Smittle v. Fidelity Brokerage, 10th Cir. (2003)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals


Tenth Circuit

FOR THE TENTH CIRCUIT

JUL 16 2003

PATRICK FISHER
Clerk

DONALD E. SMITTLE, Trustee for


Donald E. Smittle Loving Trust,
Plaintiff-Appellant,
v.
FIDELITY BROKERAGE
SERVICES, LLC; SECURITIES AND
EXCHANGE COMMISSION;
WILLIAM B. FEDERMAN;
STUART W. EMMONS; FEDERMAN
& SHERWOOD; MARK E.
NOWICKI; JOHN R. PRESTON;
THOMAS A. BAMBURGER;
ROGER D. MINNEY; NASD
DISPUTE RESOLUTION, INC.,

No. 02-6409
(D.C. No. 01-CV-1728-L)
(W.D. Okla.)

Defendants-Appellees.
ORDER AND JUDGMENT

Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and


Circuit Judge.

HARTZ ,

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Donald E. Smittle, appearing

pro se , appeals the district courts

order dismissing, without prejudice, his motion to vacate an arbitration award for
lack of subject matter jurisdiction. We affirm.
Plaintiff filed an arbitration claim against Fidelity Brokerage Services,
L.L.C. (Fidelity) with the National Association of Securities Dealers (NASD),
claiming that Fidelity had arbitrarily and negligently revoked all margin in his
brokerage account. The NASD arbitration panel dismissed plaintiffs statement
of claim. Plaintiff then filed a motion to vacate the arbitration decision in the
United States District Court for the Western District of Oklahoma, claiming the
arbitration award was irrational, arbitrary, and capricious, with no basis in
evidence, and in contradiction of undisputed facts. R. Doc. 1, at 5. Although
his arbitration claim named only Fidelity as a broker, his motion to vacate also
named the attorneys who represented Fidelity, the Securities and Exchange
Commission, the NASD case administrator, the three NASD arbitration panel
members and NASD Dispute Resolution, Inc.

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For substantially the same reasons set forth by the district court in its
thoughtful and well-analyzed order, we agree that subject matter jurisdiction is
lacking. As the district court correctly noted, because the Federal Arbitration Act
does not create any independent federal-question jurisdiction, the party seeking
confirmation must demonstrate a jurisdictional basis under either 28 U.S.C.
1331 (federal question) or 1332 (diversity).

P & P Indus., Inc. v. Sutter

Corp. , 179 F.3d 861, 866 (10th Cir. 1999) (quotation omitted). Plaintiffs
complaint failed to allege any colorable federal question.

See Martinez v. United

States Olympic Comm. , 802 F.2d 1275, 1280 (10th Cir. 1986) (holding that
federal question jurisdiction must appear on the face of a plaintiffs well-pleaded
complaint, and [t]he complaint must identify the statutory or constitutional
provision under which the claim arises, and allege sufficient facts to show that the
case is one arising under federal law). He further failed to allege diversity
jurisdiction.

See Wis. Dept of Corr. v. Schacht

, 524 U.S. 381, 388 (1998)

(holding that [a] case falls within the federal district courts original diversity
jurisdiction only if diversity of citizenship among the parties is complete,

i.e. ,

only if there is no plaintiff and no defendant who are citizens of the same State)
(quotations omitted), and

Penteco Corp. Ltd. Pship - 1985A v. Union Gas Sys.,

Inc. , 929 F.2d 1519, 1521 (10th Cir. 1991) (holding that plaintiff must allege in

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his pleading the facts essential to show diversity jurisdiction) (quotation


omitted).
Plaintiff filed three post-judgment motions, which could be construed as
motions for reconsideration or motions to amend. In none of these motions did
plaintiff remedy his failure to allege a colorable federal-question. Nor did he
remedy his failure to allege complete diversity jurisdiction or rebut the evidence
that three of the defendants, William B. Federman, Stuart W. Emmons and
Federman & Sherwood, are, like plaintiff, residents of Oklahoma.
Accordingly, the judgment of the district court is AFFIRMED. The
mandate shall issue forthwith.
Entered for the Court

Deanell Reece Tacha


Chief Judge

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