when, as
here, the adverse party is not a resident of the district
where the award issued, notice of the motion “shall be
served by the marshal of any district within which the
adverse party may be found in like manner as other process of
the court.” Id.
to the extent that Federal Rule of Civil Procedure 4 still
governs notice of a motion to vacate an arbitration award,
under Rule 4(h), a corporation must be served either by:
[following the law for serving] a summons . . . in the state
where the district court is located or where service is made,
or by delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service
of process and-if the agent is one authorized by statute and
the statute so requires-by also mailing a copy of each to the
Court's March 5, 2018 order “reminded”
Plaintiff that service of process on corporations should be
made pursuant to Federal Rule of Civil Procedure 4(h), and
provided Plaintiff with contact information for the Maryland
State Department of Assessments and Taxation, through which
Plaintiff could “obtain the name and service address
for the resident agent of Defendant” Id. at 1.
The Court further noted that if “Plaintiff d[id] not
use a private process server, and instead [effected service
by] certified mail, restricted delivery, return receipt
requested, . . . [he] must file with the Clerk the United
States Post Office Acknowledgment as proof of service.”
Id. at 1 n.1. Failure to do so, the Court warned,
risked dismissal of the case. Id. at 2.
failed to comply with the FAA's notice requirements, Rule
4, and the Court's March 5, 2018 order. On March 14,
2018, Plaintiff sent the summons and Motion to Vacate via
certified mail to “New York Life Company” at the
company's corporate address in New York. ECF No. 5-1.
Plaintiff did not address the package to a particular New
York Life agent or employee, nor did he request that the
package be sent via restricted delivery. ECF No. 5. Thus, his
receipt from the U.S. Postal Service gives no indication of
whether the package was served on an individual authorized
“by appointment or by law to receive service of
process.” See id. Rather, he merely addressed
the package to “New York Life Company.”
Id. Additionally, the Plaintiff never served the
Motion to Vacate by marshal as required by the FAA.
on these facts, service was insufficient. See RONCO
Consulting Corp. v. Leading Edge Ventures, LLC, No. CV
PWG-17-305, 2017 WL 6336609 at *7 (D. Md. Dec. 12, 2017)
(granting defendant's motion to dismiss because plaintiff
“never properly served notice of its Complaint to
Vacate in the manner required by the FAA because [plaintiff]
never did so by U.S. Marshal”); Gray v. Allied
Waste Servs. of Wash., No. 11-1612, 2012 WL 2871422 at
*1 (D. Md. July 11, 2012) (deeming service deficient under
federal law when the summons and complaint were sent via
certified mail to a location where defendant's registered
agent was not located and the employee who received the
mailing was not authorized by law to accept service of
Plaintiff never properly served notice of his Motion to
Vacate in the manner required by the FAA or Rule 4 because he
never did so by U.S. Marshal and because he did not serve New
York Life's registered agent. Consequently,
Defendants' Motion ...