Gorsuch, Ltd. v. Wells Fargo National Bank Association
Filing
63
ORDER. The 57 Motion to Reconsider December 3, 2012 Order Dismissing Case Without Prejudice is granted. The December 3, 2012, 56 Order dismissing the case is vacated. The 58 Motion for Extension of Time to File Motion to Reopen Case Pursuant to Local Rule 41.2 is granted. Plaintiffs shall file any motion to reopen the case by or before Friday, 4/5/2013. By Judge Philip A. Brimmer on 3/14/13.(mnfsl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-00970-PAB-MEH
GORSUCH, LTD., a Colorado corporation,
GORSUCH LTD., B.C., a Colorado corporation,
GORSUCH, LIMITED AT ASPEN, a Colorado corporation,
GORSUCH, LIMITED AT KEYSTONE MOUNTAIN, a Colorado corporation, and
GORSUCH COOPER, LLC, a Colorado limited liability company,
Plaintiffs,
v.
WELLS FARGO NATIONAL BANK ASSOCIATION,
Defendant.
ORDER
This matter is before the Court on the Motion to Reconsider December 3, 2012
Order Dismissing Case Without Prejudice [Docket No. 57] and the Motion for Extension
of Time to File Motion to Reopen Case Pursuant to Local Rule 41.2 [Docket No. 58]
filed by plaintiffs on December 3, 2012.
I. BACKGROUND
On November 17, 2011, the Court issued an Order [Docket No. 46]
administratively closing this case pursuant to D.C.COLO.LCivR 41.2 so the parties
could pursue arbitration. The Order provided that the matter would be dismissed
without prejudice in the absence of a request to reopen the case on or before
December 1, 2012. On November 26, 2012, the arbitration panel issued plaintiffs an
interim award of $1,916,431. Docket No. 60-1 at 12. The panel granted plaintiffs until
December 10, 2012 to file a bill of costs. Id. On December 3, 2012, having received no
motion to reopen, the Court issued an Order [Docket No. 56] dismissing the case.
Later the same day, plaintiffs filed the two motions currently before the Court. In these
motions, plaintiffs request that the Court vacate its dismissal and grant plaintiffs an
extension of time to file a motion to reopen the case. Docket No. 57 at 3.
II. DISCUSSION
Plaintiffs seek leave to reopen the case on two grounds. First, they argue they
are entitled to confirm the arbitration award in Court pursuant to the Federal Arbitration
Act. Docket No. 57 at 2, ¶ 10; see 9 U.S.C. § 9. Second, they argue that they wish to
assert third-party claims. Docket No. 57 at 2-3, ¶ 11. In addition, they assert that an
extension of time is appropriate because, as of December 1, 2012, no final arbitration
award had been issued. Docket No. 57 at 2, ¶¶ 3-4.
With respect to the timing of the motions, plaintiffs acknowledge that the Court’s
Order “did require action before December 1, 2012,” Docket No. 61 at 4, ¶ 12
(emphasis in original),1 but state that they did not properly calendar this information and
therefore believed that the motion to reopen was not due until December 3, 2012, the
first Monday following December 1, which was a Saturday. Docket No. 61 at 4-5, ¶¶
12-15. Plaintiffs ask that the Court exercise its discretion to grant their motions despite
the late filing. Id.
Section 9 of Title 9 provides that:
1
Pursuant to the Court’s Practice Standards, “[a]ny motion for extension of time
shall be filed no later than three business days before the date the motion, response,
reply, or other paper is due.” Practice Standards (Civil cases), Judge Philip A. Brimmer
§ I.G.2 (emphasis in original).
2
If the parties in their agreement have agreed that a judgment of the court
shall be entered upon the award made pursuant to the arbitration, and shall
specify the court, then at any time within one year after the award is made
any party to the arbitration may apply to the court so specified for an order
confirming the award, and thereupon the court must grant such an order . . . .
If no court is specified in the agreement of the parties, then such application
may be made to the United States court in and for the district within which
such award was made.
See also P&P Indus., Inc. v. Sutter Corp., 179 F.3d 861, 866 (10th Cir. 1999) (“a district
court has no power to confirm an arbitration award under § 9 of the FAA unless the
parties have agreed, explicitly or implicitly, that any eventual arbitration award shall be
subject to judicial confirmation”); see also Will v. Parsons Evergreene, LLC, No. 08-cv00898-DME-CBS, 2011 WL 2792398, at *1 (D. Colo. July 15, 2011) (finding good
cause to reopen a case to confirm an arbitration award).
In this case, the parties’ arbitration agreement states that “[j]udgment upon any
award rendered in an arbitration may be entered in any court having jurisdiction.”
Credit Agreement [Docket No. 1-2] at 12, § 7.11(b). Thus, the parties anticipated that a
district court could confirm an arbitration award. The defendant’s concern about
plaintiffs using the Court’s confirmation of the arbitration award and the reopening of the
case to improperly assert third party beneficiary claims can be dealt with upon a motion
to file any such claims.
Good cause appearing, it is
ORDERED that the Motion to Reconsider December 3, 2012 Order Dismissing
Case Without Prejudice [Docket No. 57] is GRANTED. It is further
ORDERED that the December 3, 2012, Order [Docket No. 56] dismissing the
case is VACATED. It is further
3
ORDERED that the Motion for Extension of Time to File Motion to Reopen Case
Pursuant to Local Rule 41.2 [Docket No. 58] is GRANTED. It is further
ORDERED that plaintiffs shall file any motion to reopen the case by or before
Friday, April 5, 2013.
DATED March 14, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
4
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