the instant complaint until the arbitration had been had. Not only so, but the New Jersey Imermans as plaintiffs, themselves sought to take advantage of the provisions of Section 3 of the Federal Arbitration Act, by contending for almost an entire day before this Court that the Unions were in default in proceeding with the arbitration, a default which would have forfeited the Unions' right to such stay. Again, the present motion by plaintiffs is one asking this Court 'for an order confirming the award,' the exact procedure provided in Section 9 of the Federal Arbitration Act.
Having sought to take advantage of a remedy furnished by the Congress, no party can be heard to object to the conditions which Congress has affixed to such remedy. United States ex rel. Texas Portland Cement Co. v. McCord, 1914, 233 U.S. 157, 163, 34 S. Ct. 550, 58 L. Ed. 893; Montana Power Co. v. United States, D.C.N.J.1954, 121 F.Supp. 577, affirmed, 3 Cir., 1956, 232 F.2d 541; 1 A.J., Actions, Sec. 11, page 410. Further, not only have the parties here adopted the Federal Arbitration Act as their mode of procedure, so that it would be quite anomalous to permit one of them, while this procedure was still going on, to drop it and adopt the differing procedure of a State Arbitration Act, leaving the other side hanging in the air, but, according to the recent decision of Local 205 U.E., etc. v. General Electric, 1 Cir., 1956, 233 F.2d 85, there are added reasons why the parties can do no such thing. The Imermans' complaint in this Court was based on the violation of a collective bargaining contract under above Section 301. This Court obtains jurisdiction of such proceeding not because of diversity, as in Bernhardt v. Polygraphic Co., 1956, 350 U.S. 198, 76 S. Ct. 273, but because Section 301 bases the matter on a Federal question. This Court proceeds as to this Federal question, not under Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, to apply State law, but to apply Federal law to this Federal question. The only Federal arbitration law applicable is the Federal Arbitration Act, to which the parties here are thus confined.
Turning to the Federal Arbitration Act under which the parties are thus proceeding, in the very section providing for 'an order confirming the award,' we find the provision that if, as here, 'no court is specified in the agreement of the parties,' as the one which should grant an order confirming the award, then 'such application may be made to the United States court in and for the district within which such award was made.' The record shows that the award was made in fact in New York City, i.e., within the jurisdiction of the United States District Court for the Southern District of New York, not within the jurisdiction of this Court.
Since the Congress has conditioned the confirmation of an award upon an application, under the present circumstances, solely to the Southern District of New York, it is clear that this Court is without power to act under the circumstances, at least if plaintiffs are simply making a motion to confirm the award -- the very way their moving papers read.
Plaintiffs claim, however, that this Court should disregard their papers, and consider their application, not as a mere motion to confirm an award -- a summary method, authorized by Congressional action, to turn an arbitration award into a judgment -- but should consider the present proceedings as if they were an application to enter judgment after verdict in the plenary action originally brought, and now stayed under the Federal Arbitration Act. However, not only is this assumption contrary to plaintiffs' own words, but the authority they cite therefor is inapplicable. In support, they rely upon the following words in Murray Oil Products Co. v. Mitsui & Co., 2 Cir., 1944, 146 F.2d 381, 383:
'It would be a lame and impotent conclusion in that event to require the successful plaintiff to begin a new action on the award. Arbitration is merely a form of trial, to be adopted in the action itself, in place of the trial at common law: it is like a reference to a master, or an 'advisory trial' under Federal Rules of Civil Procedure (28 U.S.C.A.) * * *. That is the whole effect of § 3.'
But these very quoted words were later stated by the United States Supreme Court not to be the law. In Bernhardt v. Polygraphic Co., supra, 350 U.S. at page 203, 76 S. Ct. at page 276, the Supreme Court said:
'The Court of Appeals, in disagreeing with the District Court as to the effect of an arbitration agreement under Erie Railroad Co. v. Tompkins, followed its earlier decision of Murray Oil Products Co. v. Mitsui & Co. * * * which held that, 'arbitration is merely a form of trial, to be adopted in the action itself, in place of the trial at common law: it is like a reference to a master, or an 'advisory trial' under Federal Rules of Civil Procedure * * *.'
'We disagree with that conclusion.'
In the next place, Mitsui did not involve the crucial question here involved, as to the necessity for a party using a Congressional remedy to comply with the conditions which the Congress affixed to such remedy. For in Mitsui, instead of the confirmation of the award being sought in a district other than that 'within which such award was made', the award there was sought in the very district where 'such award was made.' So the Court in Mitsui did not have before it the crucial difficulty with which the Imermans are here faced.
Nor does this Congressional condition render plaintiffs' relief so futile that such condition cannot be assumed to be the intent of the Congress. For in Section 9 the Congress has expressly provided that 'If the adverse party shall be a nonresident' of the district where the application for the order confirming the award is sought 'then the notice of the application shall be served by the Marshal of any district within which the adverse party may be found * * *.' Indeed, if, contrary to the above, this Court were to regard the present action before it as a plenary one, so as to proceed thereunder to confirm the award, such a remedy itself might well the futile, since the International is no longer a party to such action. As to the claim of waiver by the Unions of the objection to this Court's lack of power, even treating same as a matter of venue, and thus waivable, the Unions did only what they were compelled to do by Section 3 of the Federal Arbitration Act. They could not obtain their stay elsewhere. Hence there was no 'voluntary relinquishment of a known right' -- the essence of waiver.
Since the decision of this threshold question thus renders immaterial the decision of the many other issues presented by the parties, same will not be discussed.
Plaintiffs' motion for an order confirming the award is denied. An order may be entered accordingly.
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