Bishay v. American Arbitration Assoc. , 221 F. App'x 3 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1953
BAHIG F. BISHAY,
Plaintiff, Appellant,
v.
AMERICAN ARBITRATION ASSOC. AND BRIGHTON AVENUE ASSOCS., LLC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M Gorton, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
Bahig F. Bishay on brief pro se.
John M. Simon, Kay H. Hodge and Stoneman, Chandler & Miller
LLP on brief for appellee American Arbitration Association.
James S. Singer and Rudolph Friedmann LLP on brief for
appellee Brighton Avenue Associates, LLC.
March 27, 2007
Per Curiam. We affirm the judgment of dismissal
substantially for the reasons set forth in the magistrate
judge's Report and Recommendation dated April 13, 2006, which
the district judge adopted in an Order dated May 5, 2006. We
add only the following comments.
A commercial dispute between Bahig Bishay and
Brighton Avenue Associates, LLC ("BAA") was submitted to
arbitration conducted by the American Arbitration Association
("AAA"). In due course, a three-member arbitration panel
issued a final award mostly favorable to BAA. Dissatisfied
with the result, Bishay filed the instant pro se action against
both AAA and BAA, alleging that the award had been "procured by
corruption, fraud, or undue means" within the meaning of the
Federal Arbitration Act ("FAA"), 9 U.S.C. § 10(a)(1). Federal
jurisdiction was premised on diversity of citizenship. Cf.
Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d 321, 328 (1st Cir.
2000) ("the FAA itself does not create a basis for federal
subject matter jurisdiction"). Defendants moved to dismiss for
lack of jurisdiction (among other grounds)--contending that,
because Bishay and BAA were both citizens of Massachusetts, the
requisite "complete diversity of citizenship" was lacking.
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). The
district court agreed and dismissed on that basis.
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Bishay advances a single challenge to this ruling--
insisting that, because BAA is only a "nominal" party to the
dispute, its citizenship can be disregarded for purposes of
determining diversity. See, e.g., Navarro Savings Ass'n v.
Lee, 446 U.S. 458, 461 (1980) ("a federal court must disregard
nominal or formal parties and rest jurisdiction only upon the
citizenship of real parties to the controversy"). He
characterizes the instant suit as a simple contract dispute
between himself and AAA. In his view, he enlisted AAA to
perform a service; AAA failed to do so; and so he is entitled
to a refund of all monies he paid to AAA.
Yet Bishay's complaint sought much more than a refund
from AAA; it also requested a court order vacating the
arbitration award and directing that his commercial dispute
with BAA be considered de novo by a new arbitration panel
unaffiliated with AAA (or by the court itself). Given that the
award was predominantly in BAA's favor, Bishay is thus mistaken
in arguing that BAA was a nominal party with "no interest in
the controversy." Salem Trust Co. v. Mfrs.' Finance Co., 264
U.S. 182, 190 (1924); see, e.g., H.D. Corp. of Puerto Rico v.
Ford Motor Co., 791 F.2d 987, 992 (1st Cir. 1986) (noting that
one factor in determining whether citizenship of non-diverse
party can be disregarded is "to what extent a judgment rendered
in the person's absence might be prejudicial" to that party)
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(quoting Fed. R. Civ. P. 19(b)). We therefore agree with the
district court that complete diversity of citizenship was
absent and that the court consequently lacked jurisdiction.
Affirmed.
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