United States District Court, D. Delaware
Honorable Maryellen Noreika, United States District Judge.
Bernard Katz, (“Katz”), who appears pro
se, commenced this action on February 6, 2018, against
Defendants Willie Feldman (“Feldman”),
individually, and Salem Botanicals, Inc. (“Salem
Botanicals”) alleging fraud during an arbitration
proceeding and asking the Court to set aside an arbitration
award. (D.I. 1). The matter proceeds on the Third Amended
Complaint. (D.I. 9). Katz also filed an Amended Motion to
Vacate an American Arbitration Association Award Order. (D.I.
5). The proper vehicle for a party seeking vacatur of an
arbitral award is by motion, not by filing a complaint.
See 9 U.S.C. § 1, et seq.; Pfeffer
v. Wells Fargo Advisors, LLC, 2017 WL 2269541, at 2
(S.D.N.Y. May 23, 2017). Feldman has filed an Amended
Counterclaim for judgment and lien against Katz and Telesonic
Corp. (D.I. 7).
asks the Court to set aside the arbitration award In the
Matter of the Arbitration between Salem Botanicals Inc. v.
Telesonic Packaging Corp., Case Number: 01-17-0002-9404,
heard before the American Arbitration Association Commercial
Arbitration Tribunal on January 2, 2018. (See D.I.
1; D.I. 5 at 15). The arbitrator awarded Salem Botanicals,
the Claimant, $40, 380.75 and denied Telesonic Packaging
Corp.'s counterclaim. (D.I. 5 at 15). Katz filed a
Complaint, Amended Complaint, and Third Amended Complaint in
this Court appealing the award. (D.I. 1, 4, 9). On October
29, 2018, Salem Botanicals and Angela Giampolo, both of whom
were named as defendants in the Third Amended Complaint, were
dismissed for failure to serve process pursuant to
Fed.R.Civ.P. 4(m). (See D.I. 12). Feldman is the
only defendant in this action.
not a named party in the arbitration matter. In the original
Complaint and the Amended Complaints Katz appeals the
arbitration award as “owner of Telesonic, a sole
proprietorship.” (D.I. 1; D.I. 4; D.I. 9 at 2). Courts
have allowed sole proprietors to appear pro se on
behalf of their business entity. See Lattanzio v.
COMTA, 481 F.3d 137, 140 (2d Cir. 2007).
“Telesonic” is not a party to the underlying
Motion and Amended Motion to Vacate the Arbitration Award
were filed by Katz as “owner of Telesonic Packaging
Corporation, ” and seek to vacate the arbitration
award. (D.I. 3, 5 at 2). Telesonic Packaging Corp. is the
Respondent in the arbitration matter. The word
“Corporation” or the abbreviation
“Corp.” connotes a corporation, not a sole
proprietorship. See e.g., Winkler v.
Andrus, 594 F.2d 775, 777 (10th Cir. 1979). A
corporation may appear in the federal courts only through
licensed counsel. See Rowland v. California Men's
Colony, 506 U.S. 194, 201-02 (1993). Katz, a
non-attorney, may not represent the interests of a
corporation in this Court.
who also appears pro se, filed a counterclaim
against Katz (D.I. 6) which he later amended (D.I. 7).
Feldman is a managing member of Salem Botanicals.
(Id. at 10). Like Katz, he was not a party to the
arbitration. The Amended Counterclaim asks the Court to
confirm the arbitration award in favor of Salem Botanicals,
and enter judgment against Katz and Telesonic Corp. in the
amount of the arbitration award. Like Katz, Feldman is not an
attorney, and he may not represent the interests of a
corporation in federal court.
Court has the inherent authority to manage the cases on its
docket “with economy of time and effort for itself, for
counsel, and for litigants. How this can best be done calls
for the exercise of judgment, which must weigh competing
interests and maintain an even balance.” Landis v.
North Am. Co., 299 U.S. 248, 254-55 (1936). In addition,
“district courts have the inherent authority to manage
their dockets and courtrooms with a view toward the efficient
and expedient resolution of cases.” Dietz v.
Bouldin, 136 S.Ct. 1885, 1892 (2016). Finally, the Court
has broad discretion in deciding whether to dismiss an action
with prejudice pursuant to its inherent authority to manage
its docket. See Lee v. Krieg, 227 F. App=x 146, 148
(3d Cir. 2007) (“We reiterate that the court has broad
discretion in deciding whether to dismiss an action with
prejudice under Rule 41(b) or pursuant to its inherent
authority to manage its docket.”).
Proper Parties and Jurisdiction
Typically, the proper parties to a suit challenging an
arbitration award are the same as those in the underlying
arbitration proceeding. See e.g., Pham v.
Financial Industry Regulatory Auth., Inc., 2013 WL
633398, at *3 (N.D. Cal. Feb. 20, 2013) (proper challenge to
an award is an action to vacate it brought against the other
party, the real adversary). The arbitration award was issued
in favor of Claimant Salem Botanicals, named as a defendant
in this action, but who was not served, and has been
dismissed. Before a federal court may exercise personal
jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied. Omni Capital
Int'l, Ltd. v. Rudolf Wolff & Co. Ltd., 484 U.S.
97, 104 (1987). Because Salem Botanicals was never served,
the Court does not have jurisdiction over it.
who was not a party to the underlying arbitration proceeding,
is the sole defendant. Plaintiff alleges that he is the
“owner” of Salem Botanicals, while Feldman
indicates that he is its managing member. To the extent Katz
seeks to recover from Feldman personally, in essence, he asks
the Court to pierce Salem Botanicals' corporate veil. The
pleadings do not indicate this issue was presented at
arbitration and, ...