United States District Court, D. Colorado
DISH NETWORK L.L.C., a Colorado limited liability company Plaintiff,
OPEN ORBIT CORPORATION, a New York Company and SUJIT GHOSH, an individual resident of New York Defendants.
MEMORANDUM OPINION AND ORDER
T. BABCOCK, JUDGE
case is before me on Plaintiff DISH Network LLC's amended
application to confirm an arbitration award. (ECF No. 38.)
DISH asks this Court to enforce an arbitration award against
Defendant Sujit Ghosh even though he was not a party to the
initially reviewing the application and Mr. Ghosh's pro
se response, I entered a show cause order asking DISH to show
cause why this case should not be sent to arbitration in
light of an arbitration provision in the relevant contract
between DISH and Mr. Ghosh. DISH argues that a second
arbitration is not needed because of a prior arbitration
award in its favor against Defendant Open Orbit Corporation
and Mr. Ghosh's promise to guarantee Open Orbit's
performance. (ECF No. 38-2 at 1.)
conclude that even though Mr. Ghosh was not a party to the
arbitration between DISH and Open Orbit, the award can be
enforced against him under the unique factual circumstances
of this case. I thus GRANT DISH's application.
operates a direct broadcast satellite system and broadcasts
movies, sports, and general entertainment programming to
consumers who pay a subscription fee to DISH. Open Orbit was
an authorized retailer for DISH, meaning it was allowed to
market, promote, and solicit orders for DISH.
become a retailer for DISH, Open Orbit signed a “DISH
Network Retailer Agreement, ” which set forth the terms
of the relationship between DISH and Open Orbit. (ECF No.
38-1.) To “induce [DISH] to enter into the DISH Network
Retailer Agreement” with Open Orbit, Mr. Ghosh signed a
personal guaranty in which he “personally,
unconditionally and irrevocably guarantee[d] the full and
timely performance of and by [Open Orbit] for all purposes
under the Retailer Agreement.” (ECF No. 38-2 at 1.)
2015, DISH initiated arbitration against Open Orbit for
various violations of the retailer agreement. A few months
later, Mr. Ghosh asked the arbitrator to remove his name from
the pending arbitration because he was neither an officer nor
a shareholder of Open Orbit and to “nullify” his
personal guaranty. (ECF No. 38-3.) The arbitrator denied Mr.
Ghosh's request to nullify his personal guaranty, as well
as his repeated requests for reconsideration. (ECF Nos. 38-3,
38-4, 38-5.) However, the arbitrator recognized that Mr.
Ghosh was “not a party to this arbitration.” (ECF
2016, the arbitrator held an evidentiary hearing regarding
DISH's claims against Open Orbit. Neither Mr. Ghosh nor
Open Orbit appeared at the hearing. After the hearing, the
arbitrator awarded DISH $220, 609.54, comprised of $177,
817.24 in actual damages and $42, 792.30 in administrative
expenses, costs and attorneys' fees. (ECF No. 38-7 at 2.)
The arbitrator also awarded post-judgment interest.
Id. The award was “in favor of Claimant DISH
Network L.L.C., as against Respondent Open Orbit
filed a motion to confirm the arbitration award with this
Court under the Federal Arbitration Act (ECF No. 1), and Mr.
Ghosh filed a motion for relief from the award (ECF No. 7).
Magistrate Judge Shaffer recommended granting the motion to
confirm the arbitration award against Open Orbit and entering
default judgment against Open Orbit, which had not appeared
in this Court to defend the case. (ECF No. 28.) With respect
to Mr. Ghosh, Magistrate Judge Shaffer recommended granting
his motion (in pertinent part) and dismissing the claim
against him under Federal Rule of Civil Procedure 12(b)(6)
without prejudice. (Id.) Judge Shaffer reasoned that
because Mr. Ghosh was not a party to underlying arbitration
and because DISH had not argued the award should be enforced
against him as a non-party, its application to enforce the
award against Mr. Ghosh was deficient. (Id. at 2-8).
I accepted Judge Shaffer's recommendations in full. (ECF
then filed an amended application to enforce the award,
arguing that in light of Mr. Ghosh's personal guaranty,
this Court should enforce the arbitration award against him
even though he was not a party to the underlying arbitration.
Mr. Ghosh opposed the amended application. After reviewing
those materials, I entered a show cause order directing DISH
to address why the case should not be sent back to
arbitration, consistent with arbitration provision in the
personal guaranty signed by both DISH and Mr. Ghosh. (ECF No.
42.) Both DISH and Mr. Ghosh responded to the show cause
order. (ECF Nos. 43-44.)
an arbitration award is usually perfunctory. As provided in
section nine of the Federal Arbitration Act
(“FAA”), a party submits an application, the
district court reviews the award, and the district court
“must” grant the application except in unusual
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 unless ...