Case 2:12-cv-00707-TJS

Document 1 Filed 02/09/12 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ACE AMERICAN INSURANCE COMPANY Petitioner, CIVIL ACTION NO. v. PANORAMA TOWERS, II, LLC Respondent. Petition to Confirm Arbitration Award (9US.C.9)

Petitioner, ACE American Insurance Company, a Pennsylvania corporation ("ACE" or "Petitioner), for its petition to confirm arbitration award against Respondent, Panorama Towers, II, LLC, avers as follows:

THE PARTIES 1. ACE is a corporation organized under the laws of the state of Pennsylvania, with

its principal place of business in Philadelphia, Pennsylvania. 2. ACE is informed and believes that Respondent Panorama Towers, II, LLC

("Panorama") is an limited liability company, organized under the laws of the State of Nevada. At all times relevant hereto, Panorama was conducting business within Clark County, Nevada. JURISDICTION AND VENUE 3. This Court has jurisdiction pursuant to 28 U.S.C.A. 1332 (a), as ACE is a

citizen of the State of Pennsylvania. 4. ACE is informed and believes, and thereon alleges, that Panorama is a citizen of

the State of Nevada, and the amount in controversy in this matter exceeds $75,000.

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5.

Venue is proper in this District pursuant to the Federal Arbitration Act, 9

U.S.C.A. 9, because it is the District in which the arbitration award was made. 6. Respondent Panorama is subject to the personal jurisdiction of this Court under

the Federal Rule of Civil Procedure Rule 4(e). ARBITRATION AWARD 7. 8. In 2004, Panorama was developing a condominium tower in Las Vegas, Nevada. In connection with the condominium tower development, and at the request of

Panorama, ACE offered to Panorama a contract entitled "Funded Multi-Line Deductible Program" (the "Contract"), which Panorama accepted. A copy of the signed Contract is attached hereto as Exhibit 1. 9. The Contract set forth that ACE would provide for the benefit of Panorama

certain policies of insurance, including a general liability policy of insurance and a workers' compensation policy of insurance covering certain periods. 10. Pursuant to the Contract, ACE sent invoices to Panorama in January 2010, which

reflected an outstanding balance due ACE for the insurance policies of $145,687.00. 11. 12. Panorama did not pay the invoices sent by ACE. The Contract provided that any disputes between the parties arising under the

Contract were to be submitted to binding arbitration, and a judgment upon any award issued by a panel of arbitrators was to be entered by any court to competent jurisdiction. 13. On May 24, 2010, ACE sent Panorama a "Demand for Arbitration" in accordance

with Article IV, Section 5 of the Contract.

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14.

A panel of the three arbitrators was appointed pursuant to the terms of the

Contract to preside over the arbitration proceeding arising from ACE's demand to arbitrate its disputes with Panorama. 15. Despite many attempts to solicit Panorama's participation in the arbitration

proceedings, Panorama failed to respond to ACE's demand for arbitration. 16. An Arbitration hearing was conducted on June 1, 2011, where the arbitrators

considered the written evidence, the testimony presented by certain witnesses, and any submissions by any party present at the hearing. 17. On August 22, 2011, the arbitrators appointed to hear the dispute issued a "Final

Order" (the "Award") in favor of ACE, a true and correct copy of which is attached hereto as Exhibit 2. 18. The Award stated that the arbitrators heard the testimony of the witnesses

presented by on behalf of ACE, and memorialized in the Award that such witnesses testified to the following: (a) (b) (c) 19. Panorama has previously paid all amounts due and owing under the Contract prior to January, 2010; Panorama never challenged the amount due to ACE on the outstanding balance under the Contract; and, Panorama never provided a substantive explanation for its failure to pay the outstanding balance due to ACE under the Contract.

The Award ordered Panorama to pay ACE the amount of $145,687.00 as damages

due to the breach of Contract by Panorama, plus interest of $37,150.19 (at the rate of 1.5% per month since the breach on January 21, 2010), plus attorneys fees of $9,359.35 which ACE incurred as a consequence of having to undertake the arbitration proceeding. 20. Panorama has failed to voluntarily satisfy the Award in the time since it was

issued, despite demand therefore being made by Panorama.

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21.

This petition is authorized by the terms of the Contract, and 9 of the Federal

Arbitration Act. 22. This petition is timely under 9 of the Federal Arbitration Act as it is filed within

one year after the Award was made. WHEREFORE, ACE prays for relief as follows: 1. That the Court issue an order confirming the Award, as authorized by 9 of the Federal Arbitration Act; 2. That the Court enter judgment in favor of the Act that conforms to the Award; 3. That ACE be awarded its attorneys fees and costs in pursuing this action, due to the failure of Panorama to satisfy the Award; 4. That ACE be awarded its attorneys fees and costs in enforcing the judgment entered by this Court; and 5. That the Court issue such other and further relief/orders as the Court deems just and proper under the circumstances. Dated this S day of February, 2012. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C.

^ ^ - i c C C l i a m b , Esq.tPjMBarNo. 70817) Zachary R. Magid, Esq. (Pa. Bar No. 205834) Marks, O'Neill, O'Brien & Courtney, P.C. 1800J.F.K. Blvd., Suite 1900 Philadelphia, PA 19103 (215)564-6688 Attorneys for Petitioner, ACE American Insurance Company

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VERIFICATION STATE OF PENNSYLVANIA COUNTY OF PHILADELPHIA Robert M Turin, being first duly sworn, deposes and states: That he is the Assistant General Counsel of Petitioner ACE American Insurance Company, Petitioner in the above-captioned action; that he has read the foregoing Petition and knows that contents thereof, and the same are true and correct, except for those matters alleged upon information and belief, and as to those matters, he believes them to be true,

Robert M. Turin

SUBSCRIBED AND SWORN to before me this#$P^ day of January, 2012.

c
.ry Notary Public in and for said County and State
COMMONWEALTH OF PENNSYLVANIA

LJ

NOTARIAL SEAL PAMELA L. MARTIN, Notary Public City of Philadelphia, Phila. County My Commission Expires September 1,2014

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CERTIFICATE OF SERVICE I hereby certify that on February 9, 2012, a true and correct copy of the Complaint of Petitioner Ace American Insurance Company was served on the following counsel of record and interested parties by hand-delivery and/or certified U.S. mail.

Panorama Towers II, LLC 4230 S. Decatur Blvd, Suite 200 Las Vegas, NV 89103 or c/o Randon Hanson, Registered Agent 4471 Dean Martin Drive #3604 Las Vegas, NV 89103

By:

Mn.

Patricjf C. Lamb, Esq. (Pa. BarNoT70ST7) Zachary R. Magid, Esq. (Pa. Bar No. 205834) Marks, O'Neill, O'Brien & Courtney, P.C. 1800J.F.K. Blvd., Suite 1900 Philadelphia, PA 19103 (215)564-6688 Attorneys for Petitioner, Ace American Insurance Company

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) 44 (Rev. 12/07)

CIVIL COVER SHEET

fl^COn ^ ^ 0 0 ^ ^ , DEFENDANTS ^ 0 ^ X 0 ^ 0 T O U ^ f S , J I , L-LC
County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED. Attorneys (If Known)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I.

(a) PLAINTIFFS^
(b)

County of Residence of First Listed Plaintiff W U I C ^ J I M 0 (EXCEPT IN U.S. PLAINTIFF CASES)

Y l l d .

(c)

Attorney's (Finn Name, Address, and Telephone Number)

*-

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II. B A S I S O F J U R I S D I C T I O N D I U.S. Government Plaintiff G 2 U.S. Government Defendant (Plaee an "X" in One Box Only) O 3 Federal Question (U.S. Government Not a Party) I I I . C I T I Z E N S H I P O F P R I N C I P A L P A R T I E S f P l a c e an X "in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF Citizen of This State O I D 1 Incorporated or Principal Place ?a 4 D4 of Business In This State Citizen of Another State Citizen or Subject of a Foreign Country G 2 03 0 2 Incorporated and Principal Place of Business In Another State O 5 ^ 5

$f 4 Diversity

(Indicate Citizenship of Parties in Item III)

O 3 Foreign Nation

a 6

a6
1

IV. NATURE OF SUIT

1 O O O O & D O O O a O 1 O O D O D O CONTRACT 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

(Place an "X" in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY O 362 Personal Injury Med. Malpractice 365 Personal Injury Product Liability O 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY D 370 Other Fraud O 371 Truth in Lending 380 Other Personal Property Damage G 385 Property Damage Product Liability PRISONER PETITIONS O 510 Motions to Vacate Sentence Habeas Corpus: O 530 General D 535 Death Penalty D 540 Mandamus & Other O 550 Civil Rights D 555 Prison Condition

FORFEITURE/PENA LTV O 610 Agriculture O 620 Other Food & Drag D 625 Drug Related Seizure of Property 21 USC 881 O 630 Liquor Laws a 640 R.R. & Truck 650 Airline Regs. G 660 Occupational Safely/Health O 690 Other LABOR G 710 Fair Labor Standards Act O 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reporting & Disclosure Act O 740 Railway Labor Act O 790 Other Labor Litigation O 791 Empl. Ret. Inc. Security Act IMMIGRATION O 462 Naturalization Application O 463 Habeas Corpus Alien Detainee O 465 Other Immigration Actions

BANKRUPTCY a 422 Appeal 28 USC 158 O 423 Withdrawal 28 USC 157

OTHER STATUTES

a a a
a a a a a a a a a a a a

a a

PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark

SOCIAL SECURITY O 861 HIA (13958) Black Lung (923) a 862 DIWC/DIWW (405(g)) a 863 SSID Title XVI a 864 RSI (405(g)) a 865 FEDERAL TAX SUITS O 870 Taxes (U.S. Plaintiff or Defendant) D 871 IRSThird Party 26 USC 7609

O 400 State Reapportionment a 410 Antitrust Banking Banks and a 430 Commerce a 450 o 460 Deportation D 470 Racketeer Influenced and Corrupt Organizations Credit o 480 ConsumerTV a 490 Cable/Sat Service a 810 Selective a 850 Securities/Commodities/ Exchange Challenge a 875 Customer3410 12 USC D 890 Other Statutory Actions D 891 Agricultural Acts a 892 Economic Stabilization Act o 893 Environmental Matters 0 894 Energy Allocation Act Freedom a 895 Act of Information o 900Appeal of Fee Determination Under Equal Access to Justice Constitutionality o 950 State Statutes of

V. ORIGIN # 1 Original Proceeding

(Place an "X" in One Box Only) 2 Removed from O State Court

Remanded from Appellate Court

O 4 Reinstated or Reopened

5 J ^ E ^ r i ^ " rJrffiA

6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):/^ h i VI. VII. CAUSE OF ACTION R E Q U ESTED IN COMPLAINT: Brief description of cause: O

Appeal to District XfJ Magistrate" Judgment /"> <T &Q

&c$ocCOmaM Gffrcb\*CQtiGr\kjdCurd
DEMAND $ (tf j> ${? SM CHECK YES only if demanded in complair JURY DEMAND: O Yes ^ No ^
J1

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 (See instructions): ^

VIII. RELATED CASE(S) IF ANY DATE

DOCKET NUMBER

SIGNATURE OF ATTORJslB r -F^ECORD

'ICE ONLY FOR OFFICE USE Of<LY RECEIPT H AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 2:12-cv-00707-TJS

Document 1-2

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA - DESIGNATION FORM to be used by counsel to indicate the category of the case for the purpose of assignment to appropriate calendar.

Address ofPIamtiff: hf I

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A de s o Defendant^OmOOA T C l U ^ S I T ) U / A d rs f Place of Accident, Incident or Transaction: \

(Use Reverse Side For Additional Space) ; Fc

Does this civil action involve a nongovernmental corporate party with any parent corporation and any publicly held corporation owning 10% or more of its stock? (Attach two copies of the Disclosure Statement Form in accordance with Fed.R.Civ.P. 7.1(a)) Does this case involve multidistrict litigation possibilities? RELATED CASE, IF ANY: Case Number: Judge Date Terminated: Yesl YesQ Nol' No

Civil cases are deemed related when yes is answered to any of the following questions: 1. Is this case related to property included in an earlier numbered suit pending or within one year previously terminated action in this court?

YesP Nofj4
2. Does this ease involve the same issue of fact or grow out of the same transaction as a prior suit pending or within one year previously terminated action in this court?

Yes LI No(X
3. Does this case involve the validity or infringement of a patent already in suit or any earlier numbered case pending or within one year previously terminated action in this court? Yes LI No ifi

4. Is this case a second or successive habeas corpus, social security appeal, or pro se civil rights case filed by the same individual? YesLl CIVIL: (Place in ONE CATEGORY ONLY) A. Federal Question Cases: No

B. Diversity Jurisdiction Cases:

1. 2. 3. 4. 5. 6.

Indemnity Contract, Marine Contract, and All Other Contracts FELA Jones Act-Personal Injury Antitrust Patent Labor-Management Relations Civil Rights Habeas Corpus Securities Act(s) Cases Social Security Review Cases All other Federal Question Cases
(Please specify)

1. JSf 2. 3. 4. 5.

7. 8. 9. 10. 11.

Insurance Contract and Other Contracts Airplane Personal Injury Assault, Defamation Marine Personal Injury Motor Vehicle Personal Injury 6. Other Personal Injury (Please specify) 7. Products Liability 8. Products Liability Asbestos 9. All other Diversity Cases
(Please specify)

ARBITRATION CERTIFICATION (Check Appropriate Category) [, , counsel of record do hereby certify: X , Pursuant to Local Civil Rule 53.2, Section 3(c)(2), that to the best of my knowledge and belief, the damages recoverable in this civil action case exceed the sum of $150,000.00 exclusive of interest and costs; Relief other than monetaiy damages is sought. DATE:

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-70811

Attomey-at-Law Attorney I.D.# NOTE: A trial de novo will be a trial by jury only if there has been compliance with F.R.C.P. 38.

I certify that, to my knowledge, the within case is not rclaj^d to any case now pending or within one year previously terminated action in this court except as noted above. DATE ;

L\ 6 I | L-,
Attorney I.D.#

CIV. 609 (6/08)

Case 2:12-cv-00707-TJS

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CASE MANAGEMENT TRACK DESIGNATION FORM

A ftTWiCOnN u a n c e C f Compaq
V.

CIVIL ACTION

NO. In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for plaintiff shall complete a Case Management Track Designation Form in all civil cases at the time of filing the complaint and serve a copy on all defendants. (See 1:03 of the plan set forth on the reverse side of this form.) In the event that a defendant does not agree with the plaintiff regarding said designation, that defendant shall, with its first appearance, submit to the clerk of court and serve on the plaintiff and all other parties, a Case Management Track Designation Form specifying the track to which that defendant believes the case should be assigned. SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS: (a) Habeas Corpus - Cases brought under 28 U.S.C. 2241 through 2255. (b) Social Security - Cases requesting review of a decision of the Secretary of Health and Human Services denying plaintiff Social Security Benefits. (c) Arbitration - Cases required to be designated for arbitration under Local Civil Rule 53.2. (d) Asbestos - Cases involving claims for personal injury or property damage from exposure to asbestos. (e) Special Management - Cases that do not fall into tracks (a) through (d) that are commonly referred to as complex and that need special or intense management by the court. (See reverse side of this form for a detailed explanation of special management cases.) (f) Standard Management - Cases that do not fall into any one of the other tracks. ( ) ( ) ( )
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