was filing in forma pauperis and diligently pursued his complaint, the court of appeals applied the doctrine of equitable tolling. Id. 845 F.2d 1051, slip op. at 6-13.
The Mondy court referred to two circuit cases involving an in forma pauperis party for further support. In Paulk v. United States, 830 F.2d 79, 83 (7th Cir. 1987), the Seventh Circuit held that a 30-day time limit was tolled during the pendency of a petition to proceed in forma pauperis. In Cooper v. Bell, 628 F.2d 1208 (9th Cir. 1980), the Ninth Circuit found that the need for equitable tolling is strongest when a claimant is filing an action for himself at the outset, because he will be "unschooled in the filing procedure" and less articulate about his claim. Id. at 1213 & n. 10.
Plaintiff Sargent acted diligently and therefore, the Court may properly invoke equitable principles to excuse his slight delay. See Baldwin County Welcome Center, supra, at 151. See also, Mondy, supra, 845 F.2d 1051, slip op. at 3, 13. The due diligence exception to 9 U.S.C. § 12 was recognized in Holodnak v. Avco Corp., 381 F. Supp. 191 (D. Conn. 1974), rev'd in part on other grounds, 514 F.2d 285 (2d Cir.), cert. denied, 423 U.S. 892, 46 L. Ed. 2d 123, 96 S. Ct. 188 (1975). In Holodnak, the plaintiff's motion to vacate an arbitrator's award was served three months and one day after the filing of the arbitration award. The district court judge and the magistrate who heard pre-trial motions both denied the defendant's argument that the plaintiff's motion to vacate was time-barred. They emphasized the due diligence of the plaintiff in attempting to perfect service within the time limit and the absence of any prejudice suffered by the defendants as a result of the one-day delay. 381 F. Supp. at 197. The trial court agreed that the circumstances of the service did not represent a bar to the action and it granted plaintiff's motion to vacate the arbitrator's decision.
Plaintiff Sargent's efforts to comply with 9 U.S.C. § 12 would qualify for this exception. Depending upon the interpretation of "filed or delivered," plaintiff's motion was anywhere from eight days late to one day early. The courts dismissing motions for being untimely under 9 U.S.C. § 12 have involved cases where service has been many months or years beyond the three month deadline. See Witt v. Reinholdt & Gardner, supra (Plaintiff filed suit to invalidate an arbitration award more than two years after the arbitration proceeding); Colavito v. Hockmeyer, supra (November 1983 filing was untimely with respect to an October 1982 arbitrator's award); Gas Workers Local No. 80 v. Michigan Consol. Gas Co., 503 F. Supp. 155 (E.D. Mich. 1980) (Proceeding to set aside award was filed eleven months after arbitrator denied request for reconsideration and hence, was untimely); Pizzuto v. Hall's Motor Transit Co., 409 F. Supp. 427 (E.D. Va. 1976) (Complaint filed more than twelve months after arbitration of employment grievance was not timely).
In light of plaintiff's attempt to seek a hearing de novo, his attorney's failure to file a motion to vacate, the plaintiff's pro se status, and his diligent effort to serve his motion within the three month period, along with the different interpretations of "filed or delivered," this Court holds that plaintiff Earnest Sargent's motion to vacate the arbitration award of August 19, 1987, was not time-barred.
Regarding the defendants' argument that this Court exceeded it authority in vacating the arbitrators' award, this Court adheres to its original holding that it should not attempt to enforce an award that is ambiguous, indefinite or irrational. See NF & M Corp. v. United Steelworkers of America, 524 F.2d 756 (3d Cir. 1975) ("If an examination of the record before the arbitrator reveals no support whatever for his determinations, his award must be vacated." Id. at 760). The Court upholds its position that for judicial review to be meaningful, an arbitrator's award cannot be absolutely immune from scrutiny. See Siegel v. Titan Industrial Corp., 779 F.2d 891, 894 (2d Cir. 1985); Olympia & York Florida Equity Corp. v. Gould, 776 F.2d 42, 45-46 (2d Cir. 1985); Cleveland Paper Handlers & Sheet Straighteners Union, No. 11 v. E.W. Scripps Co., 681 F.2d 457, 460 (6th Cir. 1982) (per curiam) Oil Chemical & Atomic Workers Int'l Union v. Rohm & Haas Texas, Inc., 677 F.2d 492, 495 (5th Cir. 1982) (per curiam); Americas Ins. Co. v. Seagull Compania Naviera, S.A., 774 F.2d 64, 67 (2d Cir. 1985); Shearson Loeb Rhoades Inc. v. Much, C.A. No. 81-4225 at 8-9 (N.D. Ill, Jan. 3, 1983). These cases were relied upon in the Court's December 8, 1987 Memorandum Order and further research indicates that they are still good law.
When reviewing arbitration awards it is necessary for a court to understand the calculation methods used by the arbitrators. Siegel, supra, at 894. The Court is not asking too much in seeking a clarification of the illusionary and ambiguous mathematical calculation utilized in arriving at plaintiffs' $ 46,000 award. See Douglas Aircraft Co. v. NLRB, 609 F.2d 352, 354 (9th Cir. 1979) ("It was proper to obtain from the arbitrator a clarification of his reasoning. The original opinion was ambiguous, and indeed the clarified opinion belied the Board's confident interpretation of the original." Id. at 354 (citations omitted)). The award represents a fraction of the $ 256,000 amount which the plaintiffs claim they lost due to defendants' breach of fiduciary duty.
To avoid judicial guessing as to the rationale behind the award and to permit effective judicial review, it was entirely appropriate for this Court to vacate and remand the arbitrators' award for further explanation.
Accordingly, it is this 10th day of May, 1988,
That defendants' motion for reconsideration of this Court's Memorandum Opinion of December 8, 1987, is denied.
This matter is remanded to the NYSE Arbitration Panel for a full explanation of the manner in which damages were computed so as to permit effective judicial review. The panel shall act expeditiously on this matter and file an appropriate memorandum in accordance with the Memorandum Order of December 8, 1987, and this Order, on or before July 1, 1988.