                                                        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.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 2:04-CV-1465
                       --------------------

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that this opinion should not be published and is not precedent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
                               -3-

court’s denial of Shoemaker’s motion for a new trial and

reconsideration.

     AFFIRMED.
