UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EUGENE D. MILLER,
Plaintiff-Appellant,

v.
                                                                   No. 95-2768
BRANCH, CABELL & COMPANY; ROGER
VON SELDENECK; DANIEL E.
GRANDSTAFF,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-95-458)

Argued: September 23, 1996

Decided: November 25, 1996

Before HALL, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Steve Larson-Jackson, LARSON-JACKSON, P.C.,
Washington, D.C., for Appellant. Shawn Urelius Jordanger, MC-
SWEENEY, BURTCH & CRUMP, P.C., Richmond, Virginia, for
Appellees. ON BRIEF: Charles D. Chambliss, Jr., CHARLES D.
CHAMBLISS, JR., P.C., Richmond, Virginia, for Appellant. Stephen
T. Gannon, LECLAIR RYAN, P.C., Richmond, Virginia, for Appel-
lees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Eugene D. Miller, a citizen of Colorado, appeals the district court's
order dismissing his motion to vacate or modify an arbitration award
entered on behalf of defendants Branch, Cabell, & Co., a Virginia
brokerage firm, and two of its employees, Roger D. von Seldeneck
and Daniel E. Grandstaff. The district court found that Miller had not
timely served the defendants with notice of the motion; the court con-
cluded that, as a result, it lacked jurisdiction over the subject matter
of the dispute.

We agree that the motion should have been dismissed for want of
subject matter jurisdiction, but on a different basis: the amount in con-
troversy alleged in the motion was, on its face, insufficient to meet
the jurisdictional threshold of 28 U.S.C. § 1332. We thus affirm the
order below.

I.

In 1992, Miller decided to begin investing in options contracts, so
he enlisted the defendants to advise and assist him. Miller alleges,
among other things, that the defendants rendered bad advice and pur-
posely led him to wrongly believe that stop-loss protection was avail-
able to limit his risk. Miller maintains that, as a result of the
defendants' actions, he lost $40,767.29. Not surprisingly, the defen-
dants deny any malfeasance; they contend that Miller was simply the
victim of his own poor judgment.

Unable to amicably resolve the matter, the parties submitted their
dispute to the National Association of Securities Dealers (NASD) for
arbitration. Each side presented its case before a panel of arbitrators
on November 22-23, 1994. Shortly thereafter, Miller moved to Colo-

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rado; he informed NASD of his new address both orally and in writ-
ing.

The panel ruled for the defendants. NASD transmitted a copy of
the award by facsimile to the manager of the apartment complex
where Miller now resides; Miller admits that he received the facsimile
on January 9, 1995, the date that it was sent. Another copy of the
award was sent by certified mail to Miller's former address in Vir-
ginia. It was forwarded to Miller's mother in Tennessee, who directed
it to Colorado, where Miller received it either on or after January 12.

Dissatisfied with the arbitration panel's decision, Miller sought to
have the district court vacate or modify the award. Proceeding pro se,
Miller filed an appropriate motion, styled as a"petition," on April 6,
1995, in the Western District of Virginia. The motion alleged that
numerous irregularities infected the arbitration process.

The defendants were not served with notice of the motion, how-
ever, until April 12, 1995, three months and three days after Miller
had received the facsimile. The aforementioned period is potentially
significant, because the law specifies that "[n]otice of a motion to
vacate, modify, or correct an award must be served upon the adverse
party or his attorney within three months after the award is filed or
delivered." 9 U.S.C.A. § 12 (West 1970). If the party filing the
motion fails to comply with the service provisions of the statute, the
district court has no jurisdiction to order relief. See Taylor v. Nelson,
788 F.2d 220, 225 (4th Cir. 1986).

The defendants requested that the district court dismiss Miller's
motion, asserting that the award had been "delivered" by facsimile on
January 9, 1995, and, therefore, that the motion had been untimely
served. The defendants also maintained that the amount in contro-
versy was insufficient to confer jurisdiction on the court under 28
U.S.C. § 1332.* By consent of the parties, the matter was referred to
_________________________________________________________________
*The Federal Arbitration Act, 9 U.S.C. § 1 et seq., is somewhat
unusual in that it "creates federal substantive law requiring the parties to
honor arbitration agreements, [but] it does not create any independent
federal-question jurisdiction under 28 U.S.C. § 1331 or otherwise."

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a magistrate judge. See 28 U.S.C.A. § 636(c)(1) (West 1993). The
magistrate judge denied the defendants' motion to dismiss, but
granted their alternative motion to transfer venue to the Eastern Dis-
trict of Virginia. Upon transfer, the defendants moved for reconsider-
ation of their motion to dismiss, giving rise to a hearing before the
district court.

The district court issued an opinion on July 31, 1995, ruling that
Miller's receipt of the award by facsimile on January 9, 1995, was
indeed a "delivery" within the meaning of 9 U.S.C. § 12. Thus,
because the defendants had not received service of Miller's motion to
vacate or modify the award within the three months specified by the
statute, i.e., April 9, 1995, the court entered an order granting the
defendants' motion to dismiss. Miller appeals.

II.

We need not decide today whether an award notice may be deliv-
ered by facsimile, because it is plain that the amount stated by Miller
to be in controversy does not meet the $50,000 jurisdictional thresh-
old of 28 U.S.C. § 1332. Miller's motion states on its face that the
actions of the defendants caused him damages of $40,767.29, and,
although that is a substantial sum, it is not substantial enough to
invoke the jurisdiction of the federal courts. See Clark v. Paul Gray,
Inc., 306 U.S. 583, 588-90 (1939) (dismissal of diversity action
appropriate on appeal where the pleadings, on their face, reveal that
the jurisdictional minimum has not been met).
_________________________________________________________________
Southland Corp. v. Keating, 465 U.S. 1, 15 n.9 (1984) (citation omitted).
Thus, in the absence of an independent ground authorizing the exercise
of its jurisdiction (e.g., diversity), a district court may not enforce agree-
ments to arbitrate or review arbitration awards; in such situations, a com-
plainant's sole remedy lies in state court.

In Miller's case, the only conceivable independent basis of jurisdiction
in the district court is diversity of citizenship; thus, in order for this dis-
pute to be decided in a federal forum, it must fall within the familiar dic-
tates of 28 U.S.C. § 1332. That statute provides for the original
jurisdiction of the district courts in civil actions involving, inter alia, citi-
zens of different states, where the amount in controversy exceeds
$50,000. 28 U.S.C.A. § 1332 (West 1993).

                      4
Miller insists that the amount in controversy "could" exceed
$50,000, particularly if interest, attorney fees, and the possibility of
punitive damages are considered. Miller's motion, however, contains
no demand for interest, fees, or punitive damages. Moreover, interest
is generally not counted toward the jurisdictional threshold, see 28
U.S.C. § 1332(a) (West 1993) (interest and costs excluded), and the
amount of attorney fees to which Miller has argued he is entitled
($6,382) would not, even in conjunction with the underlying damages
asserted, suffice to raise the amount in controversy to the required
level.

The order of dismissal is affirmed.

AFFIRMED

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