     14-0930-cv
     Giusti v. Morgan Stanley

 1                                   UNITED STATES COURT OF APPEALS
 2                                       FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 8   BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 9   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
10   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
11   NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
12   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14
15           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
16   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
17   14th day of October, two thousand fourteen.
18
19   Present:    ROSEMARY S. POOLER,
20               REENA RAGGI,
21               PETER W. HALL,
22                           Circuit Judges.
23   _____________________________________________________
24
25   ROBERT M. GIUSTI,
26
27                                     Petitioner-Appellant,
28
29                              v.                                        14-0930-cv
30
31   MORGAN STANLEY SMITH BARNEY, LLC,
32
33                           Defendant-Appellee.
34   __________________________________________
35
36   Appearing for Appellant:          Katie Ambroziak, Robert Giusti, Esq. & Associates, PLLC,
37                                     Bayside, N.Y.
38
39   Appearing for Appellee:           Deborah G. Evans, Michaels, Ward & Rabinovitz, LLP,
40                                     Boston, Mass.
41
42           Appeal from the United States District Court for the Southern District of New York
43   (Cote, J.).
44
45        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
46   AND DECREED that the order of dismissal of said District Court be and it hereby is
47   AFFIRMED.
 1            Robert M. Giusti appeals from the March 12, 2014 order of the United States District
 2   Court for the Southern District of New York (Cote, J.), dismissing for lack of subject matter
 3   jurisdiction his petition to vacate an arbitration award by the Financial Industry Regulation
 4   Authority (“FINRA”). On December 9, 2013, the arbitration panel issued an award against Giusti
 5   on Morgan Stanley’s claims for breach of contract arising out of Giusti’s alleged failure to pay
 6   the balance on a promissory note. On March 3, 2014, Giusti filed the present petition in the
 7   district court, seeking vacatur of the award on the grounds of arbiter misconduct. We assume the
 8   parties’ familiarity with the underlying facts, procedural history, and specification of issues for
 9   review.
10
11            Giusti asserts that the district court had subject matter jurisdiction over his petition to
12   vacate pursuant to Section 10 of the Federal Arbitration Act (“FAA”). 9 U.S.C. § 10. It is well
13   settled that the FAA “bestows no federal jurisdiction but rather requires for access to a federal
14   forum an independent jurisdictional basis over the parties’ dispute.” Vaden v. Discover Bank, 556
15   U.S. 49, 59 (2009) (internal quotation marks and alterations omitted) (quoting Hall Street
16   Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 581-582 (2008).
17
18            The district court correctly concluded that Giusti failed to supply an independent basis for
19   federal jurisdiction. First, both parties concede that diversity jurisdiction is absent because the
20   petitioner is a resident of New York and Morgan Stanley is headquartered in New York. 28
21   U.S.C. § 1332(a), (c). Second, Giusti’s motion to vacate “does not present a question arising
22   under the Constitution, laws or treaties of the United States.” United States v. Am. Soc’y of
23   Composers, Authors & Publishers, 32 F.3d 727, 731 (2d Cir. 1994); 28 U.S.C. § 1331. Federal
24   courts may “look through” a petition to vacate an arbitration award to assess whether, “save for
25   the arbitration agreement,” the court would have jurisdiction over “the substantive controversy
26   between the parties.” Vaden, 556 U.S. at 53 (alterations omitted). Here, the underlying dispute
27   was contractual in nature. Likewise, Giusti’s petition to vacate merely alleges procedural and
28   evidentiary errors, but does not claim that the panel acted in “manifest disregard of federal law.”
29   Cf. Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 25 (2d Cir. 2000) (emphasis added). Giusti
30   therefore failed to establish that his right to relief “necessarily depends on resolution of a
31   substantial question of federal law.” Id. (internal quotation marks omitted). Accordingly, the
32   district court properly dismissed the petition sua sponte. See Durant, Nichols, Houston, Hodgson
33   & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (“If subject matter jurisdiction is
34   lacking and no party has called the matter to the court’s attention, the court has the duty to
35   dismiss the action sua sponte.”).
36
37           Giusti requests that, in the event we find subject matter jurisdiction lacking, we transfer
38   his case to state court pursuant to 28 U.S.C. § 1631. This we cannot do. Section 1631 authorizes
39   a federal court in which a case has been improperly filed to transfer the case to another federal
40   court in which the action or appeal could have been brought. It does not, however, provide for the
41   transfer of an action to state court. McLaughlin v. Arco Polymers, Inc., 721 F.2d 426, 428-29 (3d
42   Cir. 1983). Specifically, Section 1631 authorizes the transfer of an action “filed in a court as
43   defined in section 610 of this title or an appeal . . . to any other such court in which the action or
44   appeal could have been brought at the time . . . .” 28 U.S.C. § 1631 (emphasis added). Because
45   Section 610 enumerates only federal courts, 28 U.S.C. § 610, we lack the authority to transfer
46   Giusti’s petition to a New York court. See Whitman v. Boats By George, Inc., No. 91-CV-792,

                                                       2
 1   1992 WL 57162, at *4 (N.D.N.Y. Mar. 16, 1992).
 2
 3            Accordingly, appellant’s motion for transfer is DENIED and the order of dismissal of the
 4   district court is hereby AFFIRMED.
 5
 6
 7                                                       FOR THE COURT:
 8                                                       Catherine O’Hagan Wolfe, Clerk
 9
10
11
12




                                                     3
