Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverse party shall be a nonresident then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court. For the purposes of the motion any judge who might make an order to stay the proceedings in an action brought in the same court may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.
. . .(b) Service: How Made.(1) Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.
(2) Service in General. A paper is served under this rule by:(A) handing it to the person;(B) leaving it:(i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or(ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there;(C) mailing it to the person's last known address-in which event service is complete upon mailing;(D) leaving it with the court clerk if the person has no known address;(E) sending it to a registered user by filing it with the court's electronic-filing system or sending it by other electronic means that the person consented to in writing-in either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served; or(F) delivering it by any other means that the person consented to in writing-in which event service is complete when the person making service delivers it to the agency designated to make delivery.
First, Petitioner Dalla-Longa didn't timely serve proper Notice on Respondent Magnetech within three months of the September 9, 2019, AAA Award.Second, Petitioner's email service was improper under FRCP 5(b)(2)(E)
Any papers, notices, or process necessary 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 . . . . Where all parties and the arbitrator agree, notices may be transmitted by electronic mail (e-mail), or other methods of communication."
Consent to service of notice of petitions to vacate arbitration awards by email cannot be implied by prior conduct in the underlying arbitration. The Second Circuit recently addressed exactly this issue in an unpublished opinion. There, a petitioner attempted to serve by email a notice of a petition to vacate an arbitration award. See Martin, 676 F. App'x at 28. The Second Circuit rejected petitioner's argument that consent to service by email "can be implied . . . from the parties' pattern and practice of communicating by e-mail in the underlying arbitration":
The argument fails because the plain language of Rule 5 requires the recipient of electronic service to have "consented in writing," which was not done here. Further, the advisory committee notes to the Rule explain that the requisite consent "must be express, and cannot be implied from conduct."
Id. at 29 (citing FED. R. CIV. P. 5 advisory committee's note to 2001 amendment). This ruling is persuasive and consistent with past rulings in this District. . . .
Petitioner argues that the Court should excuse any errors in service because every effort was made to ensure that service was proper. But the law does not excuse improper service on equitable grounds. "No exception to [the] three month limitations period [to serve notice of a motion to vacate an arbitration award] is mentioned in the statute," and "there is no common law exception to the three month limitations period on the motion to vacate." . . .. . .Finally, Petitioner asserts in a conclusory fashion that Respondent's motion is "futile" because, "[u]nder New York's Saving Statute, CPLR § 205(a), the case could be refiled within six months." But CPLR § 205(a) applies only where "an action is timely commenced." Where, as here, an action is dismissed for failure to timely serve, CPLR § 205(a) does not apply. . . .