UNITED STATES COURT OF APPEALS

F O R THE SECOND CIRCUIT

S U M M A R Y ORDER

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E S T O P PE L OR RES JUDICATA.

A t a stated term of the United States Court of Appeals for the Second Circuit, held at

t h e United States Courthouse, Foley Square, in the City of New York, on the 21st day of

June, two thousand six.

PRESENT: H O N O R A B L E RALPH K. WINTER,

H O N O R A B L E REENA RAGGI,

C i r c u i t Judges,

H O N O R A B L E KENNETH M. KARAS,

D i s t r ic t Judge.1

J O N A T H A N HAKALA,

P la in tiff - Appellant,

v. No. 05-3140

J .P . MORGAN SECURITIES, INC.,

D e f e n d a n t - A p p e ll e e.

-

A P P E A R I N G FOR APPELLANT: J O N A TH A N HAKALA, pro se, Hoboken, New

Jers ey.

APPEARING FOR APPELLEE: R O B E R T S. WHITMAN, Orrick, Herrington &

S u t c l if f e , (Todd Gutfleisch, JP Morgan Chase

L e g a l Department, on the brief), New York, New

York .

A p p e a l from the United States District Court for the Southern District of New York ( L e w i s A. Kaplan, Judge, James C. Francis, Magistrate Judge).

U P O N DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND D E C R E E D that the judgment of the district court entered on March 23, 2005 is AFFIRMED.

Plaintiff-Appellant Jonathan Hakala petitioned the district court to confirm in part and vaca te in part an arbitration award. The district court granted Hakala's petition insofar as it s o u g h t to confirm the award, but dismissed so much of the petition that sought to vacate or m o d i f y the award, concluding that the petition to vacate was untimely under New York Civil P r a c t ic e Law and Rules (C.P.L.R.) § 7511(a). Hakala appeals the district court's dismissal o f his petition to vacate. On appeal, Hakala contends, inter alia, that (1) the timeliness of his p e t i ti o n is governed by the three-month limitations period set forth in the Federal Arbitration A c t ("FAA"), see 9U.S.C. § 12, rather than the ninety-day statute of limitations in C.P.L.R.

§ 7511(a), and that, under the FAA, his petition was timely; and (2) even if New York's n i n e t y- d a y statute of limitations applies, the district court nevertheless erred in concluding t h a t his petition was untimely. On appeal of a district court's decision to vacate or confirm a n arbitration award, we review the district court's findings of fact for clear error and its c o n c l u s io n s of law de novo. See 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 529 (2d Cir. 2005). We assume the parties' familiarity with the facts and the record of prior p r o c e e d in g s , which we reference only as necessary to explain our decision.

S e c t i o n 12 of the FAA provides that, "[n]otice of a motion to vacate, modify, or c o r r e c t an award must be served upon the adverse party or his attorney within three months a f t e r the award is filed or delivered." 9U.S.C. § 12. As the district judge correctly r e c o g n i ze d , by its plain language, § 12 applies only to notice, i.e., service, it does not apply to filing. See American Postal Workers Union, AFL-CIO v. United States Postal Serv., 823 F . 2 d 466, 470 (11th Cir. 1987) (noting that 9U.S.C. § 12 "plainly requires service, rather t h a n mere filing, within 3 months of the arbitration award" (emphasis in original)). To that exten t, the ninety-day limitations period in C.P.L.R. § 7511 governs the timeliness of Hak ala's petition. See generally Hakala v. Deutsche Bank AG, 343 F.3d 111 (2d Cir. 2003) (ap plying C.P.L.R. § 7511(a) to timeliness issue).

Pursuant to C.P.L.R. § 7511(a), "[a]n application to vacate or modify an [arbitration] award may be made by a party within ninety days after its delivery to him." Here, Hakala r e c e iv e d the arbitration award on December 24, 2003. Although he mailed his petition to the Pro Se Clerk's Office on March 23, 2004, it was not received by the clerk's office, and thus n o t filed, see Greenwood v. State of New York, Office of Mental Health, 842 F.2d 636, 639 ( 2 d Cir. 1988), until March 24, 2004, ninety-one days after he received the panel's award.

Notwithstanding the fact that his petition was filed one day after the statute of l i m it a t io n s expired, Hakala contends that the district court erred in dismissing his petition as untim ely because, inter alia, factual issues remain as to whether his petition "should have b e e n deemed filed on March 23, 2004." Specifically, Hakala contends that an unnamed e m p l o y ee in the Pro Se Clerk's office incorrectly advised him that he was required to serve his petition before it could be accepted for filing. Hakala argues that, but for the employee's e r r o ne o u s advice, he would have filed the petition on March 23, 2004, the last day of the limitation s period. Hakala's argument is without merit.

T h e district court held an evidentiary hearing on the issue of timeliness. After the h e a r i n g , at which Hakala testified, the district court found that Hakala failed "to sustain his b u r d e n of establishing that the Pro Se Office refused to accept the complaint for filing on M a r c h 23, 2004 because it had not yet been served" and that there was "no credible evidence t h a t it misled [him] in any way." March 18, 2005 Order at 2. Hakala offers no reason to disturb the district court's finding, and upon our independent review of the record, we cannot c o n c l u d e that the district court clearly erred in finding that Hakala's failure timely to file his p e t i ti o n was not the result of misinformation from the Pro Se office.

Equally unavailing is Hakala's argument that the filing deadline should be tolled u n d e r the doctrine of "unique circumstances." Pursuant to that doctrine, filing deadlines may b e excused where "a party has performed an act which, if properly done, would postpone the d e a d l in e for filing . . . and has received specific assurance by a judicial officer that this act h a s been properly done." Mendes Junior Int'l Co. v. Banco do Brasil, S.A., 215 F.3d 306, 3 1 5 (2d Cir. 2000) (recognizing that filing deadlines for federal appeals may be relaxed in "uniq ue circumstances"); cf. Thompson v. INS, 375 U.S. 384, 386-87 (1964) (excusing an untim ely notice of appeal because appellant had postponed filing in reliance on district court's specific assurance that he had properly presented motion to that court that would toll a p p e l la t e filing deadline). Assuming the continued validity of the "unique circumstances" d o c t r in e , see United States v. Canova, 412 F.3d 331, 346 n.17 (2d Cir. 2005) (noting that our s i s te r circuits have questioned continued vitality of "unique circumstances" doctrine), it is n o t applicable in this case. As discussed supra, the district court explicitly rejected Hakala's c o n t e n ti o n that the Pro Se Office misled him about the filing of his petition, and we have no r e a s o n to disturb the court's finding.

W e have considered Hakala's remaining arguments, including his contention that Februa ry 29, 2004 should not be counted towards the ninety-day limitations period and that t h e time period should be equitably tolled, and largely for the reasons articulated by the M agistrate Judge and the district court, we conclude that none has merit. We further note that, while it is true, as Hakala contends, that we apply more lenient standards to pro se l i t ig a n t s , see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996), such leniency does not exte nd to excusing Hakala's failure timely to file his petition in this case.

Finally, Hakala raises a number of arguments with respect to the merits of his petition to vacate. Because, like the district court, we conclude that Hakala's petition to vacate was u n t i m e l y , we need not address these arguments.

T h e judgment of the district court, entered on March 23, 2005, is hereby AFFIRMED.

F O R THE COURT: R O S E A N N B. MACKECHNIE, CLERK B y:

1 The Honorable Kenneth M. Karas, of the United States District Court for the So uth ern District of New York, sitting by designation.