United States District Court, D. Hawaii
ORDER (1) GRANTING IN PART AND DENYING IN PART MOTION
TO CONFIRM IN PART AND MODIFY IN PART FINAL AWARD OF
ARBITRATOR DATED APRIL 1, 2019, AND (2) CONFIRMING AWARD OF
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
April 17, 2019, Plaintiff American Contractors Indemnity
Company (“ACIC” or “Plaintiff”) filed
the pending motion to confirm in part and modify in part
final award of arbitrator dated April 1, 2019 (“the
motion”), pursuant to Sections 9 and 11 of Title 9 of
the U.S. Code. Dkt. No. 51. Because no party provides a valid
legal basis for the Court to do anything other than confirm
the arbitration award in its entirety, the motion is granted
to the extent it seeks confirmation of the award, but denied
to the extent it seeks modification of the same. As a result,
this Court confirms the arbitration award in its entirety
February 28, 2017, ACIC initiated this action by filing a
complaint against Defendants Frank M. Fernandez and Janis H.
Fernandez (collectively, “Defendants”), alleging
that Defendants had breached several contracts between the
parties when they failed to indemnify ACIC with respect to
various bail bonds for which ACIC was the surety. Dkt. No. 1.
default against Defendants was set aside, Dkt. No. 30,
Defendants, proceeding pro se, each filed an answer and
counterclaims against ACIC, Dkt. Nos. 35-36. Among other
things, Defendants asserted that ACIC had failed to mitigate
damages in connection with a bail bond provided in a State
criminal case involving non-party Dietrich Washington
(“the Washington Case”).
November 6, 2017, ACIC filed a motion to stay this case
pending arbitration (“the motion to stay”). Dkt.
No. 41. On January 9, 2018, the parties entered a stipulation
agreeing to stay this case so that they could resolve their
disputes through arbitration (“the stipulation”).
Dkt. No. 47. The stipulation provided that the arbitration
award would be deemed binding, and could be confirmed, in
this case. The stipulation further provided that the
arbitration would be conducted through Dispute Prevention
& Resolution, Inc. (“DPR”).
April 17, 2019, ACIC filed the pending motion. Attached
thereto is a Final Award of Arbitrator, dated April 1, 2019
(“the Arbitration Award”). Dkt. No. 51-3. The
Arbitration Award provides that the arbitrator found for ACIC
in the principal amount of $398, 378.06. ACIC was also
awarded $42, 387.50 in attorney's fees and $544.02 in
costs. In addition, ACIC was ordered “to attempt to
pursue recovery of all forfeitures incurred in the Dietrick
[sic] Washington bail forfeiture within ninety (90)
days of the date of [the Arbitration Award].” The
Arbitration Award provided that, to the extent there was any
reimbursement from the Washington Case, that amount, less
reasonable fees and costs incurred, would be credited against
the principal amount awarded to ACIC. The Arbitration Award
further provided that, if ACIC failed to “initiate the
required proceeding, ” Defendants would be entitled to
a $250, 000 credit. Finally, the Arbitration Award provided
that the fees and costs of the arbitrator would be shared
equally by the parties and paid as directed by DPR.
hearing was scheduled to take place on May 31, 2019 with
respect to the motion. Dkt. No. 52. On May 10, 2019,
Defendants filed a response to the motion. Dkt. No. 54. ACIC
did not file a reply until May 22, 2019. Dkt. No.
On that same day, the Court vacated the May 31, 2019 hearing,
pursuant to Local Rule 7.2(d). Dkt. No. 56.
court's review of an arbitration award is limited by the
Federal Arbitration Act (FAA). Biller v. Toyota Motor
Corp., 668 F.3d 655, 661-662 (9th Cir. 2012). Pursuant
to the FAA, a court must grant an order confirming the
arbitration award “unless the award is vacated,
modified, or corrected as prescribed in sections 10 and
11….” 9 U.S.C. § 9.
while ACIC asks this Court to confirm in part the Arbitration
Award, ACIC also asks the Court to modify the award in part.
Dkt. No. 51-1 at 1. Pursuant to the FAA, a court may only
modify an arbitration award on the following grounds:
(a) Where there was an evident material miscalculation of
figures or an evident material mistake in the description of
any person, thing, or property referred to in the award.
(b) Where the arbitrators have awarded upon a matter not
submitted to them, unless it is a matter not affecting the
merits of the ...