United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Plaintiff DCK World
Wide, LLC (DCK)'s Opposed Motion for Leave to File Out of
Time Plaintiffs Response to Defendant's Motion to Compel
Arbitration [#21], Defendant Pacifica Riverplace, LP
(Pacifica)'s Response [#23] in opposition, and DCK's
Reply [#31] in support; Pacifica's Motion for Entry of
Default [#24]; Pacifica's Motion to Confirm Arbitration
Award and Enter Judgment [#43], and DCK's Response [#49]
in opposition; as well as DCK's Motion to Vacate
Arbitration Award [#48], and Pacifica's Response [#51] in
opposition. Having considered the case file and the
applicable law, the Court enters the following opinion and
case relates to the arbitration of a dispute involving
construction of a Residence Inn Hotel owned by Pacifica. The
property owner, Pacifica, hired Summit dck, LLC (Summit) to
perform construction on the hotel. See Mot. Prelim.
Inj. [#4-3] Ex. 2 (Contract). Summit hired JA Plumbing, Inc.
(JA Plumbing) as a subcontractor to provide plumbing work for
the project. See Mot. Vacate [#48] at 2. Citing
unpaid bills, JA Plumbing sued Pacifica and Summit on August
25, 2015 in the 53rd Judicial District state court in Travis
County. Id. Pacifica filed a cross-claim against
Summit and sought leave to join Summit's indirect
corporate parent, DCK. Id. Before the Court
addressed Pacifica's request for leave to add DCK,
Summit, JA Plumbing, and Pacifica agreed to, arbitrate their
disputes, and the state court issued an order to abate the
proceedings pending the outcome of arbitration. See
id.; Mot. Prelim. Inj. [#4-7] Ex. 6 (Apr. 13, 2016
Agreed Order). Pacifica sought to add DCK as a party to the
arbitration proceedings, and DCK objected. See Mot.
Vacate [#48] at 2-3. DCK filed this lawsuit on June 8, 2016,
requesting declaratory and injunctive relief against the
arbitration proceedings. See Compl. [#1].
DCK requested a preliminary injunction to enjoin Pacifica
from pursuing claims against DCK in the arbitration.
See Mot. Prelim. Inj. [#4]. DCK argued the
arbitrator lacked jurisdiction to determine whether DCK is
bound by the Contract's arbitration provision. See
Id. at 6. Before the Court ruled on DCK's request
for a preliminary injunction, the arbitrator issued her July
18, 2016 ruling denying DCK's objections to
arbitrability, effectively compelling DCK to the arbitration.
See Supplement [#20-1] Ex. A (Arbitrator Ruling).
Shortly thereafter, this Court denied DCK's request for a
preliminary injunction for failing to meet its burden for the
requested relief. See Order of Jul. 29, 2016 [#29].
The Court granted the parties' joint motion to stay the
case pending the outcome of arbitration. See Order
of Sep. 2, 2016 [#33]. The final arbitration hearing was
conducted on July 10, 2017, and the arbitrator issued a final
award on October 25, 2017. See Mot. Confirm
Arbitration [#43-2] Ex. B (Final Award).
issue now is the effect of the Final Award. Pacifica requests
this Court confirm the Final Award and enter judgment in its
favor. DCK asserts the arbitrator exceeded her powers, and
therefore the Final Award should be vacated. The parties'
motions are ripe and ready for consideration.
July 5, 2016 response to DCK's request for a preliminary
injunction also included a motion to compel arbitration and
stay these proceedings pending the outcome of the
arbitration. See Resp. [#15]. Sixteen days later, DCK sought
leave to file a response to Pacifica's motion to compel
arbitration. See Mot. Leave [#21]. These motions are moot in
light of the Court's order staying these proceedings for
arbitration and the arbitrator's Final Award. See Order
of Sep. 2, 2016 [#32]; Final Award.
also requested entry of default for its counterclaims against
DCK on July 25, 2016. See Mot. Default [#24]. DCK filed an
answer to Pacifica's counterclaims later the same day.
Although DCK's answer was untimely, a default judgment is
Motions on Arbitrator's Final Award
parties disagree on the enforceability of the
arbitrator's Final Award. Pacifica contends the Final
Award is enforceable and seeks to confirm the award under
§ 9 of the Federal Arbitration Act (FAA). See Mot.
Confirm [#43] at 4-7. DCK asserts the Final Award must be
vacated because the arbitrator exceeded her powers in
adjudicating the arbitrability of the parties' dispute.
See Mot. Vacate [#48] at 4-7. Under the correct law, DCK
argues, the arbitrator should have deferred the issue of
arbitrability to this Court since DCK did not agree to
delegate arbitrability to the arbitrator. Id.
the Court addresses the issues of arbitrability, DCK's
obligation to arbitrate, and confirmation of the Final Award.