The Eleventh Circuit rejected an argument from a party seeking to vacate an arbitration award that an email courtesy copy of a “notice of motion” was effective service under the Federal Arbitration Act. In O’Neal Constructors, LLC v. DRT America, LLC, 2021 WL 1220710 (11th Cir. Apr. 1, 2021), the appellant, DRT, sought to vacate an arbitration award in O’Neal’s favor.

Section 12 of the Federal Arbitration Act (“FAA”) requires a party seeking to vacate an arbitration award to serve notice of a motion to vacate within three months after the award is delivered. 9 U.S.C. § 12. Section 12 then specifies the manner in which service must be made, depending on whether the respondent is a resident of the district where the award was made. Where, as was the case in O’Neal, the respondent is a resident of the district, service must 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,” i.e., in accordance with Fed. R. Civ. P. 5.

DRT filed its motion to vacate within the three-month limitations period, but did not serve the motion on O’Neal (by personal service) until after the deadline. DRT later argued that an email “courtesy copy” of its memorandum of law was sufficient and timely service under the FAA, arguing that O’Neal had consented to email service by virtue of agreeing to arbitrate disputes pursuant to the American Arbitration Association (“AAA”) Construction Industry Arbitration Rules.

The district court (Judge Steve Jones in the Northern District of Georgia) disagreed, and denied DRT’s motion to vacate for failure to timely serve it. The Eleventh Circuit, in a published opinion written by Judge Ed Carnes, affirmed.

Fed. R. Civ. P. 5(b)(2)(E) allows service “by other electronic means that the person consented to in writing.” The advisory committee’s notes to Fed. R. Civ. P. 5 state that such consent “must be express, and cannot be implied from conduct.” DRT argued that AAA Rule 44 allowed for email service of a motion to vacate, and that O’Neal’s agreement to arbitrate under the AAA Rules constituted its consent to email service. The court disagreed: “DRT has an insurmountable problem: The plain language of Rule 44 does not allow for email service of the notice.” In short, AAA Rule 44(a) allows for mail or personal service of certain items, which DRT argued included its motion to vacate. But the only place in AAA Rule 44 that mentions email is Rule 44(b), which applies only to “the notices required by these rules.” Rejecting DRT’s argument, the court pointed out: “notice of the filing of a motion to vacate is not required by the AAA Construction Rules. It is, instead, required by § 12 of the Federal Arbitration Act.”

Without express written consent to email service, DRT’s courtesy copy email was not proper service, and the court affirmed the district court’s denial of DRT’s motion to vacate on such grounds.