### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10219 Summary Calendar

CHRISTOPHER MICHAEL WANKEN, Plaintiff-Appellant,

versus JOHN DWIGHT WANKEN; RAYMOND JAMES FINANCIAL SERVICES, INC., Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas

No. 3:10-CV-556

Before REAVLEY, SMITH, and PRADO, Circuit Judges. JERRY E. SMITH, Circuit Judge: *

C hri s to p h er Wanken (“Wanken”) appeals the denial of hi s m otio n to vac at e U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 9, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-10219 Document: 00511617501 Page: 1 Date Filed: 09/29/2011No. 11-10219

an arbitration award and the grant of defendants’ motions to confirm the award. Finding no error, we affirm.

I. Wanken was terminated from his employment as a registered sales associate at Beacon Financial Advisors, a firm owned by his father, John Wanken, and operated as an independent branch office of Raymond James Financial Services, Inc. (“Raymond James”). Wanken filed for arbitration with the Financial Industry Regulatory Authority, claiming that he was a partner in Beacon Financi al an d accordingly deserved additional compensation as a result of hi s wro n gf ul termination. He also said that John Wanken and Raymond James had defamed him by listing, on a publicly available document, “Job Performance” as the basis for his termination. John Wanken counterclaimed, alleging that the arbitration was filed to harass him. After extensive discovery and argument, th e arbitration panel rejected the majority of Wanken’s claims but granted him $1,200 in costs from Raymond James and ordered that the basis for his termination be changed to “no-fault.” The panel also rejected all of John Wank e n ’ s c o unterclaims and assigned the costs to John Wanken and Raymond James. Wanken sued under 9 U.S.C. § 10(a) to vacate and modify the arbitration award, claiming that (1) the award wa s procured by fraud; (2) the arbitration panel did not allow him to complete his discovery requests; (3) the panel failed to enforce its discovery orders; (4) the panel refused to consider material evidence; (5) the panel was improperly biased; (6) the panel exceeded and improperly exercised its powers; and (7) John Wanken, Raymond James, and t h e i r attorneys engaged in fraud and misconduct in the arbitration proceedings. John Wanken and Raymond James filed motions to dismi s s , w h i ch the magistrate judge recommended be treated as motions to confirm the arbitration

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award and be granted. Wanken filed objections to the recommendation and an amended motion to vacate. The district court, after de novo review, accepted the recommendation and confirmed the award.

II. We review the confi r mation of an arbitration award de novo , using the

same standards as did the district court. See Wartsila Finland Oy v. Duke Capital, LLC, 518 F.3d 287, 291 (5th Cir. 2008) (citation omitted). The review of an award is “exceedingly deferential.” Brabham v. A.G. Edwards & Sons, Inc. , 376 F.3d 377, 380 (5th Cir. 2004). We may vacate an award only (1) where the award was procured by corr u ption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in r e f u s i n g to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the contr o v e rsy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded thei r p owers, or so imperfectly executed the m t h a t a mutual, final, and definite award upon the subject matter submitted was not made. 9 U.S.C. § 10(a). The burden of proof is on the party seeking to vacate the 1 award, and any doubts or uncertainties must be resolved in favor of upholding it. Brabham , 376 F.3d at 385 n.9 (citations omitted). Wanken argues that we should instead review the district court’s order

u n d e r t he motion-to-dismiss standard. That is incorrect; the court plainly treated the relevant motions as motions to confirm the arbitration award, exemSee also Citigr o u

p Globa l Ma rke ts, Inc. v. Baco n , 562 F.3d 349, 358 (5t h Cir. 2009) 1 (s tat ing that the ground s for vacating an arbit rat ion aw ard are res tri cte d to thos e se t for th in the Fede ral Arbit rat ion Act, s pec ifi call y in 9 U .S .C. § 10). 3 Case: 11-10219 Document: 00511617501 Page: 3 Date Filed: 09/29/2011No. 11-10219

plified by the fact that the court considered all the evidence in the record before confirming the award.

III. Wank en’s argument that the arbitration award is not supp ort e d b y th e evi

dence is irrelevant. We have no authority to review the merits of the award; our inquiry is limited to d e t e r m ining whether any of the statutory conditions for vacating it have been met. On that score, Wanken has not provided sufficient 2 evidence to satisfy any of those conditions.

A. Wanken contends that the award was procured by fraud. Specifically, he argues that John Wanken gave fraudulent testimony during the arbitration proceedings and concealed documents to deny him the opportunity to present his claims fully to the panel. Wanken also contends that John Wanken, Raymond James, and their attorneys generally engaged in fraud and misconduct during the proceedings. None of these arguments is supported by the record. Wanken claims that John Wanken gave fraudulent testimony by taking

a position in the arbitration proceeding that were inconsistent with those taken in proceedings before the Texas Workforce Commission—the inconsistent position being whether Wanken was an employee or independent contractor at Beacon Financial. Even assuming, however, that John Wanken did take inconsistent positions—the evidence of which is nothing more than Wanken’s assertions

—t h i s p a r ticular issue had no bearing on the arbitration proceedings. During arbitration, the issue was whether Wanken was a partner at Beacon Financial. John Wanken said he was not, and the arbitration panel agreed. Whether WanSee Ker gosi en v. Ocea n Ene rgy, Inc. , 390 F.3d346 , 357 (5t h Cir

. 2004) , ove rru le d o n 2 othergro unds by Citigroup Globa l Ma rke ts Inc

. v. Ba con , 562 F.3d349( 5th Cir. 200 9). 4 Case: 11-10219 Document: 00511617501 Page: 4 Date Filed: 09/29/2011No. 11-10219

ken was an employee or independent contractor is no t r e l e v ant to whether he

w as a partner—and John Wanken has consistently maintained that Wanken

was not a partner at Beacon Financial. Moreover, we cannot vacate an award merely because the arbitrators c h o se to credit one witness’s testimony over another’s. Wanken provides no support in the record, beyond his conclusional allegations, that John Wanken has concealed documents. He also provides no credible evidence supporting his vague allegation that John Wanken, Raymond James, and their attorneys engaged in fraud and misconduct in the arbitration. Accordingly, Wanken’s argument that the award should be vacated for fraud fails.

B. Wanken maintains that the award should be vacated because the panel di d n o t a llow him to complete his discovery requests, failed to enforce its discovery orders, and did not consider material evidence. The record does not support any of those contentions. The defendants produced over 6 0 0 0 p a ge s of documents in response to over 250 discovery requests. Th e p a n el, after conducting extensive hearings to resolve discovery issues, ordered the production of additional documents. The panel did not, however, order the production of all the documents Wanken requested, on the grounds that the requests were cumbersome and that some of the requests were irrelevant or not critica l t o t h e claims at issue. The panel’s decision on that score was eminently reasonable and does not amount to “misbehavior” or refusal to “hear evidence pertinent and material to the controversy.” Nor is it accurate to characterize the panel’s decision not to sanction John Wanken or Raymond James as a failure to enforce its discovery orders—the decision to sanction is discretionary, and Wanken has not sho w n any evidence to suggest that the panel’s exercise of that discretion was in error. Similarly, there

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is no evidence in the record to support Wanken’s claim that the panel failed to consider material evidence in rendering its decision.

C. Wanken contends that the arbitration panel was impro p erly biased against him. He does not, however, submit any evidence—beyond the fact that the panel did not grant him the relief he sought—supporting that allegation, nor is there any in the record.

D. Wanken claims the panel exceeded and improperly exercised its powers. Specifically, he asserts that it (1) failed to enforce its discovery orders; (2) issued contradictory orders regarding witnesses; (3) refused to reconsider a discovery ruling; (4) did not inform him he was entitled to a continuance; (5) issued a “gag” order that prevented him from communicating with the media; and (6) made an “ambiguous and contradictory” award. We have essentially addressed arguments (1), (2), (3), and (6), above. As to the others, Wanken offers no explanation as to how those occurrences violate the Federal Arbitration Act. Even assuming, arguendo , that the a r gu ments have factual merit, they do not amount to an excessive or improper exercise of the panel’s powers.

IV. Wanken aver s th at th e di s trict court failed to consider his amended motion to vacate. That claim has no merit. The court explicitly stated that, “even considering p laintiff's amended pleadings , plaintiff has failed to establish any grounds for vacating or modifying the arbitration award.” (Emphasis added.)

6 Case: 11-10219 Document: 00511617501 Page: 6 Date Filed: 09/29/2011No. 11-10219 V. W a n k e n m aintains that he was entitled to notice before the magistrate judge recommended converting the motions to dismiss to motions to confirm the arbitration award. Even assuming, arguendo , that notice was required and not give n b ef ore the magistrate judge made the recommendation, Wanken was given

a chance to object—an opportunity he used—before the district court conducted

a de novo review of the motions. Accordingly, Wanken was provided more than sufficient notice that the motions to dismiss could be treated as motions to confirm. AFFIRMED.

7 Case: 11-10219 Document: 00511617501 Page: 7 Date Filed: 09/29/2011