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Braunhagey & Borden LLP v. GMP Hawaii, Inc.

United States District Court, N.D. California

January 27, 2014

BRAUNHAGEY & BORDEN LLP, Petitioner,
v.
GMP HAWAII, INC., et al., Respondents.

ORDER FOR CLERK OF COURT TO REASSIGN CASE REPORT & RECOMMENDATION INTRODUCTION

MARIA-ELENA JAMES, Magistrate Judge.

On November 12, 2013, Petitioner BraunHagey & Borden LLP ("BHB") filed this petition seeking enforcement of an arbitration award in favor of BHB and against Respondents GMP Hawaii, Inc., GMP Associates, Inc., and Ohio Pacific Tech, Inc. (collectively, "GMP"). Dkt. No. 1. BHB subsequently filed a Petition to Confirm Arbitration Award on November 12, 2013. Dkt. No. 9. As GMP failed to file an opposition or otherwise appear in this case, the Court ordered GMP to show cause why it should not grant Petitioner's Motion and enter final judgment. Dkt. No. 13. The Court provided notice to GMP that it may enter judgment if GMP failed to respond by the deadline. As of the date of this Order, GMP has not responded to either BHB's Petition or the Order to Show Cause.

Because GMP has neither appeared in this matter nor consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c), this matter will be reassigned to a district judge with the following report and recommendation for confirmation of the arbitration award.

BACKGROUND

In August 2008, GMP was sued in Guam District Court for negligently designing a water tower that collapsed at an Air Force base in Guam (the "Construction Defect Action"). Fickes Decl. ¶ 2. Dkt. No. 9-1. In February 2011, GMP's insurer, Lexington Insurance Co. ("Lexington"), filed an arbitration before the AAA in Massachusetts, claiming it had no duty to defend GMP in the Construction Defect Action (the "Coverage Dispute"). Id. at ¶ 3.

In March 2011, GMP asked BHB to represent GMP in the Coverage Dispute. Id. ¶ 4. On or about March 21, 2011, BHB and GMP entered into a retainer agreement pursuant to which GMP retained BHB to assist in the litigation and/or arbitration of the coverage dispute between GMP and Lexington (the "First Retainer Agreement"). Id.

The First Retainer Agreement contained an arbitration clause that required the parties to submit all disputes arising out of or related to BHB's engagement to a final and binding arbitration before JAMS in San Francisco:

ARBITRATION OF DISPUTES. Any dispute arising out of or relating to this Agreement or the Firm's performance of legal services hereunder, including any disagreement among or between any of you relating to this Agreement, shall be resolved exclusively by final, binding and confidential arbitration before JAMS to be conducted by a single arbitrator with experience as a judge. The arbitration will be conducted at a location determined by the arbitrator in San Francisco, and administered by and in accordance with the then existing Streamlined Rules of Practice and Procedure of JAMS (a copy of these rules will be furnished to you upon request). In rendering the award, the arbitrator shall determine the rights and obligations of the parties according to the substantive and procedural laws of California, and shall have all equitable and injunctive powers, including regarding each party's confidentiality obligations under their joint defense agreement. Arbitration pursuant to this provision shall be the exclusive means for resolving any dispute arising out of or relating to this Agreement or the Firm's performance of legal services hereunder. You acknowledge that by agreeing to arbitration, you are giving up the right to a jury trial. Judgment on any arbitration award may be entered by any court of competent jurisdiction.

Id. ¶ 5.

In June 2011, GMP's counsel in the Construction Defect Action withdrew as counsel in that case. Id. ¶ 6. GMP asked BHB to represent GMP in the Construction Defect Action. Id. On June 20, 2011, the parties executed a second engagement agreement (the "Second Retainer Agreement"). Id. Like the First Retainer Agreement, the Second Retainer Agreement contained an identical arbitration clause:

ARBITRATION OF DISPUTES. Any dispute arising out of or relating to this Agreement or the Firm's performance of legal services hereunder, including any disagreement among or between any of you relating to this Agreement, shall be resolved exclusively by final, binding and confidential arbitration before JAMS to be conducted by a single arbitrator with experience as a judge. The arbitration will be conducted at a location determined by the arbitrator in San Francisco, and administered by and in accordance with the then existing Streamlined Rules of Practice and Procedure of JAMS (a copy of these rules will be furnished to you upon request). In rendering the award, the arbitrator shall determine the rights and obligations of the parties according to the substantive and procedural laws of California, and shall have all equitable and injunctive powers, including regarding each party's confidentiality obligations under their joint defense agreement. Arbitration pursuant to this provision shall be the exclusive means for resolving any dispute arising out of or relating to this Agreement or the Firm's performance of legal services hereunder. You acknowledge that by agreeing to arbitration, you are giving up the right to a jury trial. Judgment on any arbitration award may be entered by any court of competent jurisdiction.

Id.

In reliance on GMP's execution of the retainer agreements, BHB proceeded to successfully defend GMP in the Construction Defect Action. Mot. at 3. Despite BHB's efforts, GMP did not honor its promise to pay BHB for its legal services. Id.

On September 4, 2012, BHB initiated an arbitration before JAMS in San Francisco, styled BraunHagey & Borden LLP v. GMP Hawaii, Inc., GMP Associates, Inc., and Ohio Pacific Tech, Inc., JAMS Reference No. 1100071579 (the "Arbitration"). Fickes Decl. ¶ 7. On October 5, 2012, the Honorable Demetrios P. Agretelis (Ret.) was appointed as the Arbitrator. Id. The Arbitrator heard evidence and argument on August 28, 2013, and post-hearing briefing was completed on October 1, 2013. Id. On October 24, 2013, the Arbitrator issued an award in BHB's favor, awarding BHB all the legal fees ...


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