Case of the Day: Everplay Installation v. Guindon

The case of the day is Everplay Installation, Inc. v. Guindon (10th Cir. 2012). Rolf Huber and Roger J. Guindon had incorporated Everplay in 1993. The articles of incorporation contained an arbitration agreement. After a dispute arose, Everplay and Huber initiated an arbitration against Guindon, which resulted in a 1998 interim award enjoining Guindon from competing with Everplay and Huber during the pendency of the arbitration and a 2003 award requiring Guindon to pay costs and fees but not awarding damages. In 2007, an Ontario court confirmed the award.

Guindon went to great efforts to avoid paying dealing with the arbitration while it was ongoing or paying the costs and fees. After declaring bankruptcy in 1998, he moved to the Dominican Republic in 2000 to take a job. He instructed his wife not to accept service of any documents on his behalf and told his lawyer that he did not want Everplay and Huber to know where he was working. In 2001, he moved to Colorado, and Everplay and Huber had notice of that fact. However, they continued to try to serve documents relating to the arbitration proceeding at his Pickering, Ontario address. Their mailings were returned to them, with a notation indicating that Guindon had moved. Guindon was itinerant in Colorado, but for a while he lived under his true name and obtained a driver’s license and a social security number, and apparently it would have been relatively easy to find him. In 2003, he began using the alias J.R. Gilles. His wife joined him in Colorado, under her own name, but she left no forwarding address with the authorities in Ontario.

Everplay and Huber had reason to know that Guindon was living in the United States from early on, but they did not take any steps to find him until 2007, and then, the expert that they hired searched only in Ontario. A relatively simple search for Guindon using publicly available databases would have found him right away.

After ultimately finding Guindon, Everplay and Huber sued him in the District of Colorado in 2008, seeking recognition and enforcement of the award and of the Canadian judgment.1 The statute of limitations for confirmation of a foreign arbitral award was three years, and the statute of limitations for recognition and enforcement of a foreign judgment under Colorado law was, apparently two years—a very short limitations period on an action on a judgment, in my opinion. The case turned on whether the statutes of limitations were tolled. The district judge dismissed the case on the grounds that Huber and Everplay had not met their burden of showing that they had been diligent in pursuing Guindon. On appeal, Huber and Everplay argued that the judge had wrongly focused on their lack of diligence rather than on Guindon’s attempts at fraudulent concealment. But the Tenth Circuit rejected this argument, holding, in reliance on Holmberg v. Armbrecht, 327 U.S. 392 (1946), that there could be no tolling unless the plaintiff had acted diligently and without fault. On the facts of the case, the judge’s decision that Huber and Everplay had not been diligent was not clearly erroneous. Thus the court affirmed the decision.

  1. Question: where an award has already been confirmed in another jurisdiction, is it proper to seek recognition and enforcement of the foreign judgment of recognition, or is it instead proper to seek recognition and enforcement of the underlying award? The case doesn’t address this question.

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