United States District Court, D. South Dakota, Northern Division
PRIMROSE RETIREMENT COMMUNITIES, L.L.C. and JEFFERSON CITY RETIREMENT, L.L.C, Plaintiffs,
OMNI CONSTRUCTION COMPANY, INC., Defendant.
OPINION AND ORDER CONFIRMING ARBITRATION
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
a diversity case in which Plaintiffs Primrose Retirement
Communities, LLC and Jefferson City Retirement, LLC
(collectively "Primrose") commenced this action on
September 7, 2018, by a complaint styled Motion to Confirm
Arbitration Award and Enter Judgment Thereon. Doc. 1.
Attached to the motion were copies of the parties'
contract containing their arbitration agreement, Doc. 1-1,
and the Final Award of Arbitrators dated August 30, 2018,
Doc. 1-2. Primrose filed an Affidavit of Ronald J. Hall
verifying the matters in the motion and exhibits, Doc. 4, and
a brief in support of the motion, Doc. 5. The Affidavit of
Service reflects that the motion, exhibits, affidavit and
brief were duly served on Defendant Omni Construction
Company, Inc. (Omni) on September 12, 2018 by service upon CT
Corporation as Omni's statutory agent for service of
process in Ohio. Doc. 8. Pursuant to D.S.D. Civ. LR 7.1 .B,
Omni was required to serve and file a responsive brief on or
before 21 calendar days after service of the motion and
brief. More than 21 calendar days have passed since service,
but Omni has failed to appear in this action or file and
serve any responsive brief or other resistance to
Primrose's Motion. For the reasons explained below, this
Court confirms the arbitration award in favor of Primrose.
Summary of Material Facts
parties entered into a written Form of Agreement between
Primrose and Contractor for a Stipulated Sum and General
Conditions of Contract for Construction dated December 3,
2013 (the Contract) for the construction of a 76-unit
independent and assisted living facility and a four-building,
eight-unit independent living villas in Jefferson City,
Missouri. Doc. 1-1. The Contract contains a valid and
enforceable agreement for arbitration of claims arising out
of or relating to the Contract. Section 4.6.2 of the General
Conditions to the Contract provides as follows:
Claims not resolved by mediation shall be decided by
arbitration which, unless the parties mutually agree
otherwise, shall be in accordance with the Construction
Industry Arbitration Rules of the American Arbitration
Association currently in effect. The agreed hearing locale of
any arbitration proceedings shall be at Aberdeen, South
Dakota unless the parties mutually agree otherwise.
1-1 at 26. Section 4.6.6 of the General Conditions to the
parties' Contract makes any arbitration award final,
allows judgment to be entered thereon, and selects South
Dakota state or federal court for any action to confirm or
challenge any arbitration award. Doc. 1-1 at 27.
commenced arbitration by filing a Demand for Arbitration with
the American Arbitration Association ("AAA") and
serving the Demand on Primrose. Primrose filed an Answering
Statement and Counterclaim against Omni. The AAA commenced
administration of the arbitration under the Construction
Industry Arbitration Rules as AAA Case No. 01-14-0002- 1753.
In accordance with the parties' arbitration agreement and
the Construction Industry Arbitration Rules, the AAA
appointed three people-William M. Beadie, a construction,
contracts, and construction surety lawyer at Moore, Costello
& Hart, P.L.L.P; James Duffy O'Connor, an attorney
and the chair of the Construction Law Group of Maslon Edelman
Borman & Brand, LLP; and John G. Patterson, an attorney
in the construction law practice of Fredrikson & Byron,
P.A.- to serve as Arbitrators. They accepted appointment and
executed their oaths as arbitrators according to the AAA
arbitration hearing of the parties' disputes was
conducted by the Arbitrators on August 2, 2018. On August 30,
2018 the Arbitrators rendered a detailed seven-page Final
Award of Arbitrators in favor of Primrose and against Omni.
the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et
seq.. the district court "'must' confirm an
arbitration award 'unless' it is vacated, modified,
or corrected 'as prescribed'" in the FAA.
Hall Street Assocs.. L.L.C. v. Mattel. Inc., 552
U.S. 576, 582 (2008) (quoting 9 U.S.C. § 9). An
arbitration award can be vacated only if (1) the award
"was procured by corruption, fraud, or undue
means"; (2) the arbitrator was impartial or corrupt; (3)
the arbitrator was "guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown," or
refuses to hear certain evidence, or otherwise prejudices the
rights of a party; or (4) the arbitrator exceeded his own
power. 9 U.S.C. § 10. These four grounds constitute the
exclusive justifications for vacating an award. Medicine
Shoppe Int'l Inc. v. Turner Invs., Inc., 614 F.3d
485, 489 (8th Cir. 2010).
district court "affords the arbitrator's decisions
an extraordinary level of deference and confirms so long as
the arbitrator is even arguably construing or applying the
contract and acting within the scope of his authority."
Wells Fargo Bank. N.A. v. WMN e-PIN. LLC, 653 F.3d
702, 710 (8th Cir. 2011) (quoting Crawford Group. Inc. v.
Holekamp, 543 F.3d 971, 976 (8th Cir. 2008)).
"Courts have no authority to reconsider the merits of an
arbitration award, even when the award rests on factual
errors or on a misinterpretation of the underlying
contract." Medicine Shoppe, 614 F.3d
at 488. Because this Court lacks authority to review the
merits of the arbitration award, review is limited to whether
any grounds to vacate or modify exist under 9 U.S.C. §
10 or §11.
case, Omni has failed to appear in this action, respond to or
oppose Primrose's motion, or move to vacate, modify or
correct the award as prescribed in 9 U.S.C. § 10 or
§ 11. Therefore, the FAA and case authority directs that
this Court affirm the award. 9 U.S.C. §§ 1-11.
reasons explained above, it is hereby ORDERED that
Primrose's Motion to Confirm ...