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Owen-Williams v. BB&T Investment Services

May 24, 2010


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


By Memorandum Opinion and Order dated July 31, 2006, this Court granted Defendant BB&T Investment Services, Inc.'s ("Defendant" or "BB&T") request to compel arbitration of Plaintiff's breach of contract claims. The parties subsequently proceeded to arbitration, and a final arbitration award was issued in Defendant's favor. Plaintiff, proceeding pro se, now moves the Court to vacate the unfavorable arbitration decision or, alternatively, to reconsider the Court's July 31, 2006 Order compelling arbitration in the first instance. Defendant opposes Plaintiff's motion and cross-moves for an order confirming the arbitration award. Upon consideration of the parties' cross-motions, responsive briefing and attachments thereto, the relevant case law and statutory authority, and the record of this case as a whole, the Court shall DENY Plaintiff's [11] Motion to Vacate Arbitration Ruling and Motion for Reconsideration to Compel Arbitration and shall GRANT Defendant's [13] Application to Confirm Arbitration Award, for the reasons set forth below.


The Court assumes familiarity with the factual background of this case, which is set forth in detail in this Court's July 31, 2006 Memorandum Opinion, Owen-Williams v. BB&T Inv. Servs., Inc., Civ. Act. No. 06-948, 2006 U.S. Dist. LEXIS 52392 (D.D.C. July 31, 2006), and therefore addresses herein only such facts as are necessary for resolution of the motions currently before the Court.

A. Plaintiff's Initial Breach of Contract Claims

This lawsuit stems from BB&T's decision to rescind its offer of employment to Plaintiff. In early 2006, Plaintiff interviewed for and was ultimately offered a position with the Defendant. Id. at *1.*fn1 The offer of employment was first conveyed orally via telephone on March 22, 2006, by one of Defendant's recruiters, T.J. Roccograndi. Id. at *3. The following day, March 23, 2006, Mr. Roccograndi sent a letter to Plaintiff regarding the job offer ("Employment Contract"), along with an attached Protective Covenants Agreement ("Covenants Agreement").*fn2 Id. The Employment Contract stated that "[a]ll employment offers are contingent upon standard background checks...," and informed Plaintiff that his employment would begin April 10, 2006. Id. at *4; see also Employment Contract. The Covenants Agreement contained the following arbitration clause:

The parties agree that any and all disputes, disagreements, claims, or other conflicts regarding, relating to, or arising out of this Agreement, the Parties' employment relationship, any termination thereof, any employment-related act or practice by Employer or its employees, representatives, or agents, any breach of this Agreement, or any alleged breach of this Agreement, shall be subject and submitted to arbitration. Owen-Williams, 2006 U.S. Dist. LEXIS 52392, *4; see also Covenants Agreement at 7. Plaintiff signed both documents and returned them on March 24, 2006, the day he received them. Owen-Williams, 2006 U.S. Dist. LEXIS 52392, *4.

Shortly thereafter, BB&T decided to rescind its employment offer based on information disclosed during Plaintiff's background check. Id. at *6. Mr. Roccograndi communicated BB&T's decision to Plaintiff on April 6, 2006 (i.e., prior to the date Plaintiff and Defendant had agreed Plaintiff would begin his employment). Id. On April 11, 2006, Mr. Roccograndi again spoke with Plaintiff and confirmed that the Compliance Department was not willing to approve Plaintiff for hiring based upon information disclosed during the background investigation. Id.*fn3

After unsuccessfully pursuing the matter further with Mr. Roccograndi, Plaintiff retained counsel*fn4 and filed suit in Superior Court of the District of Columbia alleging that Defendant terminated him in violation of his employment contract. Id. On April 21, 2006, the day the Complaint was filed, Plaintiff also filed an emergency motion for a temporary restraining order ("TRO") to prevent Defendant from filling Plaintiff's position at BB&T. Id. That same day, the first of two evidentiary hearings on Plaintiff's requested TRO was held. Id. at *7. Superior Court Judge Robert S. Tignor denied Plaintiff's motion from the bench. Id. Three days later, however, Judge Tignor vacated his denial and issued an order permitting the parties to offer further evidence at an additional hearing. Id. Judge Tignor ultimately denied Plaintiff's requested temporary restraining in a final order on May 8, 2006. Id. at *8, n. 2.

Shortly thereafter, on May 19, 2006, the action was removed by Defendant to this Court. See Notice of Removal. One week later, Defendant filed a Motion to Compel Arbitration, see Docket No. [4], which the Court subsequently granted by Memorandum Opinion and Order dated July 31, 2006. See Owen-Williams v. BB&T Inv. Servs., Inc., Civ. Act. No. 06-948, 2006 U.S. Dist. LEXIS 52392 (D.D.C. July 31, 2006). Specifically, the Court found that the arbitration agreement between the parties was a binding contract supported by consideration, that the Federal Arbitration Act ("FAA") preempts Georgia law and governs the agreement, and that Defendant had not waived its right to enforce the arbitration agreement. Id. at *9. Accordingly, the Court concluded that, "[g]iven the breadth of the arbitration agreement and the fact that Plaintiff and Defendant's dispute falls squarely within the language of the agreement, referring to termination and breach, it is apparent that all of the issues in this action are subject to arbitration." Id. at *35. The Court therefore granted Defendant's Motion to Compel Arbitration and dismissed the action without prejudice. Id. In so doing, the Court specifically held that dismissal, rather than a stay, was appropriate. Id. at *34-35. Plaintiff did not appeal the Court's July 31, 2006 Order nor did he file a motion for reconsideration of the Court's decision.

B. Arbitration

On December 20, 2007, Plaintiff filed a Statement of Claim for arbitration with the Financial Industry Regulatory Authority ("FINRA"), based upon the same allegations asserted in his initial lawsuit. See Def.'s Opp'n, Docket No. [12], Ex. 4 (hereinafter, "Statement of Claim").*fn5 A panel of three arbitrators was appointed, and an initial pre-hearing telephone conference was held on April 30, 2008. See id., Ex. 6 ("Initial Pre-Hearing Conference Scheduling Order") at p. 5. At that time, an Initial Pre-Hearing Conference Scheduling Order was entered. See id. at pp. 5-9. Discovery was set to close on July 3, 2008, and the hearing session was scheduled to begin on Wednesday, July 23, 2008, and to continue through and including Friday, July 25, 2008, as necessary, at the hearing site in Washington, D.C. Id. at p. 6. Both parties were represented by counsel throughout the arbitration process. See id. at p. 5. No objections were made by either side to the composition of the arbitration panel at the pre-hearing conference. See id. at pp. 5-6 (indicating that the parties accepted the panel's composition).

As is relevant to Plaintiff's pending motion, the Court notes that on July 2, 2008, prior to the start of the arbitration hearing, Defendant filed a motion with the arbitration panel requesting a witness scheduling accommodation. See Def.'s Opp'n, Ex. 7 (Motion for Witness Scheduling Accommodation) (hereinafter, "Scheduling Mot."). Defendant asked the panel to permit its witness, Mr. Roccograndi, to testify on Friday, July 25, 2008, the last day of the hearing. See id. Defendant represented that Mr. Roccograndi, who was no longer employed with BB&T, was at that time enrolled as a summer student at West Virginia University and was scheduled to be in class and taking final exams the week of the arbitration hearing. Id.; see also Def.'s Opp'n, Ex. 16 (Declaration of Thomas J. Roccograndi) (hereinafter, "Roccograndi Decl.") ¶¶ 5-6. Defendant therefore requested that, in the event Mr. Roccograndi's live testimony was needed, he be permitted to testify on Friday in order to accommodate his class schedule. See Scheduling Mot. On July 10, 2008, after considering all submissions in connection with the motion, the panel granted Defendant's motion and ordered that Mr. Roccograndi would be permitted to testify on Friday, July 25, 2008, in the event Defendant decided to call him as a witness. See Def.'s Opp'n, Ex. 8 (Panel Order on Defendant's Scheduling Motion).

The arbitration proceeded as scheduled. On the first day of the hearing, the parties - including Plaintiff's then-counsel - confirmed that they accepted the panel's composition. See Def.'s Opp'n, Ex 9 (Hearing Transcript - Vol. 1) (hereinafter, "Hrg Tr. Vol. 1") at 4:3-8 ("Chairman []: At this point in time, given the disclosures have been made, the introductions have been made, I would ask each of the parties to confirm that they accept the panel's composition?" [Plaintiff's Counsel]: We accept the panel.").*fn6 After introductory remarks, Plaintiff's counsel provided an opening statement, see id. at 9:21-11:21, and then proceeded to present Plaintiff's case, see id. at 26:6. Plaintiff's counsel completed his presentation by mid-afternoon that day, and Defendant then began to present its case. See id. at 140:4.

At the close of the day, the panel inquired as to the schedule for Defendant's remaining presentation. See id. at 197:2-198:1; see also Urban Decl. ¶ 4. Defendant's counsel stated that they had one or two witnesses left, including Mr. Roccograndi, but indicated that no decision had yet been made as to whether Defendant would rely upon a transcript of Mr. Roccograndi's prior testimony before the D.C. Superior Court or would need to call him live on Friday, July 25, 2008. See Hrg Tr. Vol. 1 at 197:2-198:1; see also Urban Decl. ¶ 4. In addition, Plaintiff's counsel advised the panel for the first time that he had a potential conflict on the morning of Friday, July 25, 2008. Urban Decl. ¶ 5. Specifically, Plaintiff's counsel informed the panel that he had a divorce and custody hearing in Maryland scheduled for that morning and that he had no control over the timing nor could he secure anyone to cover the hearing for him; accordingly, he stated that he would not be available for the arbitration until the afternoon on Friday, July 25, 2008. Id. In response, the panel chairman advised the parties that the hearing would proceed the next day as scheduled and that the panel would reserve its decision as to the remaining schedule. See Hrg. Tr. Vol. 1 197:16-23 ("Chairman Urban: I'm prepared to say lets be here at 9:00 tomorrow, present [Defendant's] additional witnesses and if we do need to have Mr. Roccograndi we will come back on Friday for Mr. Roccograndi and closing arguments. If you [Defendant] are to make a decision that you don't need Mr. Roccograndi, and you're just prepared to use his transcript testimony then hopefully (inaudible) and closing tomorrow."). Both counsel for Plaintiff and counsel for Defendant agreed with this approach. Id. at 197:23-198:2("Chairman Urban... Is that fair enough for everybody? [Defendant's counsel]: Yes. [Plaintiff's counsel]: Yes."). The first day of the hearing was then adjourned. Id. at 198:2-3.

The hearing resumed the next morning, Thursday, July 24, 2008, with the presentation of the Defendant's case. See Def.'s Opp'n, Ex. 11 (Hearing Transcript - Vol. 2) (hereinafter, "Hrg Tr. Vol. 2") at 2:3-9. During the course of the day, counsel for Defendant advised the panel that he planned to call Mr. Roccograndi live on Friday, July 25, 2008. Urban Decl. ¶ 7. Plaintiff's counsel again confirmed that he would be unavailable until the afternoon on Friday, July 25, 2008, as he anticipated that the hearing in Maryland would last until approximately noon. See id. ¶ 7; see also Hrg. Tr. Vol. 2 at 2:14-25. In addition, one of the panel members advised the panel chairman that she was not able to stay late on Friday afternoon. Urban Decl. ¶ 7. Accordingly, the panel members discussed whether to proceed on Friday afternoon, once Plaintiff's counsel was available, or to continue the hearing to another day. Id. Because the parties would need time to present their closing arguments in addition to the time needed to present Defendant's remaining witnesses, the panel concluded that the hearing would not likely be completed in one afternoon. Id. The panel therefore decided that the hearing should be continued to another time when all parties were available for a full day hearing. Id. "In making this determination, the panel specifically considered the likelihood that [Plaintiff's counsel] would not arrive at the arbitration hearing in downtown Washington, D.C. until 1:00 p.m. or later; the potential length of Mr. Roccograndi's testimony; and the desirability of providing both parties ample time to present their closing arguments without interruption. For these reasons, the panel continued the hearing." Id. As Chairman Urban avers, "BB&T did not request that the hearing be continued from July 25, 2008, and, to the best of my knowledge, was ready, willing and able to proceed on July 25, 2008 to complete the Arbitration, if [Plaintiff's counsel] had been available." Id. ¶ 8. Furthermore, as set forth in Mr. Roccograndi's Declaration, he had made arrangements to travel to Washington, D.C. on Friday, July 25, 2008, for the arbitration hearing and was prepared to testify in person on that date, until he was informed by Defendant's counsel that the hearing had been rescheduled. Roccograndi Decl. ¶¶ 7-10. The final day of the hearing was ultimately rescheduled by FINRA to September 9, 2008. Id.

Thereafter, on August 13, 2008, (i.e., during the intervening period of time prior to the rescheduled hearing date), Defendant filed a Motion for Non-Party Subpoena with FINRA.

See Def.'s Opp'n, Ex. 12 (Motion for Non-Party Subpeona) (hereinafter, "Mot. for Subpoena"). As set forth therein, Defendant requested the authority to subpoena a representative of the Registrar's office at the University of Maryland in order to address evidence offered by Plaintiff for the first time during the hearing that he was a graduate of the University of Maryland, College Park. See id. Defendant indicated that the Registrar representative would testify that the University of Maryland, University College had no records of Plaintiff's attendance at or graduation from the institution. See id. at 1-2. The panel granted Defendant's motion and issued a Subpoena Duces Tecum for the Assistant Registrar to appear at the September 9, 2008 hearing. See Def.'s Opp'n, Ex. 13 (Subpoena Duces Tecum issued on August 26, 2008).

The final day of the hearing commenced as scheduled on September 9, 2008. See Urban Decl. ¶ 2. Although no transcript for that day is available, see supra pp. 6-7, n. 6, the present record indicates that Defendant offered into evidence the videotaped deposition testimony of Mr. Roccograndi as well as the live testimony of the University of Maryland Assistant Registrar. See Roccograndi Decl. ¶ 12; see also Def.'s Opp'n, Ex. 13 (Subpoena Duces Tecum issued on August 26, 2008). The arbitration hearing closed that day, see Urban Decl. ¶ 2, and the panel issued its decision on September 22, 2008, id.; see also Def.'s Opp'n, Ex. 14 (Award FINRA Dispute Resolution) (hereinafter, "Final Arbitration Award").

As set forth in the Final Arbitration Award, judgment was awarded in Defendant's favor. See id. Specifically, the panel concluded that,:

[a]fter considering the pleadings, the testimony and evidence presented at the hearing, the Panel has decided in full and final resolution of the issues submitted for determination as follows: Respondent is not liable and Claimant's claims are denied, with prejudice.

Any and all claims for relief not specifically addressed herein, including Claimant's request for punitive damages and the parties' requests for attorneys' fees are denied. Id. at 2. No further written explanation was provided. See generally id. The panel assessed hearing fees in the amount of $7,200.00 to Defendant. See id. at 3.

C. The Parties' Pending Cross-Motions

As indicated above, the panel issued its final decision on September 22, 2008. Shortly thereafter, Plaintiff, proceeding pro se, filed the now-pending Motion to Vacate Arbitration Ruling and Motion for Reconsideration to Compel Arbitration. See Docket No. [11] (hereinafter, "Pl.'s Mot. to Vacate"). Defendant filed an Opposition to Plaintiff's Motion, see Docket No. [12] (hereinafter, "Def.'s Opp'n"), as well as a Cross-Motion to Confirm the Arbitration Award, see Docket No. [13] (hereinafter, "Def.'s Cross-Mot. to Confirm"). Plaintiff subsequently filed an Opposition to Defendant's Cross-Motion to Confirm, see Docket No. [14] (hereinafter, "Pl.'s Opp'n"), as well as a Reply in support of his Motion to Vacate, see Docket No. [16] (hereinafter, "Pl.'s Reply"). Finally, Defendant filed a Reply in support of its Cross-Motion to Confirm. See Docket No. [15] (hereinafter, "Def.'s Reply"). Accordingly, the parties' Cross-Motions are now ripe and ready for the Court's review and resolution.


A. Legal Standard for Reconsideration of ...

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