United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 1, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-31176
Summary Calendar
HARRY L. SHOEMAKER III,
Plaintiff-Appellant,
versus
FIRST LEVEL CAPITAL, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-1465
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In October 2002, Harry L. Shoemaker, III (hereinafter,
“Shoemaker”) filed an arbitration claim with the National
Association of Security Dealers, Inc. (“NASD”) against First
Level Capital, Inc. (hereinafter, “First Level”) who had been
serving as his broker-dealer. Shoemaker brought several
allegations against First Level including breach of fiduciary
duty, breach of contract, fraud, respondeat superior, and gross
negligence. A two-day arbitration hearing in January 2004, in
which First Level contended that it had satisfied all of its
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 04-31176
-2-
duties to Shoemaker. Two weeks later, on January 27, 2004, the
arbitrators entered an award in Shoemaker’s favor in the amount
of $15,500, but the award did not otherwise specify either the
causes of action or the affirmative defenses involved in the
arbitration. First Level promptly sent Shoemaker a check for the
$15,500 award and the check was accepted and cashed by Shoemaker
on February 5, 2004. However, on April 15, 2004, Shoemaker filed
a motion to vacate the arbitration award in the Civil District
Court for the Parish of Orleans. First Level removed this state
court action to the U.S. District Court for the Eastern District
of Louisiana, alleging diversity of citizenship in that Shoemaker
was a citizen of Louisiana and First Level was a citizen of
Florida. First Level also submitted its response in opposition
to Shoemaker’s motion to vacate and after a period of four months
in which no significant action was taken, the district court
rendered its decision that Shoemaker’s pleadings were
insufficient to state a ground upon which the arbitration award
could be vacated. Shoemaker filed a motion for new trial and
reconsideration which was denied. Shoemaker now appeals to this
court.
We have carefully reviewed the briefs, the reply briefs, the
record excerpts, and relevant portions of the record itself. For
the reasons stated by the district court in its Memorandum Order
filed November 2, 2004, we affirm the decision of the district
court to dismiss Shoemaker’s claim for failure to state a claim
upon which relief can be granted and we affirm the district
No. 04-31176
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court’s denial of Shoemaker’s motion for a new trial and
reconsideration.
AFFIRMED.