United States Second Circuit

In an appeal from the district court's order granting respondent's Fed. R. Civ. P. 60(b)(2) motion based on newly discovered evidence that an arbitrator who had resigned was, in fact, able to rejoin the arbitration panel prior to the district court's decision on whether to convene a new panel or order a replacement arbitrator, the order is affirmed where: 1) the rule articulated in Marine Products Export Corp. v. M.T. Globe Galaxy, 977 F.2d 66 (2d Cir. 1992) - that, absent "special circumstances," if a vacancy arises on an arbitral panel due to the death of an arbitrator prior to the rendering of an award, a new panel should be convened - does not apply to a vacancy occasioned by a resignation; and 2) in the instant case, the district court's decision either to reappoint the arbitrator who had resigned, or, in the alternative, to direct petitioner to appoint a replacement was proper pursuant to 9 U.S.C. section 5.

Appellate Information

• Argued 03/12/2010
• Decided 06/23/2010
• Published 06/23/2010

Judges

• GERARD E. LYNCH, Circuit Judge:, Before JACOBS, Chief Judge, LYNCH, Circuit Judge, and RESTANI, Judge.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Lloyd A. Gura, Mound Cotton Wollan & Greengrass, New York, New York, (Robert E. Wilder, Raymond S. Mastrangelo, Mound Cotton Wollan & Greengrass, New York, New York, and Stephen B. Burbank, Philadelphia, Pennsylvania, on the brief), for Petitioners-Appellants.


• For Appellees:
  
• Daniel Hargraves, (John McConnell, on the brief), Hargraves McConnell & Costigan, P.C., New York, New York, for Respondent-Appellee.