United States District Court, D. Colorado
KRISTEN L. MIX MAGISTRATE JUDGE
matter is before the Court on Petitioner's
Petition to Confirm Arbitration Award
(the “Petition”) and Respondent's
Opposition to Confirm Arbitration Award and
Cross-Motion to Vacate Arbitration Award [#12-1]
(the “Cross-Motion”). Petitioner filed a combined
Response [#15] in opposition to the Cross-Motion [#12-1] and
Reply [#15] in support of his Petition [#1]. Respondent also
filed a Reply [#13] in support of its Cross-Motion [#12-1].
The Court has carefully considered these briefs, the entire
case file, and the applicable case law. For the following
reasons, the Petition [#1] is GRANTED in
part and DENIED in part, and the
Cross-Motion [#12-1] is
September 22, 2008, Petitioner signed a New Account Form with
Respondent's then-registered representative, John Stevens
(“Stevens”). See Petition, Ex. 1 [#1-1].
The New Account Form signed by Petitioner and Mr. Stevens (on
behalf of Respondent) contained an arbitration provision
pursuant to which “[a]ll parties to this agreement are
giving up the right to sue each other in court, including the
right to a trial by jury, except as provided by the rules of
the arbitration forum in which a claim is filed.”
Id. The arbitration provision contained a number of
agreed guidelines for the arbitration, including that
“the arbitrators do not have to explain the reason(s)
for their award.” Id.
addition to the arbitration provision, the New Account Form
also included a separate provision titled “Governing
Law.” Id. This section of the agreement stated
that the “agreement shall be governed by the laws of
the State of Oklahoma, exclusive of that state's
choice-of-law provisions.” Id. The Governing
Law section also included a sentence stating:
[t]he provisions of this Agreement shall be continuous and
cover individually and collectively all accounts which the
undersigned may open or reopen with you and shall inure to
the benefit of yourselves, your successors and assigns and
shall be binding upon the undersigned and/or the estate,
executors, administrators and assigns of the undersigned.
on the record, at some point in 2012, Petitioner received an
overall return on investment of almost 4.9%, which was short
of the 7% promised by Mr. Stevens. Pre- Hearing
Brief [#7-10] at 4. On February 2, 2016, Petitioner
initiated arbitration against Respondent by filing a
Statement of Claim (the “Claim”).
Cross-Motion [#12-1] at 3. The arbitration was
conducted before a Financial Industry Regulation Authority
(“FINRA”) panel of three arbitrators (the
“Panel”). Id. Respondent denied the
allegations in its Response [#7-2] to the Claim on April 5,
2016, later amended on April 28, 2016.
the arbitration, Respondent filed a Motion to Dismiss [#7-3]
arguing that Petitioner's claims were barred by
FINRA's six-year statute of limitations. Although
Respondent here represents that the Motion to Dismiss [#7-3]
“laid the groundwork for [the statute of limitations]
arguments, ” the Motion to Dismiss did not reference
state statutes of limitations, but instead relied exclusively
on FINRA Rule 12206. Cross-Motion [#12-1] at 11.
December 3, 2016, Respondent's counsel, John Gibson
(“Gibson”), stated via affidavit that he
experienced a condition known as spinal stenosis and that he
had been scheduled for emergency surgery on December 6, 2016.
Aff. of Gibson [#7-4] at 1. Mr. Gibson's
affidavit stated that, in the best case scenario, he could
“return to light work as early as January and may be
able to travel towards the end of February or March.”
Id. at 2-3. Mr. Gibson underwent heart surgery on
December 19, 2016, and underwent spinal surgery on December
26, 2016. Cross-Motion [#12-1] at 4.
December 7, 2016, the Panel held a telephonic hearing to rule
on Respondent's request for a continuance of the hearing
on the Motion to Dismiss [#7-3]. Id. at 5. The Panel
continued the evidentiary hearing and rescheduled it for
January 24, 2017. Id. On January 17, 2017, one week
before the evidentiary hearing, Respondent filed a motion pro
se to adjourn both the January 24, 2017 evidentiary and
Motion to Dismiss [#7-3] hearings. See [#7-6]. On
January 18, 2017, the Panel granted Respondent's request
to postpone the hearings. Order [#10-2].
January 24, 2017, the Panel held a conference call to discuss
Mr. Gibson's health and to reschedule the evidentiary and
Motion to Dismiss [#7-3] hearings. Order [#10-3].
Mr. Gibson participated in the conference call, and the
evidentiary hearing was rescheduled for April 10, 2017.
Id. The Motion to Dismiss [#7-3] hearing was held on
February 7, 2017, with Mr. Gibson again participating.
Order [#10-4]. The Panel denied Respondent's
Motion to Dismiss [#7-3]. Id. On March 8, 2017, Mr.
Gibson withdrew from representing Respondent. Award
[#7-11] at 3.
to the final evidentiary hearing, Respondent raised
“Standing Objections” in its Pre-Hearing Brief.
See Pre-Hearing Brief [#7-10] at 9. Specifically,
the objections are:
Respondent is without its attorney who cannot physically
conduct his duties and objects to these proceedings on the
grounds that it violates the National Arbitration Act and is
a deprivation of the right to be represented by counsel.
Respondent incorporates all previous filings in this case
from December 1st, 2016 forward as if included
herein to document this objection.
Claimant is time barred under FINA Rule 12206 from bringing
her [sic] claims and as a result FINA Arbitration has no