

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 97-1407

                       MICHAEL NWOGUGU,
                    Plaintiff, Appellant,

                              v.

                      PAINEWEBBER INC.,
      AND BOARD OF DIRECTORS OF PAINEWEBBER PROPERTIES,
                    Defendants, Appellees.
                                         

Misc. No. 97-8020

                   IN RE:  MICHAEL NWOGUGU,
                         Petitioner.
                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

      [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                                   
                                         

                            Before

           Boudin, Stahl and Lynch, Circuit Judges.                                                              

                                         

Michael Nwogugu on brief pro se.                           
David  J.   Kerman,  Mark  C.   DiVincenzo  and   Jackson,  Lewis,                                                                              
Schnitzler &amp; Krupman on brief for appellees.                            

                                         

                       OCTOBER 2, 1997
                                         

     Per Curiam.    Michael Nwogugu  appeals  pro se  from  a                                                                

district  court judgment dismissing his complaint in light of

pending arbitration,  as well  as  from the  denial of  post-

judgment motions  to reconsider and  to reopen his case.   We

affirm.1                   1

     Contrary  to Nwogugu's suggestion, we think this case is

governed by the Federal Arbitration Act ("FAA"),  9 U.S.C.   

1-16, because  there was  a written  agreement  to submit  an

existing controversy  to arbitration, see  9 U.S.C.   2.   We                                                     

reject   Nwogugu's  contention  that   he  falls  within  the

exclusionary clause  in    1 of the  FAA because  the dispute

arises  out of  an  employment  contract.   In  Dickstein  v.                                                                     

duPont,  443  F.2d  783,  785 (1st  Cir.  1971),  this  court                  

narrowly  construed  the     1  exclusion  of  "contracts  of

employment of . . .  workers engaged in foreign or interstate

                                                    

   1Nwogugu also seeks,  by way of separate  motions, summary               1
disposition  of the instant appeal and reconsideration of our
previous  denial of mandamus  relief.  Although  Nwogugu does
not  seek  mandamus  relief  on  the  ground  that  appellate
jurisdiction  may  be  lacking,   and  appellees  have  never
questioned our appellate jurisdiction, we note that it is not
entirely  clear that the dismissal in favor of arbitration is
a  final, appealable order.  Compare McCarthy v. Providential                                                                         
Corp., 1997 WL 471876, at **2-4 (9th Cir. Aug. 20, 1997) (2-1                 
decision)  (dismissing, as  interlocutory, appeal  from order
compelling arbitration and dismissing  complaint) with Armijo                                                                         
v. Prudential  Ins. Co.  of America, 72  F.3d 793,  979 (10th                                               
Cir. 1995)  (holding that dismissal  as a result of  order to
compel arbitration  presents an  appealable final  decision).
We  need not resolve the jurisdictional  issue since it would
not  alter the  outcome.   We  deny the  motions for  summary
disposition  and reconsideration  of the  denial  of mandamus
relief on the ground that we  have found no error, much  less
clear and indisputable error. 

                             -2-

commerce"  as  limited  to those  employees  "involved  in or

closely related to the actual movement of goods in interstate

commerce."  Nwogugu was a real estate analyst.   Since he was

not  involved in  the  transportation industry  (or otherwise

involved in the  movement of goods), the  exclusionary clause

does not apply. 

     Although  Nwogugu  cites  to   civil  rights  and  other

statutes  in his  brief, we  are persuaded that  his lawsuit,

fairly construed, was limited  to common law claims.2   These                                                                2

common law  claims  appear to  be,  at bottom,  identical  to

claims  which Nwogugu agreed  to arbitrate, and,  indeed, was

pursuing in arbitration  during the pendency of  his lawsuit.

Under  the  circumstance,  the district  court  appropriately

dismissed   the  case,  see,  e.g.,  Alford  v.  Dean  Witter                                                                         

Reynolds,  Inc., 975  F.2d 1161,  1164 (5th  Cir.  1992), and                           

there is no  need for us to address  Nwogugu's arguments that

various statutory claims are non-arbitrable.3                                                          3

                                                    

   2Nwogugu's  amended complaint lists a series of common law               2
claimsand this same list is repeated in subsequent filings.  

   3Nwogugu also contends that his common law claims are non-               3
arbitrable  because  punitive  damages  are  unavailable   in
arbitration.  In support of this argument, he points out that
the employment contract  provides that it "shall  be governed
by the law of the State of New York," and that New York state
law  prohibits  arbitral  awards  of  punitive  damages,  see                                                                         
Garrity v. Lyle  Stuart, Inc., 40 N.Y.2d 354,  353 N.E.2d 793                                         
(1976).  Nwogugu raised this argument for the first time in a
post-judgment motion.  See FDIC v. World Univ. Inc., 978 F.2d                                                               
10, 16  (1st Cir.  1992) (observing  that Rule 59(e)  motions
should  not  be used  to  raise  arguments which  could,  and
should, have been made before judgment issued).   We perceive

                             -3-

     Nwogugu complains  that "justice  and the  right to  due

process"  demanded that the  district court hold  hearings on

his various  preliminary  motions (including  motions  for  a

temporary restraining order,  preliminary injunction, writ of

attachment, and  summary judgment).    However, the  district

court properly deferred  ruling on these motions  pending its

decision on the motion to dismiss, and the dismissal obviated

the need to explicitly address them.

     Nwogugu  argues that he was entitled to summary judgment

on  the ground that  defendants failed to  oppose his (tardy)

statement of facts.   See Carreiro v.  Rhodes Gill &amp; Co.,  68                                                                    

F.3d  1443, 1446  n.3 (1st Cir.  1995) (observing  that under

Local  Rule 56.1 of  the District of  Massachusetts, properly

supported  facts set  forth  by the  moving party  are deemed

admitted  unless controverted by the factual statement of the

opposing party).  This argument fails.  Having concluded that

Nwogugu agreed to  arbitrate his dispute, the  district court

appropriately refrained from reaching the merits of Nwogugu's

                                                    

no manifest error  of law.  "The potential  unavailability of
punitive damages  is not  a ground for  denying effect  to an
otherwise valid  agreement to  arbitrate."   Morgan v.  Smith                                                                         
Barney, Harris Upham &amp; Co., 729 F.2d 1163, 1168 n.7 (8th Cir.                                      
1984).  We add that it is  by no means apparent that punitive
damages, if otherwise  proper, are unavailable to  Nwogugu in                                                                      
arbitration.   See  Mastrobuono  v. Shearson  Lehman  Hutton,                                                                         
Inc.,  115  S.  Ct.  1212,  1216 (1995)  (observing  that  if                
contracting  parties  agree to  include  claims for  punitive
damages within the  issues to be arbitrated, the  FAA ensures
that their agreement  will be enforced according to its terms
even  if a  rule of  state law  would otherwise  exclude such
claims from arbitration).   

                             -4-

motion for summary judgment.   

     Nwogugu  contends  that  his  lawsuit should  have  been

reopened based upon  a post-dismissal letter to  the National

Association of Securities Dealers requesting to withdraw  his

claims in  arbitration conditional  upon  the district  court

reopening  his action.   We  disagree.   Having agreed  to an

alternative  forum, Nwogugu cannot simply change his mind and

decide  he wants  a  judicial forum  after  all.   Otherwise,

arbitration agreements would be unenforceable.

     We   have  carefully   considered  Nwogugu's   remaining

arguments and reject them as without merit.  Accordingly, the

judgment below is affirmed.                                      

                             -5-
