                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUL 16 2003
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    DONALD E. SMITTLE, Trustee for
    Donald E. Smittle Loving Trust,

              Plaintiff-Appellant,

    v.                                                 No. 02-6409
                                                 (D.C. No. 01-CV-1728-L)
    FIDELITY BROKERAGE                                 (W.D. Okla.)
    SERVICES, LLC; SECURITIES AND
    EXCHANGE COMMISSION;
    WILLIAM B. FEDERMAN;
    STUART W. EMMONS; FEDERMAN
    & SHERWOOD; MARK E.
    NOWICKI; JOHN R. PRESTON;
    THOMAS A. BAMBURGER;
    ROGER D. MINNEY; NASD
    DISPUTE RESOLUTION, INC.,

              Defendants-Appellees.


                          ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and       HARTZ ,
Circuit Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Donald E. Smittle, appearing    pro se , appeals the district court’s

order dismissing, without prejudice, his motion to vacate an arbitration award for

lack of subject matter jurisdiction. We affirm.

      Plaintiff filed an arbitration claim against Fidelity Brokerage Services,

L.L.C. (Fidelity) with the National Association of Securities Dealers (NASD),

claiming that Fidelity had arbitrarily and negligently revoked all margin in his

brokerage account. The NASD arbitration panel dismissed plaintiff’s statement

of claim. Plaintiff then filed a motion to vacate the arbitration decision in the

United States District Court for the Western District of Oklahoma, claiming the

arbitration award was “irrational, arbitrary, and capricious, with no basis in

evidence, and in contradiction of undisputed facts.” R. Doc. 1, at 5. Although

his arbitration claim named only Fidelity as a broker, his motion to vacate also

named the attorneys who represented Fidelity, the Securities and Exchange

Commission, the NASD case administrator, the three NASD arbitration panel

members and NASD Dispute Resolution, Inc.




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       For substantially the same reasons set forth by the district court in its

thoughtful and well-analyzed order, we agree that subject matter jurisdiction is

lacking. As the district court correctly noted, because the Federal Arbitration Act

“does not create any independent federal-question jurisdiction,” the party seeking

confirmation must demonstrate a jurisdictional basis under either 28 U.S.C.

§ 1331 (federal question) or § 1332 (diversity).      P & P Indus., Inc. v. Sutter

Corp. , 179 F.3d 861, 866 (10th Cir. 1999) (quotation omitted). Plaintiff’s

complaint failed to allege any colorable federal question.       See Martinez v. United

States Olympic Comm. , 802 F.2d 1275, 1280 (10th Cir. 1986) (holding that

“federal question jurisdiction must appear on the face of a plaintiff’s well-pleaded

complaint,” and “[t]he complaint must identify the statutory or constitutional

provision under which the claim arises, and allege sufficient facts to show that the

case is one arising under federal law”). He further failed to allege diversity

jurisdiction.   See Wis. Dep’t of Corr. v. Schacht   , 524 U.S. 381, 388 (1998)

(holding that “[a] case falls within the federal district court’s original diversity

jurisdiction only if diversity of citizenship among the parties is complete,    i.e. ,

only if there is no plaintiff and no defendant who are citizens of the same State”)

(quotations omitted), and    Penteco Corp. Ltd. P’ship - 1985A v. Union Gas Sys.,

Inc. , 929 F.2d 1519, 1521 (10th Cir. 1991) (holding that plaintiff “must allege in




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his pleading the facts essential to show diversity jurisdiction”) (quotation

omitted).

      Plaintiff filed three post-judgment motions, which could be construed as

motions for reconsideration or motions to amend. In none of these motions did

plaintiff remedy his failure to allege a colorable federal-question. Nor did he

remedy his failure to allege complete diversity jurisdiction or rebut the evidence

that three of the defendants, William B. Federman, Stuart W. Emmons and

Federman & Sherwood, are, like plaintiff, residents of Oklahoma.

      Accordingly, the judgment of the district court is AFFIRMED. The

mandate shall issue forthwith.


                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Chief Judge




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