Dustin Donley Construction Services LLC v. Rosenthal et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DUSTIN DONLEY
CONSTRUCTION SERVICES, LLC,
Plaintiff,
v.
JOSEPH AARON ROSENTHAL, et
al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Case No. CIV-22-1010-SLP
O R D E R
Before the Court is Plaintiff’s Application to Confirm Arbitration Award and Brief
in Support (the Application) [Doc. No. 40]. Plaintiff, Dustin Donley Construction Services,
LLC, seeks the confirmation of an arbitration award, pursuant to 9 U.S.C. § 9 of the Federal
Arbitration Act (FAA), against Defendants ASC Group, LLC (ASC) and Joseph Aaron
Rosenthal (Rosenthal). For the reasons that follow, the Court grants the Application in part
and denies it in part.
As addressed more fully in the Court’s March 3, 2026, Order [Doc. No. 71], this
matter has a complicated factual and procedural background. The Court summarizes the
background pertinent to the Application as follows. Plaintiff brings this action for damages
suffered from a fraudulent scheme allegedly perpetrated by all the named Defendants.
Plaintiff initially filed a Complaint on November 28, 2022. See Compl. [Doc. No. 1].
Because the perpetrators of the fraudulent scheme had used aliases, the Complaint only
named John Does as Defendants. See id. After conducting early discovery, Plaintiff named
Case 5:22-cv-01010-SLP Document 73 Filed 03/09/26 Page 1 of 6

2
ASC and Rosenthal as defendants for the first time in the Amended Complaint.1 See
generally Am. Compl. [Doc. No. 10]. The Amended Complaint brought claims against the
Defendants, collectively, relating to violations of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961-68, as well as state law claims for fraud and
conspiracy to commit fraud. Id. On May 16, 2023, ASC and Rosenthal filed a Motion to
Stay the Action and Compel Arbitration [Doc. No. 18]. On August 14, 2024, the Court
granted ASC’s and Rosenthal’s Motion and ordered the parties to arbitration. See generally
Order [Doc. No. 27]. The Court stayed this matter pending the completion of the arbitration
proceedings. Id.
Plaintiff filed a Demand for Arbitration with Arbitration Services, Inc. on October
10, 2024 (which was subsequently amended on October 28, 2024), naming, among others,
Joseph Aaron Rosenthal, Benjamin Aryeh, and ASC Group, LLC as respondents in the
proceeding2 (the Arbitration Respondents). App. [Doc. No. 29-1] at ¶¶9-10. Plaintiff
alleged the Arbitration Respondents were liable under a common-law fraud claim and
violations of the Racketeer Influenced Corrupt Organizations Act. Id. at ¶ 11. The
Arbitration Respondents were served with the Amended Demand for Arbitration by
Arbitration Services, Inc. on October 28, 2024. Id. at ¶¶ 12-13. The Arbitration
1 The Amended Complaint named John Does as the remaining defendants. See generally Am.
Compl. [Doc. No. 10].
2 John Doe #1 a/k/a Pine Equities, John Doe #2 a/k/a Oak Capital Grp., John Doe #3 a/k/a Jerry
Thomas, and John Doe #4 a/k/a Jeff Greene were also named as respondents in the proceeding.
However, there is no indication in the record before the Court that the identity of these parties were
discovered in the arbitration proceeding.
Case 5:22-cv-01010-SLP Document 73 Filed 03/09/26 Page 2 of 6

3
Respondents failed to respond to the Amended Demand for Arbitration as required by the
rules set forth by Arbitration Services, Inc.3 Id. at ¶¶ 17-18. Based on the default of the
Arbitration Respondents and the presentation of evidence by the Plaintiff, arbitrator Allan
L. Pullin issued an arbitration award, finding in favor of Plaintiff and against the Arbitration
Respondents, jointly and severally. Id. at ¶ 24. The arbitrator awarded Plaintiff a total of
$716, 449.46 in damages relating to the claims. Id.
On May 19, 2025, Plaintiff filed a Motion to Reopen Case to Confirm Arbitration
Award and Add Additional Defendants [Doc. No. 29], which the Court granted. See Order
[Doc. No. 30]. Plaintiff filed the present Application on July 30, 2025. Plaintiff seeks
confirmation of the arbitration award as to Defendants ASC and Rosenthal only. See App.
[Doc. No. 40] at 3. Plaintiff also requests that the Court enter final judgment against ASC
and Rosenthal. Id. at 5. Defendants ASC and Rosenthal did not file a response to the
Application.
As an initial matter, this Court has jurisdiction to confirm the arbitration award.
“There appears to be no dispute that when a court with subject-matter jurisdiction orders
arbitration and then stays the suit pending resolution of the arbitral proceedings, that court
retains jurisdiction to confirm or set aside the arbitral award.” Dodson Int’l Parts, Inc. v.
Williams Int’l Co. LLC, 12 F.4th 1212, 1227 (10th Cir. 2021) (citations omitted). Prior to
3 The Commercial Rules of Arbitration Services, Inc., accessible at
https://arbitrationservicesinc.com/arbitration-rules-consumer-procedures/, state “[a] respondent
must file an answering statement in duplicate with Arbitration Services, Inc. within fifteen days
after notice from Arbitration Services, Inc.” [Doc. 40-1] at 2.
Case 5:22-cv-01010-SLP Document 73 Filed 03/09/26 Page 3 of 6

4
ordering the parties to arbitration, the Court had federal subject matter jurisdiction, based
on federal question jurisdiction, as Plaintiff asserted a claim under RICO. See Am. Compl.
[Doc. No. 10] at ¶¶ 11, 77-91. The parties did not dispute that the Court possessed subject
matter jurisdiction over Plaintiff’s claims before the Motion to Compel Arbitration was
filed.
“[M]aximum deference is owed to the arbitrator’s decision” and “judicial review of
an arbitration award is very narrowly limited.” ARW Expl. Corp. v. Aguirre, 45 F.3d 1455,
1462-63 (10th Cir. 1995) (citations omitted). If a party applies to the district court
possessing jurisdiction for an order confirming an arbitration award under 9 U.S.C. § 9, the
court “must grant such an order unless the award is vacated, modified, or corrected as
prescribed in sections 10 and 11” of the FAA. See 9 U.S.C. § 9. The Tenth Circuit has also
noted that district courts have the authority to vacate “arbitration awards which violate
public policy, were based on a manifest disregard of the law, or were arrived at without a
fundamentally fair hearing.” P&P Indus., Inc. v. Sutter Corp., 179 F.3d 861, 870 (10th Cir.
1990) (citing Denver & Rio Grande W. R. Co. v. Union Pac. R. Co., 119 F.3d 847, 849
(10th Cir. 1997)).
Defendants Rosenthal and ASC did not file responses to Application. Because a
response wasn’t filed, no “party to the arbitration” raised grounds for vacation,
modification, or correction of the Award pursuant to the Federal Arbitration Act. See 9
U.S.C. §§ 10-11. Furthermore, the Court finds that the Award doesn’t violate public policy,
wasn’t based on a manifest disregard of the law, nor was it arrived at without a
Case 5:22-cv-01010-SLP Document 73 Filed 03/09/26 Page 4 of 6

5
fundamentally fair hearing. Accordingly, the Court finds confirmation of the arbitration
award as to ASC & Rosenthal is proper.
While the Court finds that confirmation of the arbitration award as against ASC and
Rosenthal is proper at this time, the Court denies Plaintiff’s request to enter final judgment
against ASC and Rosenthal. The Tenth Circuit has cautioned district courts against the
entering of a final judgment against some defendants while claims against other defendants
remain pending. See Oklahoma Tpk. Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001).
This is especially true where there is significant factual overlap between the claims and the
claims seek the same relief. Id. In the Second Amended Complaint, Plaintiff alleges that
the Defendants, collectively, engaged in a fraudulent scheme. See generally Second Am.
Compl. [Doc. No. 33]. The Defendants are alleged to have concealed their identities,
conspired in a scheme to defraud Plaintiff, and engaged in a criminal enterprise. The
conduct of Defendants ASC and Rosenthal are not alleged to be different from the conduct
of the other Defendants. Plaintiff seeks to hold the Defendants jointly and severally liable
for the same claims of violations of RICO, conspiracy to commit fraud, and fraud. Given
the same underlying facts and requests for relief between ASC, Rosenthal, and the other
Defendants, the Court declines to enter a final judgment against ASC and Rosenthal at this
time.
IT IS THEREFORE ORDERED that Plaintiff’s Application to Confirm Arbitration
Award and Brief in Support is hereby GRANTED in part and DENIED in part.
The arbitration award [Doc. No. 29-1], which is incorporated herein by reference,
is confirmed as against Defendants ASC Group, LLC and Joseph Aaron Rosenthal. At this
Case 5:22-cv-01010-SLP Document 73 Filed 03/09/26 Page 5 of 6

6
time, the Court DENIES the Application to the extent that it seeks the entry of a final
judgment against Defendants ASC Group, LLC and Joseph Aaron Rosenthal.
IT IS SO ORDERED this 9th day of March, 2026.
Case 5:22-cv-01010-SLP Document 73 Filed 03/09/26 Page 6 of 6