The opinion of the court was delivered by: Judge Caldwell
On February 3, 2009, Turkey Run Properties, L.P. ("TRP" or "plaintiff"), a Pennsylvania Limited Partnership headquartered in Montoursville, Lycoming County, Pennsylvania, initiated a civil action against Airstructures Worldwide, Ltd. ("AWW"); Arizon Companies ("AC"); Johnson Air Rotation Systems ("JARS"); Marcraft Custom Air Handling Systems ("MCAHS"); DBS International, Inc. ("DBSI"); Arizon Financial Services Co. ("AFSC"); Arizon Air, Frame and Tension Structures ("AAFTS"); Johnson Heater Corp. ("JHC"); Johnson-Marcraft, Inc. ("JM"); Arizon Structures ("AS"); Arizon Companies of Russia ("ACR"), Ltd.; Brasch Manufacturing Co. ("BMC"); Johnson Holding Corp. ("JHDC"); S & S Enterprises of St. Louis, Inc. ("SSE"); Transcontinental Holding, Ltd. ("TH"); corporations or other business entities formed in and/or that conduct business in Missouri; and Ron Scharf, Suzanne Scharf, and other unknown defendants (collectively referred to herein as "defendants"). (Rec. Doc. No. 1). In its seven-part (7) complaint, TRP set forth claims for breach of contract, breach of express warranties, breach of implied warranties, negligence, fraud in the inducement, fraud in the performance, and intentional and/or negligent misrepresentation. (See id.). The action arises out of damage suffered to an air-supported dome AWW constructed and installed for TRP in or around October of 2006 in Muncy Township, Lycoming County, Pennsylvania.(Id.).
Plaintiff filed a motion to dismiss BMC as a defendant on March 6, 2009. (Rec. Doc. No. 2). On March 9, 2009, the Honorable James F. McClure, Jr. granted the motion. (Rec. Doc. No. 4).
On April 13, 2009, defendants filed a motion to dismiss or stay and compel arbitration. (Rec. Doc. No. 8). After briefing (see Rec. Doc. No. 10; Rec. Doc. No. 13; Rec. Doc. No. 16), Judge McClure granted defendants' motion to dismiss and compel arbitration. (Rec. Doc. No.17).
A final arbitration award was issued on December 8, 2010. On January 7, 2011, the plaintiff filed a "Motion to Vacate Arbitration Award." (Rec. Doc. No. 22). The plaintiff filed a brief in support of the motion on January 21, 2011. (Rec. Doc. No. 23). The plaintiff alleges eleven instances in which "the arbitrators failed to consider material and pertinent items submitted by Plaintiff TRP to the prejudice of Plaintiff TRP . . . ." (Rec. Doc. No. 22 at 3-5). In addition, TRP alleges that its rights have been substantially prejudiced because "the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter was not made . . . ." (Id. at 3). Defendants filed a brief in opposition to the motion on February 4, 2011, stating that the motion "is procedurally improper and wholly with merit" and alleging that TRP has failed to provide any evidence or legal precedent that would support "the extraordinary relief requested." (Rec. Doc. No. 24 at 1). The plaintiff filed a reply brief on February 18, 2011. (Rec. Doc. No. 25).
Also on February 18, 2011, however, the plaintiff filed an "Amended Motion to Vacate Arbitration Award." (Rec. Doc. No. 27). The plaintiff, though, did not file a brief in support of its "Amended Motion to Vacate Arbitration Award."*fn1 As no supporting brief was filed in accordance with Middle District Local Rule 7.5, we, by Memorandum and Order dated March 18, 2011 and pursuant to Local Rule 7.5, deemed the motion to be withdrawn. We provided plaintiff with leave to file, within ten days of the date of our order, a motion for leave to file an amended motion to vacate the December 8, 2010 arbitration award.
On March 28, 2011, plaintiff filed a "Motion for Leave to File Amended Motion to Vacate Arbitration Award." (Rec. Doc. No. 29). The plaintiff filed a supporting brief on April 11, 2011. (Rec. Doc. Nos. 30, 32). Defendants filed a brief opposing the motion, also on April 11, 2011. (Rec. Doc. No. 31). Plaintiff has not filed a reply brief and, as the time for doing so has passed, the "Motion for Leave to File Amended Motion to Vacate Arbitration Award" is ripe for disposition.
In light of the following, we will deny the plaintiff's "Motion for Leave to File Amended Motion to Vacate Arbitration Award" (Rec. Doc. No. 29) and similarly deny Turkey Run's "Motion to Vacate Arbitration Award" (Rec. Doc. No. 22).
A. Motion for Leave to File Amended Motion to Vacate Arbitration
Award Although the plaintiff characterizes its "Motion for Leave to File Amended Motion to Vacate Arbitration Award" as an amendment to a pleading pursuant to Federal Rule of Civil Procedure 15, the court disagrees. Instead, the plaintiff appears to be seeking, with this motion, leave to amend its motion to vacate in light of the total collapse of the dome, which plaintiff alleges "renders the Arbitration Award moot or impossible to follow." (Rec. Doc. No. 29 at 3). Plaintiff appears therefore to be moving for relief from a final judgment or proceeding pursuant to Rule 60(b), which provides, in relevant part, as follows:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: . . .
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(5)-(6). According to Rule 81 of the Federal Rules of Civil Procedure:
These rules, to the extent applicable, govern proceedings under the following laws, except as these laws provide other procedures: . . .
(B) 9 U.S.C., relating to arbitration; . . .
Fed. R. Civ. P. 81(a)(6)(B). According to Section 10 of Title 9 of the United States Code, four grounds exist for a court to vacate an arbitration award:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the ...