United States District Court, D. Columbia.
For DAVID NUYEN, Petitioner: Daniel M Wemhoff, LAW OFFICES OF DANIEL WEMHOFF, Arlington, VA.
For HONG THAI LY, Respondent: Justin Dillon, LEAD ATTORNEY, Kaiser, LeGrand & Dillon PLLC, Washington, DC.
ROSEMARY M. COLLYER, United States District Judge.
In this unusual case, the party who demanded commercial arbitration and lost his case, attempts to parse the Arbitrator's decision in a manner more nice than accurate in order to bring the same dispute to federal court. However, David Nuyen's Petition to Vacate Arbitration Award is plainly without merit and the Arbitrator's decision is entitled to confirmation. The Petition to Vacate will be denied and Respondent Hong Ly Thai's Motion to Confirm Arbitration Award will be granted.
Sometime in 2013, David Nuyen filed a demand for arbitration against " Hong Thai Ly" under the Commercial Rules of the American Arbitration Association (AAA). Arbitrator Matthew B. Ruble was appointed by the AAA and accepted. Mr. Nuyen alleged breaches of three separate partnership agreements between the parties and/or an oral partnership agreement; he sought $5,000,000 in damages. Ms. Thai denied that she and Mr. Nuyen had ever agreed to any written or oral agreements, but she was willing to submit to arbitration to decide his claims. See Def.'s Motion to Confirm, Ex. 2 (Answering Statement) [Dkt. 5-2] at 6-7 (" Ms. Thai denies that the 'Partnership Agreement' submitted by Claimant is the document it purports to be . . . . However, in the interest of just and swift resolution, she agrees to submit this case to the jurisdiction of the AAA." ) Arbitrator Ruble conducted a telephonic pre-hearing conference and the matter was set for arbitration on May 27 and 28, 2014, in Washington, D.C.
Ms. Thai is a citizen of the United States who is living in Venezuela. She arranged to appear by Skype to testify at the arbitration hearing. On that day, however, connections could not be maintained and, without objection, Ms. Thai testified by telephone.
Each of the three partnership documents on which Mr. Nuyen based his claims contains an arbitration clause:
Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled in arbitration in accordance with the rules, then obtaining, of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.
Petition to Vacate Arbitration Award (Pet. to Vacate), Dkt. 1, Ex. B (Decision and Award of Arbitrator) (Arbitration Award) at 1. Mr. Nuyen drafted the alleged partnership agreements himself, including the arbitration clause. He argued that he and Ms. Thai had executed three partnership agreements for the purchase, management and sale of three real properties in the District of Columbia and Virginia. He asserted breach by Ms. Thai.
One of the partnership agreements was allegedly signed and dated on April 10, 2002 and the other two were allegedly signed and dated on July 2, 2003. In a prior lawsuit involving these parties in the Superior Court of the District of Columbia, Mr. Nuyen contended that he and Ms. Thai had entered into a written partnership agreement on July 2, 2003. " By contrast, at the hearing in this arbitration, Mr. Nuyen testified that he and Ms. [Thai]'s partnership agreements were verbal, not written, and were reached in 2002 and 2003." Arbitration Award at 2. However, Mr. Nuyen could not identify any of the dates on which such verbal agreements were reached and " utterly failed to prove the essential terms of any alleged verbal partnership agreement." Id.
As to the signed partnership agreements, Mr. Nuyen testified at arbitration that Ms. Thai had signed all three of them sometime in 2012, " sitting in a car in a parking lot" in the United States. Id. The agreements were backdated to the alleged dates of oral agreements, guessed at by Mr. Nuyen. Arbitrator Ruble found this testimony " not only unusual, it was incredible." Id.
To the contrary, Ms. Thai produced evidence that she was not in the United States at the time she was supposed to have signed the backdated partnership agreements in 2012. " It was also proven, without contradiction, that Mr. Nuyen was being held in a federal penitentiary, serving a sentence for fraud, on the dates when he later alleged verbal partnership agreements." Id. at 3.
Each party called an expert witness to testify to the authenticity of Ms. Thai's signatures on the alleged partnership agreements. In " the most generous conclusion which could be drawn from the competing expert testimonies," Arbitrator Ruble found the evidence " in a state of equipoise," which " did not satisfy Mr. Nuyen's burden of proof." Id. Undermining Mr. Nuyen's case was the testimony of his own handwriting expert that Mr. Nuyen had told her, in April 2014, that the partnership agreements were signed in 2003, contrary to his May 2014 arbitration testimony, that the agreements were signed in 2012 and backdated. Id.
Arbitrator Ruble's conclusions were expressed quite clearly:
o " Mr. Nuyen failed to prove the existence or terms of the real estate partnerships which he alleged." Id.
o " Moreover, he did not prove any breach of contract, even assuming for the sake of argument that a contract existed." Id.
o " Because Mr. Nuyen failed to prove the existence of either the verbal or written partnership agreements which he alleged, his claims will be denied." Id.
o " Mr. Nuyen failed to prove any element of a legal cause of action against Ms. [Thai]." Id. at 4.
o " The Claimant failed to prove the existence of any of the alleged partnership agreements with Ms. [Thai] with respect to the three subject properties, so all relief requested by the Claimant is hereby denied. The Award in this case ...