UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.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, MCSWEENEY, 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 Appellees.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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 concluded 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 controversy 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 purposely led him to wrongly believe that stop-loss protection was available to limit his risk. Miller maintains that, as a result of the

defendants' actions, he lost $40,767.29. Not surprisingly, the defendants 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 writing.

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 Virginia. 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, however, 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 controversy was insufficient to confer jurisdiction on the court under 28

U.S.C. § 1332.* By consent of the parties, the matter was referred to

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*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 District of Virginia. Upon transfer, the defendants moved for reconsideration 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 delivered by facsimile, because it is plain that the amount stated by Miller

to be in controversy does not meet the $50,000 jurisdictional threshold 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).

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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 agreements to arbitrate or review arbitration awards; in such situations, a complainant'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 dispute to be decided in a federal forum, it must fall within the familiar dictates of 28 U.S.C. § 1332. That statute provides for the original

jurisdiction of the district courts in civil actions involving, inter alia, citizens of different states, where the amount in controversy exceeds

$50,000. 28 U.S.C.A. § 1332 (West 1993).

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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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