Johnson v. Pizza Hut

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE

         Before the Court is Plaintiff's Motion and Amended Motion to Vacate, Modify or Correct Arbitration Award. ECF No. 34, 38. Defendant has filed a response to this Motion. ECF No. 41.

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Susan O. Hickey referred these Motions to this Court for the purpose of making a report and recommendation. In accordance with that referral, this Court enters the following report and recommendation.

         1. Background:

         Plaintiff, who is proceeding pro se, filed her lawsuit on October 26, 2016. ECF No. 1. On March 21, 2017, Plaintiff's claims were referred to arbitration. ECF No. 23. The matter was stayed and administratively terminated pursuant to 9 U.S.C. § 3, without prejudice to the right of the parties to reopen the proceedings to enforce the arbitrator's decision. Id. The parties then engaged in arbitration before the American Arbitration Association (“AAA”) and selected arbitrator John C. Holstein to preside over the proceedings. ECF No. 41-2. On October 17, 2018, Arbitrator Holstein entered his Award of Arbitrator and found Plaintiff failed to establish any of her claims by a preponderance of the evidence. Id.

         With this Motion, Plaintiff claims the Arbitration Award should be vacated because (1) Arbitrator Holstein erred by not requiring witness Shalanna Thornton to appear in person to testify, (2) Arbitrator Holstein awarded attorney's fees to NPC, and (3) Plaintiff has discovered “new evidence” ECF No. 38.

         In response, Defendant claims the Plaintiff's Motion should be denied because there is no basis to disturb the Arbitration Award. ECF No. 41.

         2. Applicable Law:

         A district court's review of an arbitration award is extremely limited. See Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504 (2001). The underlying award is entitled to an "extraordinary level of deference." Schoch v. Infousa, Inc., 341 F.3d 785, 788 (8th Cir. 2003) (internal citations omitted). According to this narrow and deferential standard, a district court may not set aside an arbitration award even if the court may "have interpreted the agreement differently or because the arbitrator erred in interpreting the law or in determining the facts." Hoffman v. Cargill, Inc., 236 F.3d 458, 462 (8th Cir. 2001). So long as the arbitrator is even arguably construing the underlying contract and acting within his scope of authority, the award should be confirmed. Schoch, 341 F.3d at 788.

         An arbitrator's broad authority is constrained by the Federal Arbitration Act (“FAA”). See 9 U.S.C. § 1 et seq. A district court may vacate an award if it evidences a manifest disregard for the law or if it is completely irrational. See 9 U.S.C. § 10(a)(4), Hoffman, 236 F.3d at 461. An award may also be vacated if the arbitrator is guilty of misconduct. See 9 U.S.C. § 10(a)(3).

         3. Discussion:

         Plaintiff first claims the Arbitration Award should be vacated because Arbitrator Holstein erred by not requiring witness Shalanna Thornton to appear in person to testify. ECF No. 38, Pgs. 3-4. Upon review, the Court finds this as no basis for vacating the Arbitration Award.

         As shown by the transcript of the arbitration proceeding, Plaintiff objected to Ms. Thornton's testimony being offered telephonically. ECF No. 41-1, Pgs. 40-41. Following this, NPC rested its case in chief and declined to call Ms. Thornton to testify. Id. NPC was not required to call any witness and Plaintiff could have subpoenaed Ms. Thornton to testify in her case in chief. Additionally, there is no indication Plaintiff requested she be allowed to reopen her case to call Ms. Thornton as a witness.

         Plaintiff next argues it was error to award attorney's fees to NPC. ECF No. 38, Pgs. 5-7. However, there was no award of attorney's fees in this matter. ECF No. 41-2. The Arbitration Award did find NPC would be responsible for payment of administrative fees and expenses ...