
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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 & 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 & 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 & 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-
