Cybulski v. Vaiani

¶1(concurring). I agree with the result reached by the majority opinion, affirming the judgment of the Superior Court confirming the arbitral award. Under the reasoning of Abraham-Copley Square Ltd. Partnership v. Badaoui, 72 Mass. App. Ct. 339 (2008), it is clear that (contrary to the plaintiff’s argument) venue was proper in the Superior Court in Middlesex County.

¶2I decline, however, to join the broader rule imposed by the majority opinion: that a motion to confirm an arbitral award in the circumstances of this case may only be brought in the Superior Court in Middlesex County.

¶3As the majority correctly observe, no statute or common law confers exclusive jurisdiction or venue on the Superior Court of the county in which the action underlying a matter submitted to arbitration is pending, unless the agreement to arbitrate preceded commencement of the action. The majority further observe that, in confirming the award, the motion judge implicitly rejected the plaintiff’s contention that venue was improper in Middlesex County. Having concluded that venue was at least permissible in Middlesex County, and that the motion judge accordingly acted properly in confirming the arbitral award, we need go no further to affirm the judgment.

¶4Were the law clear that venue is vested exclusively in the county in which the underlying action commenced, I would have little hesitancy in including, as dictum, a statement to that effect. However, the majority opinion elects to impose a rigid rule of exclusive venue, based on a series of factors it considers persuasive. I am not persuaded that a rule restricting venue to a particular county of the Superior Court is necessary or advisable. What is offensive about the plaintiff’s attempt in the present case is his effort to derail the defendant’s properly initiated motion to confirm the award. Had the defendant instead sought to confirm the award in the Superior Court in Bristol County, I am not persuaded that any troublesome burden on judicial resources would have resulted. Moreover, I consider the majority’s reliance on the presumed familiarity of Superior Court judges in Middlesex County with the underlying litigation to be overstated. First, by reason of the rotation system employed by the Superior Court department, there is no assurance that any judge assigned to that session at the time of the motion for confirmation would have had any prior *389involvement with the underlying action.1 Second, the matter had not progressed to any significant degree before the parties elected to pursue arbitration.2 More significantly, the scope of the court’s review of an arbitral award, on a motion to confirm, requires little prior familiarity with the underlying litigation.

¶5In my view, there seems no compelling reason for a mle restricting venue for motions to confirm an arbitral award to the county in which the underlying action was initially commenced; I would instead tend to prefer a presumptive rule of flexibility for parties seeking confirmation of an arbitral award. Whatever prudential considerations might weigh in the direction of the rule advocated by the majority are, in my view, better left to the Legislature. Failing action by the Legislature, we may have occasion in some future case, where the issue is necessary to decision, to consider an appropriate rule. In any event, we need not reach the question in the present case, and I accordingly decline to do so.