Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-19-2005
Greenwich Ins Co v. Goff Grp Inc
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3096
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3096
GREENWICH INSURANCE COMPANY;
XL SPECIALITY INSURANCE COMPANY
v.
GOFF GROUP, INC.,
Appellant
_______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cv-02441)
District Judge: Honorable Edmund V. Ludwig
Submitted Under Third Circuit LAR 34.1(a)
on September 23, 2005
Before: ROTH, MCKEE and FISHER, Circuit Judges
(Opinion filed: December 19, 2005)
OPINION
ROTH, Circuit Judge
This is an appeal from the District Court’s order denying relief pursuant to Fed. R.
Civ. P. 60(b). For the reasons stated below, we will affirm the decision of the District
Court.
I. Factual Background and Procedural History
As the situation is well known to the parties, we give only an abbreviated
description of the facts and procedural posture of the case.
Appellant, Goff Group, Inc., (Goff) agreed to manage the underwriting of workers’
compensation and employers’ liability insurance for appellees, Greenwich Insurance
Company and XL Specialty Insurance Company (together XL). In this capacity, Goff
was responsible for collecting and holding premiums in a segregated trust pending
remittance. A dispute arose regarding Goff’s treatment of these funds.
On August 7, 2002, XL commenced arbitration proceedings against Goff under the
terms of their Program Manager’s Agreement. The next day, Goff successfully brought
suit in Alabama state court for a temporary restraining order after XL suspended Goff’s
underwriting authority. The suit was removed to the United States District Court for the
Middle District of Alabama which granted XL’s subsequent motion to compel arbitration
and dissolve the state court’s injunction. An arbitration panel was convened in the spring
of 2003.
While arbitration was pending in Philadelphia1 under the terms of the Program
Manager’s Agreement, XL commenced a proceeding before the United States District
1
The Panel sat in New York at the request of the arbitrators but was deemed to be in
Philadelphia as required by the Program Manager’s Agreement.
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Court for the Eastern District of Pennsylvania seeking ancillary relief regarding Goff’s
handling of the funds pending arbitration. On April 28, 2003, the District Court granted
the relief sought by XL and retained jurisdiction over the matter. In an order dated
October 3, 2003, the District Court placed the proceedings in suspense pending
arbitration.
Goff sought a stay of arbitration before the arbitration panel, before an Alabama
state court, and before the District Court in the Middle District of Alabama, all of which
were denied. On March 10, 2004, the arbitration panel directed Goff to pay XL
$4,332,382.00 in damages. XL filed a motion before the District Court in the Eastern
District of Pennsylvania to confirm the arbitration award pursuant to the Program
Manager’s Agreement which specifically provided for confirmation in the Eastern
District of Pennsylvania. The motion was served by overnight delivery to Goff’s counsel
of record, John Fabiani. Goff declined to submit any opposition to the motion. Rather,
Goff filed a motion to vacate the award in the District Court in the Middle District of
Alabama.
On April 23, 2004, the District Court in the Eastern District of Pennsylvania issued
a confirmation order and judgment. On May 3, 2004, Goff moved to vacate the
confirmation award pursuant to Fed. R. Civ. P. 60(b)(6). On July 9, 2004, the District
Court denied Goff’s motion and this appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have
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appellate jurisdiction under 28 U.S.C. § 1291.
We review motions for relief pursuant to Fed. R. Civ. P. 60(b) for an abuse of
discretion. Coltec Indus. Inc. v. Hobgood, 280 F.3d 262, 269 (3d Cir. 2002). An abuse of
discretion my be found when the lower court’s decision “rests upon a clearly erroneous
finding of fact, an errant conclusion of law or an improper application of law to fact.”
Reform Party of Allegheny County v. Allegheny County Dept. of Elections., 174 F.3d
305, 311 (3d Cir. 1999) (quoting International Union, UAW v. Mack Trucks, Inc., 820
F.2d 91, 95 (3d Cir. 1987)).
III. Discussion
Relief from a judgement, such as a confirmation order, may be granted pursuant to
Rule 60(b)(6) for “any ... reason justifying relief from the operation of the judgment.”
Fed. R. Civ. P. 60(b)(6). Such relief can only be granted under extraordinary
circumstances, where an extreme and unexpected hardship would otherwise occur.
Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993). Also, Rule 60(b)(6) does
not provide relief for “calculated and deliberate” litigation choices which, in hindsight,
were erroneous. Ackermann v. United States, 340 U.S. 193, 198 (1950).
Goff offers two purported extraordinary circumstances justifying relief under Rule
60(b)(6). First, Goff contends that it was not properly served the motion to confirm under
the Federal Arbitration Act (FAA). Specifically, Goff argues that as a non-resident of the
state where the arbitration occurred, service was invalid because it was not executed by a
United States Marshal. See 9 U.S.C. § 9 (“If the adverse party shall be a nonresident,
4
then the notice of the application shall be served by the marshal of any district within
which the adverse party may be found in like manner as other process of the court.”). In
this case, Goff was served by delivery of the motion to its counsel of record, John
Fabiani, via Federal Express. See generally Fed. R. Civ. P. 5(b)(1) (“[s]ervice ... on a
party represented by an attorney is made on the attorney unless the court orders service on
the party.”).
Service by mail on Goff’s attorney was proper. Service of a motion to confirm the
arbitration award by a U.S. Marshal is unnecessary where a party is already before the
court. Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698, 707 (2d Cir. 1985); see also
Fed R. Civ. P. 5(a) (distinguishing between the complaint and subsequent pleadings).
Since Goff was before the District Court in the Eastern District of Pennsylvania and that
court had explicitly maintained jurisdiction in the matter after granting XL ancillary relief
and staying its proceedings, service by mail on Goff’s attorney of record was permissible
under Fed. R. Civ. P. 5(b)(1) & (b)(2)(B).
Second, Goff argues that it was “fundamentally unfair” for the District Court in
Pennsylvania to grant the motion to confirm without considering the later-filed motion to
vacate the award pending before the District Court in the Middle District of Alabama.
Goff fails to cite any authority for the proposition that a later-filed motion to vacate in one
court divests another district court of jurisdiction to hear a motion to confirm. Thus, the
District Court was correct when it noted that the “pendency of a later-filed motion to
vacate the arbitration award in the Alabama District Court did not divest this court of
5
jurisdiction over the motion to confirm.” District Court Order (July 9, 2004).
Moreover, the FAA authorizes district courts to confirm arbitration awards when
the parties agreed to have the arbitration award entered as a judgment by the court. Isidor
Paiewonsky Assoc., Inc. v. Sharp Prop. Inc., 998 F.2d 145, 154 n. 11 (3d Cir. 1993); 9
U.S.C. § 9. Here, the parties agreed to confirmation in the Eastern District of
Pennsylvania. Therefore, the District Court’s exercise of jurisdiction was proper.
Finally, none of the alleged prejudices suffered by Goff rise to the level of
“extraordinary circumstances.” For example, Goff does not dispute that it received notice
of the motion to confirm, only that service was improper. Goff’s decision not to
challenge the motion to confirm in the Eastern District of Pennsylvania was a calculated
litigation maneuver which is not entitled to reversal via the mechanism of Rule 60(b)(6).
Ackermann, 340 U.S. at 198.
IV. Conclusion
For the reasons explained above, the District Court’s order denying relief pursuant
to Fed. R. Civ. P. 60(b) is affirmed.
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