United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
Thermal Dynamic International, Inc. (“TDI”),
filed suit against Defendants Safe Haven Enterprises, LLC
(“Safe Haven”), Alta Baker, and John Baker,
alleging the Defendants failed to pay the final invoice
submitted by TDI for work performed as a subcontractor at the
United States embassy in Yemen. Presently before the Court
are Plaintiff’s  Motion to Confirm Arbitration
Award and Defendants’  Cross Motion to Dismiss.
Upon consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court finds that
there is no basis to vacate the arbitration award entered by
the American Arbitration Association on December 30, 2014 in
TDI’s favor and against Defendant Safe Haven
(“the Award”). The Court further finds that there
is no basis to grant Defendants’ request that this
Court vacate the Award or that this Court dismiss this matter
in favor of Defendants. Accordingly, the Court shall GRANT
Plaintiff’s  Motion to Confirm Arbitration Award
and DENY Defendants’  Cross Motion to Dismiss.
September 2006, the United States Department of State (the
“State Department”) awarded Defendant Safe Haven
a contract to perform construction at the United States
embassies in Yemen and Bahrain. See Subcontract
(Sept. 7, 2006), ECF No. [47-2], at 1. Safe Haven, in turn,
awarded a subcontract to Plaintiff TDI, pursuant to which TDI
agreed to install certain mechanical equipment in each
embassy. See Id. The subcontract referred to the two
embassy projects as the “Sana’a, Yemen Embassy
Environmental Security Measures” project and the
“Manama, Bahrain Embassy Environmental Security
Measures” project. See id.
16, 2013, TDI filed the instant action, asserting five causes
of action against Defendant Safe Haven, as well as Alta
Baker, the Chief Executive Officer and owner of Safe Haven,
and John Baker, an officer and co-owner of Safe Haven. The
Complaint alleged that TDI had fully performed its
obligations under the subcontract with respect to the embassy
in Yemen, but that Safe Haven refused to pay the final
invoice, which was in the amount of $356, 574.96. Compl.
¶¶ 17, 19.
8, 2013, this Court granted Defendants’ motion to
compel arbitration as to the claims against Defendant Safe
Haven, and dismissed all claims against Defendants John and
Alta Baker with the exception of an unjust enrichment claim.
See Mem. Op. and Order, ECF Nos. , .
Plaintiff continued to pursue its unjust enrichment claim
against the Bakers in this Court, while Plaintiff pursued its
claims against Safe Haven in arbitration. In May 2014,
discovery closed in the case involving the Bakers, and the
Court granted a Stay pending the resolution of the associated
arbitration between TDI and Safe Haven. See Minute
Order (May 7, 2014) and Order (May 19, 2014), ECF No. .
December 30, 2014, the Arbitrator who heard Plaintiff’s
claims against Safe Haven issued a six-page decision finding
that Safe Haven had breached the Subcontract and was liable
to TDI for the principal amount of $356, 574.86. See
Arbitration Decision (Dec. 30, 2014), ECF No. [43-3]. The
Arbitrator’s decision followed several months of
discovery, a three-day, in-person hearing, and extensive
pre-hearing and post-hearing briefing by the parties. See
id.; see also Safe Haven’s Motion to
Dismiss TDI’s Claims, ECF No. [52-6]; TDI’s
Post-Hearing Brief, ECF No. [43-4], Safe Haven’s
Post-Hearing Brief, ECF No. [43-5]; 10/27/2014 Email re:
Arbitration Hearing, ECF No. [43-6]. On January 6, 2015, the
American Arbitration Association delivered the Award to the
November 13, 2015, Plaintiff filed the instant Motion to
Confirm Arbitration Award. Plaintiff indicated in its motion
that Safe Haven had not paid the Award. Plaintiff also
indicated that Safe Haven did not file a motion to vacate the
Award and contends that Safe Haven thereby waived its right
under the Federal Arbitration Act to challenge the award at
this stage. See Pl.’s Mem. in Supp. of Mot. to
Confirm, ECF No. , 4-5.
December 14, 2015, Defendant Safe Haven filed its opposition
to Plaintiff’s motion and filed a cross motion to
dismiss Plaintiff’s claims against Defendants, arguing
that Plaintiff committed “corruption and fraud”
before this Court and in the arbitration proceeding.
Defs.’ Cross Motion, ECF No. [47-1], at 19. Safe Haven
concedes in its 43-page motion that it failed to challenge
the arbitration decision within the three-month window
allowed under the Federal Arbitration Act, and has provided
no explanation for its failure to so challenge. See
Id. Safe Haven has instead requested that the Court
“create an exception in the form of a sanction to allow
[Safe Haven] to raise an Affirmative Defense of
‘corruption or fraud’ under 9 U.S.C. § 12
even if [Safe Haven] did not file a Motion to Vacate within
the three months (sic) required under 9 U.S.C. §
12[.]” Id. at 19-20.
the Court discusses the merits of Plaintiff’s Motion to
Confirm Arbitration Award and Defendants’ Cross Motion
to Dismiss, the Court shall first resolve a procedural motion
raised by Plaintiff during briefing.
The Court shall DENY Plaintiff TDI’s Motion to
Strike Defendants’ Reply Memorandum, or in the
Alternative, to Request Permission to File a Surreply
December 21, 2015, Plaintiff TDI filed its reply memorandum
in support of its Motion to Confirm Arbitration Award and in
opposition to Defendants’ Cross Motion to Dismiss. On
December 24, 2015, Defendants filed their reply memorandum in
support of Defendants’ Cross Motion to Dismiss,
contending that Plaintiff failed to respond to certain
allegations in Defendants’ Cross Motion to Dismiss, and
that Plaintiff conceded the allegations contained therein.
See Defs.’ Reply, ECF No. , at 4-6.
December 29, 2015, Plaintiff filed a Motion to Strike
Defendants’ Reply Memorandum, or, in the Alternative,
to Request Permission to File a Surreply. See ECF
No. . In its motion, Plaintiff contends that the section
entitled “Additional Statement of Facts” in
Defendants’ reply brief contains new facts not
previously raised in the parties’ motions. See
Id. at 1-2. Plaintiff also disputes Defendants’
contentions that Plaintiff failed to respond to
Defendants’ allegations in Plaintiff’s opposition
brief. See Id. at 2-3. Additionally, Plaintiff
requests that the Court order Defendants to pay the cost of
Plaintiff’s filing any surreply addressing
Defendants’ “baseless arguments.” See
Id. at 3. Defendants oppose Plaintiff’s motion,
arguing that Defendants did not raise any “new”
factual allegations or arguments in its reply brief.
See ECF No. , at 2-4.
outset, the Court notes that surreplies are generally
disfavored, and the determination as to whether to grant or
deny leave is entrusted to the sound discretion of the
district court. Akers v. Beal Bank, 760 F.Supp.2d 1,
2 (D.D.C. 2011). In exercising its discretion, the Court
should consider whether the movant’s reply in fact
raises arguments or issues for the first time, whether the
non-movant’s proposed surreply would be helpful to the
resolution of the pending motion, and whether the movant
would be unduly prejudiced were leave to be granted.
Glass v. Lahood, 786 F.Supp.2d 189, 231 (D.D.C. May
the Court finds that the section in Defendants’ reply
memorandum entitled “Additional Statement of
Facts” is a restatement of allegations already in the
record, and that a surreply from Plaintiff would not be
helpful to the resolution of the pending motions.
See Defs.’ Reply, ECF No. , at 2-4.
Specifically, the allegations in the “Additional
Statement of Facts” section in Defendants’ reply
brief merely repeat the allegations already presented in Safe
Haven’s Post-Hearing Brief, which Plaintiff itself
submitted as an attachment to the instant Motion to Confirm.
See Exhibit C to TDI’s Motion to Confirm (ECF
No [43-5]). Therefore, Defendants were within their right to
rely on those allegations in their reply brief. See Simms
v. Ctr. for Corr. Health & Policy Studies, 794
F.Supp.2d 173, 186 (D.D.C. 2011) (finding that a brief that
“simply points to evidence already in the record”
does not raise new issues for the court to resolve). In light
of the foregoing, the Court finds that there is no basis in
the record to strike Defendants’ reply from the record.
The Court further finds that a surreply from Plaintiff would
not be helpful to the resolution of the pending
motions. Accordingly, the Court shall, in an
exercise of its discretion, DENY Plaintiff’s 
Motion to Strike Defendants’ Reply Memorandum, or, in
the Alternative, to Request Permission to File a Surreply.
Court shall now consider the merits of Plaintiff’s
Motion to Confirm Arbitration Award and Defendants’
Cross Motion to Dismiss.
Federal Arbitration Act provides that “[n]otice of a
motion to vacate, modify, or correct an award must be served
upon the adverse party or his attorney within three months
after the award is filed or delivered.” 9 U.S.C. §
12. The Court may vacate an award where: (1) the award was
“procured by corruption, fraud, or undue means”;
(2) “there was evident partiality or corruption in the
arbitrators, or either of them”; (3) the arbitrators
were guilty of misconduct or misbehavior “by which the
rights of any party have been prejudiced”; or (4)
“the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and definite
award upon the subject matter submitted was not made.”
Id. at § 10(a)(1)-(4). “[A]t any time
within one year after the award is made any party to the
arbitration may apply ...