USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 97-1407
MICHAEL NWOGUGU,
Plaintiff, Appellant,
v.
PAINEWEBBER INC.,
AND BOARD OF DIRECTORS OF PAINEWEBBER PROPERTIES,
Defendants, Appellees.
____________________
Misc. No. 97-8020
IN RE: MICHAEL NWOGUGU,
Petitioner.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge] ___________________
____________________
Before
Boudin, Stahl and Lynch, Circuit Judges. ______________
____________________
Michael Nwogugu on brief pro se. _______________
David J. Kerman, Mark C. DiVincenzo and Jackson, Lewis, __________________ _____________________ ________________
Schnitzler & Krupman on brief for appellees. ____________________
____________________
OCTOBER 2, 1997
____________________
Per Curiam. Michael Nwogugu appeals pro se from a __________ ___ __
district court judgment dismissing his complaint in light of
pending arbitration, as well as from the denial of post-
judgment motions to reconsider and to reopen his case. We
affirm.1 1
Contrary to Nwogugu's suggestion, we think this case is
governed by the Federal Arbitration Act ("FAA"), 9 U.S.C.
1-16, because there was a written agreement to submit an
existing controversy to arbitration, see 9 U.S.C. 2. We ___
reject Nwogugu's contention that he falls within the
exclusionary clause in 1 of the FAA because the dispute
arises out of an employment contract. In Dickstein v. _________
duPont, 443 F.2d 783, 785 (1st Cir. 1971), this court ______
narrowly construed the 1 exclusion of "contracts of
employment of . . . workers engaged in foreign or interstate
____________________
1Nwogugu also seeks, by way of separate motions, summary 1
disposition of the instant appeal and reconsideration of our
previous denial of mandamus relief. Although Nwogugu does
not seek mandamus relief on the ground that appellate
jurisdiction may be lacking, and appellees have never
questioned our appellate jurisdiction, we note that it is not
entirely clear that the dismissal in favor of arbitration is
a final, appealable order. Compare McCarthy v. Providential _______ ________ ____________
Corp., 1997 WL 471876, at **2-4 (9th Cir. Aug. 20, 1997) (2-1 _____
decision) (dismissing, as interlocutory, appeal from order
compelling arbitration and dismissing complaint) with Armijo ____ ______
v. Prudential Ins. Co. of America, 72 F.3d 793, 979 (10th ________________________________
Cir. 1995) (holding that dismissal as a result of order to
compel arbitration presents an appealable final decision).
We need not resolve the jurisdictional issue since it would
not alter the outcome. We deny the motions for summary
disposition and reconsideration of the denial of mandamus
relief on the ground that we have found no error, much less
clear and indisputable error.
-2-
commerce" as limited to those employees "involved in or
closely related to the actual movement of goods in interstate
commerce." Nwogugu was a real estate analyst. Since he was
not involved in the transportation industry (or otherwise
involved in the movement of goods), the exclusionary clause
does not apply.
Although Nwogugu cites to civil rights and other
statutes in his brief, we are persuaded that his lawsuit,
fairly construed, was limited to common law claims.2 These 2
common law claims appear to be, at bottom, identical to
claims which Nwogugu agreed to arbitrate, and, indeed, was
pursuing in arbitration during the pendency of his lawsuit.
Under the circumstance, the district court appropriately
dismissed the case, see, e.g., Alford v. Dean Witter ___ ____ ______ ____________
Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992), and _______________
there is no need for us to address Nwogugu's arguments that
various statutory claims are non-arbitrable.3 3
____________________
2Nwogugu's amended complaint lists a series of common law 2
claimsand this same list is repeated in subsequent filings.
3Nwogugu also contends that his common law claims are non- 3
arbitrable because punitive damages are unavailable in
arbitration. In support of this argument, he points out that
the employment contract provides that it "shall be governed
by the law of the State of New York," and that New York state
law prohibits arbitral awards of punitive damages, see ___
Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 353 N.E.2d 793 _______ __________________
(1976). Nwogugu raised this argument for the first time in a
post-judgment motion. See FDIC v. World Univ. Inc., 978 F.2d ___ ____ ________________
10, 16 (1st Cir. 1992) (observing that Rule 59(e) motions
should not be used to raise arguments which could, and
should, have been made before judgment issued). We perceive
-3-
Nwogugu complains that "justice and the right to due
process" demanded that the district court hold hearings on
his various preliminary motions (including motions for a
temporary restraining order, preliminary injunction, writ of
attachment, and summary judgment). However, the district
court properly deferred ruling on these motions pending its
decision on the motion to dismiss, and the dismissal obviated
the need to explicitly address them.
Nwogugu argues that he was entitled to summary judgment
on the ground that defendants failed to oppose his (tardy)
statement of facts. See Carreiro v. Rhodes Gill & Co., 68 ___ ________ _________________
F.3d 1443, 1446 n.3 (1st Cir. 1995) (observing that under
Local Rule 56.1 of the District of Massachusetts, properly
supported facts set forth by the moving party are deemed
admitted unless controverted by the factual statement of the
opposing party). This argument fails. Having concluded that
Nwogugu agreed to arbitrate his dispute, the district court
appropriately refrained from reaching the merits of Nwogugu's
____________________
no manifest error of law. "The potential unavailability of
punitive damages is not a ground for denying effect to an
otherwise valid agreement to arbitrate." Morgan v. Smith ______ _____
Barney, Harris Upham & Co., 729 F.2d 1163, 1168 n.7 (8th Cir. __________________________
1984). We add that it is by no means apparent that punitive
damages, if otherwise proper, are unavailable to Nwogugu in _______
arbitration. See Mastrobuono v. Shearson Lehman Hutton, ___ ___________ _________________________
Inc., 115 S. Ct. 1212, 1216 (1995) (observing that if ____
contracting parties agree to include claims for punitive
damages within the issues to be arbitrated, the FAA ensures
that their agreement will be enforced according to its terms
even if a rule of state law would otherwise exclude such
claims from arbitration).
-4-
motion for summary judgment.
Nwogugu contends that his lawsuit should have been
reopened based upon a post-dismissal letter to the National
Association of Securities Dealers requesting to withdraw his
claims in arbitration conditional upon the district court
reopening his action. We disagree. Having agreed to an
alternative forum, Nwogugu cannot simply change his mind and
decide he wants a judicial forum after all. Otherwise,
arbitration agreements would be unenforceable.
We have carefully considered Nwogugu's remaining
arguments and reject them as without merit. Accordingly, the
judgment below is affirmed. ________
-5-