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TM MKTG. v. ART & ANTIQUES ASSOCS.

September 14, 1992

TM MARKETING, INC., Plaintiff,
v.
ART & ANTIQUES ASSOCIATES, L.P., Defendant.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 Currently before the court is the motion of plaintiff TM Marketing, Inc. ("TM Marketing") to confirm an arbitration award (the "Award") in favor of TM Marketing, and to direct that judgment be entered requiring defendant Art & Antiques Associates, L.P. ("A&A Associates") to pay all amounts due under the Award and to pay attorneys' fees and costs incurred by TM Marketing in bringing this motion. *fn1"

 Jurisdiction is alleged pursuant to Section 9 of the United States Arbitration Act (the "Arbitration Act"), 9 U.S.C. §§ 1 et seq. For the reasons that follow, this action is dismissed for lack of subject matter jurisdiction.

 Facts

 TM Marketing is a New Jersey corporation with its principal place of business in Hackensack, New Jersey. Petition, PP 1-2; Moving Brief at 2. A&A Associates, now a defunct entity, *fn2" was a New York limited partnership with offices in New York City, New York. Petition, P 3; Moving Brief at 2; Mennitt Aff., P 5. A&A Associates was the publisher of a magazine entitled Art & Antiques. Petition, P 3. The general partner of A&A Associates was Mutual Benefit Financial Service Management Company, Inc. ("MBFSMC"), a New Jersey corporation. Id. P 4; Moving Brief at 2. The owner of A&A Associates was Mutual Benefit Life Insurance Company ("MBL"). *fn3" Mennitt Aff., P 6.

 On 16 August 1989, TM Marketing and A&A Associates entered into a contract (the "Contract") for the publication of a physician's edition of Art & Antiques magazine. Petition, P 5; Moving Brief at 2. The Contract required the parties to submit to arbitration any differences arising from performance of the Contract. *fn4" Petition, P 5; Mennitt Aff., Ex. B at 11 (copy of Contract and arbitration clause). The arbitration clause stated that the prevailing party would be entitled to reimbursement of costs, including attorneys' fees, incurred in connection with arbitration. Mennitt Aff., Ex. B at 11.

 In 1990, a dispute concerning the terms of the Contract arose between the parties. Moving Brief at 2. Pursuant to the Contract, TM Marketing demanded arbitration on 31 October 1990. Petition, P 6. The parties thereafter entered into arbitration (the "Arbitration") with a mutually-selected arbitrator (the "Arbitrator") under the aegis of the American Arbitration Association (the "AAA"). Id., PP 6-7.

 On 10 October 1991, TM Marketing requested a modification of the Award to include interest and attorneys' fees and costs incurred by TM Marketing in the Arbitration. Mennitt Aff., P 3, Ex. A (Arbitrator's Disposition of Application for Modification of Award of Arbitration, dated 7 November 1991). The Arbitrator denied the request for modification on 7 November 1991. Id.; Opp. Brief at 2. On 20 November 1991, TM Marketing commenced a second arbitration to recover the attorneys' fees and costs denied by the Arbitrator. Mennitt Aff., P 4, Ex. B (TM Marketing's Demand For Arbitration dated 20 November 1991); Opp. Brief at 2. This second arbitration is currently pending before a second arbitrator. Mennitt Aff., P 4; Opp. Brief at 2.

 On 10 July 1992, TM Marketing filed this motion to confirm the Award. Petition at 3. TM Marketing alleges that, "despite due demand," A&A Associates has failed to pay the amount owed under the Award. Id., PP 9-10; Moving Brief at 2. TM Marketing contends that failure to comply with the Award violates the arbitration clause embodied in the Contract. Petition, P 10. TM Marketing seeks to have judgment entered against A&A Associates, directing A&A Associates to pay all amounts due under the Award, as well as the attorneys' fees and costs incurred by TM Marketing in bringing this motion. *fn5" Id. at 3.

 In response, A&A Associates neither objects to the confirmation of the Award, nor denies that it has failed to pay the Award. Mennitt Aff., PP 2, 6; Opp. Brief at 1. A&A Associates does object, however, to the request of TM Marketing for attorneys' fees and costs, as well as to a provision in Proposed Judgment submitted by TM Marketing ordering judgment to be paid within ten days of entry. *fn6" Mennitt Aff., PP 2, 6; Opp. Brief at 1-2.

 Discussion

 TM Marketing argues that subject matter jurisdiction exists in this action. Petition, P 1. TM Marketing states: "This Petition to confirm the Award is made pursuant to the [Arbitration Act] and the jurisdiction of this court is based upon the Act." Id. A&A ...


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