Case 1:21-cv-08082-LGS Document 23 Filed 01/03/22 Page 1 of 4
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`Plaintiff,
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`21 Civ. 8082 (LGS)
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`ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`HAO ZHE WANG,
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`-against-
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`SKYPE COMMUNICATIONS S.A.R.L, et al.,
`Defendants.
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`LORNA G. SCHOFIELD, District Judge:
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`WHEREAS, on September 28, 2021, pro se Plaintiff filed a Complaint alleging claims
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`previously litigated in an arbitration proceeding;
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`WHEREAS, on October 11, 2021, Plaintiff filed a motion to vacate the arbitrator’s award
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`in the arbitration proceeding. The award was issued on July 13, 2021, and denied all of
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`Plaintiff’s claims;
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`WHEREAS, Defendants were served with the Complaint on November 15, 2021;
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`WHEREAS, Defendants filed a pre-motion letter regarding (1) a cross-motion to confirm
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`the arbitrator’s award, (2) their arguments in opposition to the motion to vacate and (3) in the
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`alternative, arguments in favor of dismissal of the Complaint on res judicata grounds;
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`WHEREAS, the Complaint is construed as a motion to vacate the arbitrator’s award. See
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`Pfeffer v. Wells Fargo Advisors, LLC, No. 16 Civ. 8321, 2017 WL 2269541, at *1 (S.D.N.Y.
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`May 23, 2017) (construing pro se complaint as a motion to vacate an arbitration award), aff’d,
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`723 F App’x 45 (2d Cir. 2018); Lobaito v. Chase Bank, No. 11 Civ. 6883, 2012 WL 3104926, at
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`*5 (S.D.N.Y. July 30, 2012) (same), aff’d, 529 F. App’x 100 (2d Cir. 2013);
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`WHEREAS, Plaintiff’s request to vacate the arbitrator’s award is denied as untimely. The
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`arbitrator’s award was issued on July 13, 2021. Under 9 U.S.C. § 12, a “[n]otice of motion to
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`Case 1:21-cv-08082-LGS Document 23 Filed 01/03/22 Page 2 of 4
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`vacate, modify, or correct an award must be served upon the adverse party . . . within three
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`months after the award is filed or delivered.” “Courts in this circuit have found that this three-
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`month limitation is a statute of limitations and the failure to bring a timely motion is an absolute
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`bar to an application seeking vacatur or modification.” Tarulli v. Ameriprise Fin. Servs., No. 19
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`Civ. 2039, 2020 WL 9219110, at *2 (S.D.N.Y. Apr. 14, 2020) (citing cases) (internal quotation
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`marks omitted), R. & R. adopted, 2020 U.S. Dist. LEXIS 175763 (S.D.N.Y. Sept. 24, 2020). The
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`law does not provide an exception to the three-month bar, even for pro se cases. Id. Plaintiff
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`served the Complaint, which is construed as a motion to vacate, well after the three-month
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`deadline and did not otherwise serve the motion to vacate, so the law prevents the Court from
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`hearing Plaintiff’s motion to vacate the July 13, 2021, award;
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`WHEREAS, even if the Complaint were not construed as a motion to vacate, the
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`Complaint would be dismissed because the claims raised in the Complaint are barred by the
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`doctrine of res judicata. Res judicata, also referred to as claim preclusion, bars “certain claims in
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`federal court based on the binding effect of past determinations in arbitral proceedings.” Pike v.
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`Freeman, 266 F.3d 78, 90 (2d Cir. 2001); accord Caron v. TD Ameritrade, No. 19 Civ. 9015,
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`2020 WL 7027593, at *5 (S.D.N.Y. Nov. 30, 2020). All of the requirements for res judicata have
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`been met. First, “the previous action involved an adjudication on the merits;” second, “the
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`previous action involved the plaintiff[]” and third, “the claims asserted in the subsequent action
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`were, or could have been, raised in the prior action.” Monahan v. New York City Dep’t of Corr.,
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`214 F.3d 275, 285 (2d Cir. 2000); accord Curry-Malcolm v. Rochester City Sch. Dist., No. 20-
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`2808, 2021 WL 5764534, at *2 (2d Cir. Dec. 6, 2021) (summary order).
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`WHEREAS, Defendants’ motion to confirm is granted. “The confirmation of an
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`arbitration award is a summary proceeding that merely makes what is already a final arbitration
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`Case 1:21-cv-08082-LGS Document 23 Filed 01/03/22 Page 3 of 4
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`award a judgment of the court.” Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984);
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`accord Seneca Nation of Indians v. New York, 988 F.3d 618, 625 (2d Cir. 2021). “[T]he court
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`must grant [a request to confirm an award] unless the award is vacated, modified, or corrected as
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`prescribed [in the United States Code].” 9 U.S.C. § 9; accord Seneca Nation of Indians, 988 F.3d
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`at 625. “When the three month limitations period has run without vacation of the arbitration
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`award, the successful party has a right to assume the award is valid and untainted, and to obtain
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`its confirmation in a summary proceeding.” Florasynth, 750 F.2d at 177 (emphasis added);
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`accord HRB Prof’l Res. LLC v. Bello, No. 17 Civ. 7443, 2018 WL 4629124, at *4 (S.D.N.Y.
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`Sept. 27, 2018). The three-month limitations period in this case expired on October 13, 2021.
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`Plaintiff did not serve notice of a motion to vacate or modify the Award before that date and does
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`not now raise any legal issue (such as lack of jurisdiction, or expiration of a statute of limitations
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`for confirmation) that deprives this Court of the ability to summarily confirm the Award. See
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`Barclays Cap. Inc. v. Hache, No. 16 Civ. 315, 2016 WL 3884706, at *1 (S.D.N.Y. July 12,
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`2016).
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`Plaintiff’s arguments for vacatur are untimely, so they cannot preclude confirmation of the
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`award under the law. The three-month deadline contained in 9 U.S.C. § 12 is not subject to
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`extension. “[A] party may not raise a motion to vacate, modify, or correct an arbitration award
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`after the three month period has run, even when raised as a defense to a motion to confirm.”
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`Florasynth, 750 F.2d at 175; Wells Fargo Advisors, LLC v. Mercer, 735 Fed. App’x 23, 24 (2d
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`Cir. 2018) (summary order). Accordingly, each of Plaintiff’s arguments for vacatur of the Award
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`are untimely and must be disregarded. It is hereby
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`ORDERED that Plaintiff’s motion to vacate the arbitrator’s award is DENIED, and
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`Defendants’ motion to confirm the arbitrator’s award is GRANTED. It is further
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`Case 1:21-cv-08082-LGS Document 23 Filed 01/03/22 Page 4 of 4
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`ORDERED that if Defendants seek to seal the materials referenced in the Plaintiff’s
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`request at docket number 7, they shall file a letter by January 10, 2022, providing the basis for
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`sealing under the Second Circuit’s standard in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
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`110 (2d Cir. 2006). It is further
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`ORDERED that all conferences are CANCELLED.
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`The Clerk of Court is respectfully directed to close the motion at Dkt. No. 5 and to close
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`the case.
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`Dated: January 3, 2022
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`New York, New York
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