In O’Neal Constructors, LLC v. DT America, LLC, the Eleventh Circuit was confronted with a losing party’s attempt to vacate a $650,000 attorney’s fee award. The party contended it satisfied the statutory deadline for service by virtue of email delivery.
As it argued, Federal Rule of Civil Procedure allows service “by other electronic means that the person consented to in writing.” Consent, according to the movant, was found in American Arbitration Association Construction Rule 44, entititled “Service of Notice,” which provided as follows:
(a) Any papers, notices, or process necessary or proper for the initiation or continuation of an arbitration under these rules; for any court action in connection therewith; or for the entry of judgment on any award made under these rules may be served on a party by mail addressed to the party or its representative at the last known address or by personal service, in or outside the state where the arbitration is to be held, provided that reasonable opportunity to be heard with regard thereto has been granted to the party.
(b) The AAA, the arbitrator and the parties may also use overnight delivery, electronic fax transmission (fax), or electronic mail (email) to give the notices required by these rules. Where all parties and the arbitrator agree, notices may be transmitted by other methods of communication.
Affirming the lower court, the Eleventh Circuit, however, held this language did not authorize the email service of the motion to vacate. As the Court explained, “[s]ubsection (a) of the Rule provides for service by mail or personal service for the paper, notices, or process it covers. It does not provide for service by email. Subsection (b) does provide for service by email, but only for service of ‘the notices required by these rules,’ meaning the AAA Construction Rules. Notice of a motion requesting a court to vacate an arbitration award is nowhere required or provided for in the AAA Construction Rules.”
Thus, as the Eleventh Circuit concluded, “Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure does provide for service by email, but only with express written consent, of which there is none in this case. The district court was correct to hold that DRT did not serve in a proper and timely way notice of its motion to vacate and, as a result, that motion was due to be denied and the arbitration award confirmed.”