Coffey v. Winske ( 1996 )

USCA1 Opinion

        April 8, 1996           [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-2222



                                   MICHAEL COFFEY,

                                Plaintiff, Appellant,



                                          v.



                                    ERNEST WINSKE,

                                 Defendant, Appellee.



        No. 95-2223



                                   MICHAEL COFFEY,

                                Plaintiff, Appellant,



                                          v.



                                    DAVID WINSKE,

                                 Defendant, Appellee.

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                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS





                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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            John J. Washburn on brief for appellant.
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            Dallas W. Haines III on brief for appellee.
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                 Per  Curiam.   Having reviewed  carefully the  record in
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            this  case, we  affirm the  order confirming  the arbitration



            award to appellees  essentially for the reasons  given by the



            district court  in its  memorandum and order  dated September



            15, 1995.1
1



                 Appellant Coffey's  contention that the  National Future



            Association   [NFA]  was  without  jurisdiction  to  consider



            appellees' claims is without merit.   Uncontradicted evidence



            was introduced  through sworn  affidavits that Coffey,  as an



            associate member of  the NFA,  agreed to abide  by the  NFA's



            Code  of Arbitration.  That code clearly states that disputes



            involving commodity futures "shall  be arbitrated under  this



            Code."



                 The    arbitrators'   finding   that    Coffey   was   a



            "salesperson," and  hence still  subject to claims  by those,



            like  appellees, who  chose to  opt out  of an  earlier class



            settlement, was well within the arbitrators' discretion, see,
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            e.g., El Dorado Technical Services v. Union General, 961 F.2d
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            317,  320  (1st Cir.  1992)  ("as a  general  proposition, an



            arbitrator's  factual  findings  are  not  open  to  judicial



            challenge"),  as  was  their  determination  that  appellees'



            claims  were not time barred  under the NFA  Code, see United
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            Paperworkers' Int'l  Union v.  Misco, Inc.,  484 U.S.  29, 38
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               1Appellees' "motion to adopt previously filed memoranda as
1

            brief on appeal" is granted.
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            (1987)  ("as   long  as  the  arbitrator   is  even  arguably



            construing  or applying  the contract  and acting  within the



            scope  of  his  authority,  that  a  court  is  convinced  he



            committed  serious error  does  not suffice  to overturn  his



            decision");  Moses  H.  Cone  Memorial  Hospital  v.  Mercury
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            Construction  Corp., 460  U.S. 1,  24-25 (1983)  ("any doubts
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            concerning the scope of  arbitrable issues should be resolved



            in favor of arbitration,  whether the problem at hand  is the



            construction of the contract language itself or an allegation



            of waiver, delay or a like defense to arbitrability").



                 Affirmed.  See 1st Cir. Loc. R. 27.1.
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