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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANDREW M. LEARNED, No. CIV.S-04-1833 EJG DAD PS

Plaintiff,

v. FINDINGS AND RECOMMENDATIONS

MBNA AMERICA BANK, N.A.,

Defendant.

____________________________/

This matter came before the court on April 22, 2005, for

hearing on defendant’s motion to dismiss for lack of subject matter

jurisdiction. Plaintiff Andrew M. Learned, proceeding pro se,

appeared on his own behalf. Victor S. Patenaude appeared on behalf

of defendant MBNA America Bank, N.A. Having considered all written

materials submitted in connection with the motion, and after hearing

oral argument, for the reasons set forth below, the undersigned will

recommend that defendant’s motion be granted and that this action be

dismissed for lack of subject matter jurisdiction.

/////

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BACKGROUND

This action arises out of dispute between plaintiff and

defendant regarding a credit card debt and the resulting arbitration

of that dispute. Plaintiff, proceeding pro se, initiated this action

by filing a notice of motion and motion to vacate the arbitration

award pursuant to the provisions of the Federal Arbitration Act, 9

U.S.C. § 1 et seq. (“FAA”). Plaintiff’s motion alleged jurisdiction

under the FAA. Nonetheless, by order filed October 27, 2004, the

undersigned directed plaintiff to show cause why this case should not

be dismissed for lack of subject matter jurisdiction. That order

explained that “[i]t is well-established that even when a petition is

brought under the [FAA], a petitioner seeking to confirm or vacate an

arbitration award in federal court must establish an independent

basis for federal jurisdiction.” Carter v. Health Net of California,

Inc., 374 F.3d 830, 833 (9th Cir. 2004)(citing cases). Plaintiff’s

motion and supporting papers cited no basis for federal question

jurisdiction. Moreover, since the amount of controversy is only

$40,240.82, diversity jurisdiction did not lie.

Plaintiff timely responded to the court’s order to show

cause. Thereafter, defendant MBNA America Bank, N.A. filed

opposition to plaintiff’s motion to vacate as well as a motion to

dismiss for lack of subject matter jurisdiction, although defendant

did not notice the motion for hearing. Plaintiff filed a “response”

to defendant’s motion. Then, on March 14, 2005, defendant re-filed

its motion to dismiss for lack of subject matter jurisdiction,

noticing that motion for hearing on April 22, 2005. Plaintiff has

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not filed an opposition to that motion, although his “response” to

defendant’s initial motion to dismiss (i.e., the one not noticed for

hearing) is responsive to defendant’s arguments. Therefore, the

undersigned has considered plaintiff’s response filed on February 4,

2005, as plaintiff’s opposition to the motion to dismiss pending

before the court.

LEGAL STANDARDS

Rule 12(b)(1) allows a party by motion to raise the defense

that the court lacks “jurisdiction over the subject matter” of a

claim. “A motion to dismiss for lack of subject matter jurisdiction

may either attack the allegations of the complaint or may be made as

a ’speaking motion’ attacking the existence of subject matter

jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. &

Electronics, 594 F.2d 730, 733 (9th Cir. 1979)(citations omitted). 

In the latter instance, no presumption of truthfulness attaches to

plaintiff's allegations. Id. “[T]he district court is not

restricted to the face of the pleadings, but may review any evidence,

such as affidavits and testimony, to resolve factual disputes

concerning the existence of jurisdiction.” McCarthy v. United

States, 850 F.2d 558, 560 (9th Cir. 1988)(citations omitted). The

burden of proof on a Rule 12(b)(1) motion is on the party asserting

jurisdiction. Thornhill Publ’g Co., 594 F.2d at 733.

ANALYSIS

In opposition to defendant’s motion, plaintiff asserts that

an independent basis for federal jurisdiction over this action exists

because the arbitrator manifestly disregarded plaintiff’s federal due

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1 Plaintiff, proceeding pro se, initiated this action by filing

a “motion” to vacate the arbitration award. There is no “petition”

on file in this case.

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process rights. More specifically, plaintiff contends that there was

in fact no arbitration agreement between the parties and that the

arbitrator therefore violated due process in proceeding with the

arbitration over plaintiff’s objection. The undersigned finds

plaintiff’s argument unpersuasive.

The court recognizes that an allegation of manifest

disregard of federal law may give rise to federal question

jurisdiction. See Luong v. Circuit City Stores, 368 F.3d 1109, 1111-

12 (9th Cir. 2004)(finding a federal question where the petition

alleged that the arbitrator "ignored federal law as well as refused

to correctly apply federal law" and included copy of arbitrator's

decision as exhibit to the petition). However, neither plaintiff’s

initial notice of motion and motion to vacate the arbitration award

nor the memorandum of points of authorities in support thereof

alleges a constitutional violation or any other question of federal

law. See Luong, 368 F.3d at 1111 (“In sum, a federal question for

purposes of subject matter jurisdiction must be presented in a wellpleaded petition.”).1 On the contrary, those initial papers as well

as plaintiff’s opposition to the pending motion suggest that the

disagreement between the parties is a simple contract dispute. 

Indeed, defendant represents that it has already filed a petition to

confirm the arbitration award in state court where plaintiff

presumably will have an opportunity to raise his concerns regarding

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whether his credit card contract included a valid arbitration

provision. Thus, federal question jurisdiction is lacking.

Moreover, even if plaintiff had sufficiently alleged a due

process violation, his motion to vacate the arbitration award would

fail. It is undisputed that the arbitration at issue occurred

through the National Arbitration Forum, a private entity. As such

there was no state action giving rise to a constitutional violation. 

See Perpetual Securities, Inc. v. Tang, 290 F.3d 132, 138-39 (2d Cir.

2002)(finding a claim that compulsory arbitration requirement

violated a brokerage's due process rights was patently without merit

where the arbitrator was not a state actor); Federal Deposit Ins.

Corp. v. Air Florida System, Inc., 822 F.2d 833, 842 n.9 (9th Cir.

1987)(“Although Congress, in the exercise of its commerce power, has

provided for some governmental regulation of private arbitration

agreements, we do not find in private arbitration proceedings the

state action requisite for a constitutional due process claim.”).

For these reasons, the undersigned finds that plaintiff has

failed to meet his burden of establishing this court’s jurisdiction. 

The undersigned will therefore recommend that defendant’s motion to

dismiss be granted.

Finally, in his opposition plaintiff requests that he be

granted additional time (i.e., thirty days) to file a petition to

vacate the arbitration award in state court should this court grant

defendant’s motion to dismiss. However, plaintiff has cited no

authority which would permit this court to direct the state court to

accommodate his request. Further, as noted above, defendant

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represents that it has commenced proceedings in state court to

confirm the award. Presumably, plaintiff will be able to raise his

arguments in support of vacating the arbitration award in connection

with those proceedings. For these reasons, the court will recommend

that plaintiff’s request for additional time be denied.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Defendant’s motion to dismiss for lack of subject

matter jurisdiction be granted;

2. Plaintiff’s request for additional time to file a

petition to vacate arbitration award in state court be denied; and

3. This action be dismissed in its entirety.

These findings and recommendations are submitted to the

United States District Judge assigned to the case pursuant to the

provisions of 28 U.S.C. § 636(b)(l). Within ten (10) days after

being served with these findings and recommendations, any party may

file written objections with the court and serve a copy on all

parties. Such a document should be captioned “Objections to Findings

and Recommendations.” The parties are advised that failure to file

objections within the specified time may waive the right to appeal

the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th

Cir. 1991).

DATED: April 22, 2005.

DAD:th

Ddadl\orders.prose\learned1833.f&r

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