Scott A. SELDIN, Plaintiff-Appellant v. Theodore M. SELDIN; Stanley C. Silverman; Mark Schlossberg, Defendants-Appellees; Derry Seldin; Traci Seldin Moser, Intervenor Plaintiffs-Appellants v. Theodore M. Seldin; Stanley C. Silverman; Mark Schlossberg, Defendants-Appellees
No. 17-1045, No. 17-1047
United States Court of Appeals, Eighth Circuit.
January 2, 2018
Submitted: November 16, 2017
879 F.3d 269
cause it appears that with all of the discrepancies, the only clear evidence that Fuller is bisexual is because he says so. Any added risk to his life is brought on by his careless and seemingly indiscriminate sexual behavior. Fuller has filed a motion to reopen with affidavits reflecting on his activities many years ago. The Board denied his motion and the current petition seeks review of that order. As the court explains, the Board has reviewed Fuller‘s new evidence and its denial is largely discretionary and unreviewable. Of course, there is some concern that because Fuller has publically identified himself as bisexual, he faces danger in Jamaica. Based on the earlier opinion as well as the dissent, it is probable that his sexual activity had been well known locally long ago. For example, as thе opinion indicated, “he told the IJ while married to Wood he had multiple affairs with men and women,” and he partied in the “gay-friendly resort town of Ocho Rios.” As the opinion also notes, his family (his sisters, a cousin, and apparently his parents) have effectively abandoned him because of his sexual activity. The dissent also noted his testimony disclosed “at length and in detail about his being bisexual and having had a number of sexual relаtionships with both men and women beginning when he was a preteen.” The dissent also pointed out “another wrinkle,” “that homosexuals often are antipathetic to bisexuals,” citing another publication entitled, “Why Do Gays Hate Bisexuals.” Even though it does not appear that he was hiding his sexual activity while in Jamaica, it is obvious he would rather be here than go back there. He committed a serious crime here, and he аppears rightfully deportable. But all of that is for the Board of Immigration Appeals to decide.
One option the Board may consider would be to deport him to a country other than Jamaica, рerhaps giving him an opportunity for a voluntary departure to any country he prefers. For now, we deny his motion for a stay of removal, but grant his motion to proceed in forma pauperis in his now pending рetition to reopen.
Matthew M. Enenbach, Allison M. Gutierrez, Bartholomew L. McLeay, KUTAK & ROCK, Omaha, NE, for Plaintiff-Appellant.
Mary L. Hewitt, James P. King, Robert Lawrence Lepp, Erin R. Robak, Mathew T. Watson, MCGILL & GOTSDINER, Omaha, NE, for Defendant-Appellee Theodore M. Seldin.
Donald English, ENGLISH & GLOVEN LAW FIRM, for Defendant-Appellee Mark Schlossberg.
Diana J. Vogt, SHERRETS & BRUNO, Omaha, NE, for Intervenor Plaintiffs-Appellants.
Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
In 2010, feuding members of the Seldin family entered into a Separation Agreement to divide jointly owned assets. The Separation Agreement contained an arbitration clause, requiring the parties to arbitrаte any claims involving their jointly owned property. Rather than arbitrating, Appellant Scott Seldin (“Scott“) filed a lawsuit for an accounting of a trust that he claims was not included in the Separation Agreement. Thе district court dismissed his claim, finding that the federal courts lacked subject matter jurisdiction to hear the lawsuit. We disagree.
I. Background
Millard Seldin (“Millard“), Scott‘s father, created the Millard Seldin Children‘s Master Trust (“MSCM Trust“) in 1992. Theodore Seldin and Stanlеy Silverman (together “Appellees“) were designated as two of the trustees for the MSCM Trust.
In February 2010, Scott and Millard entered into the Separation Agreement with Appellees in order to split the assets in which they had joint interests. The Separation Agreement included an arbitration clause to settle any disputes arising out of or relating to the Separation Agreement or the parties’ joint ownership properties or entities. In October 2011, the parties initiated arbitration proceedings. In February 2012, the parties agreed to mediate, using the arbitrator as the mediator. The mediation fell apart, and the arbitration resumed. Following the mediation, Scott began lodging complaints against the arbitrator/mediator, cаlling for his resignation, but the arbitrator/mediator refused.
Scott then filed three separate lawsuits against Appellees in the Douglas County, Nebraska District Court regarding the parties’ joint interests, and each of the lawsuits was dismissed. Scott filed his first state court lawsuit in April 2012, alleging claims that were already pending in arbitration. Among his claims was a cause of action for a full accounting from 1987 to present. The court dismissed Scоtt‘s claim, finding that he was required to submit to arbitration.
In June 2012, Scott filed a second state court lawsuit, amending the complaint on October 10, 2012. In March 2013, the state court similarly dismissed the second lawsuit, ordering the partiеs to resolve their issues through arbitration. In September 2012, Scott filed a demand with the American Arbitration Association (the “AAA“) for the disqualification of the arbitrator. The AAA reaffirmed the arbitrator. Scott filed a Motion to Reconsider or Clarify Ruling, and the AAA denied the motion.
In December 2012, Scott filed a third lawsuit asking the state court to vacate the AAA ruling or to enjoin arbitration, remove the arbitrator, and reinstate the first lawsuit. In Aрril 2013, the state court dismissed the third lawsuit. Scott appealed each of the lawsuits. Pending the appeals, the arbitrator stepped down, and the designated replacement arbitrator refused to serve. The parties agreed to select a new arbitrator through the AAA. Appellees moved to dismiss the appeals as moot, and on August 28, 2013, the Nebraska Supreme Court granted their motion.
In October 2013, a new arbitrator was appointed, and the arbitration recommenced. On July 29, 2016, Scott filed a lawsuit in federal court against Appellees, requesting an accounting of the MSCM Trust. Intervenors attempted to intervene, but their motion was denied. Appellees filed a motion to dismiss for lack of subject matter jurisdiction. The district court granted Appellees’ motion to dismiss, holding that the court did not have jurisdiction because there was a binding arbitration agreement which gave the arbitrator the authority to first decide the extent of his jurisdiction. Furthermore, the court stated it did not have jurisdiction because res judicata and issue preclusion applied. Finally, the court also found that the Rooker-Feldman doctrine barred the court from hearing Scott‘s claim.
On April 27, 2017, after all of the briefing was submitted for this appeal, the arbitrator enterеd a Final Award, finding that the Appellees are entitled to recover from Scott a net amount of $2,977,031, plus post-award simple interest from the date
II. Discussion
The sole issue decided in this appeal is whether the district court erred in granting Appellees’ motion to dismiss for lack of subject matter jurisdiction. “We review de novo the grant of a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).” City of Benkelman v. Baseline Eng‘g Corp., 867 F.3d 875, 879-80 (8th Cir. 2017) (quoting Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010)).
The district court granted Appellees’ 12(b)(1) motion, finding that the court lacked subject matter jurisdiction to hear Scott‘s claim because the parties had entered intо an arbitration agreement. This case is controlled by our decision in City of Benkelman v. Baseline Engineering Corp., where we held that a
Here, the parties entered an arbitration agreement, but the existence of that agreement alone does not deprive the federal courts of jurisdiction. Because a valid arbitratiоn clause alone does not strip the federal courts of subject matter jurisdiction, we find that the district court erred in dismissing Scott‘s claim on that basis. See id. The appropriate procedure would have been for the district court to stay or dismiss the case based on a
The district court alternatively stated that it lacked subject matter jurisdiction over Scott‘s claim because res judicata and collаteral estoppel apply. The Supreme Court has stated that “[p]reclusion, of course, is not a jurisdictional matter.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); see also In re Athens/Alpha Gas Corp., 715 F.3d 230, 235 (8th Cir. 2013) (stating that res judicata is a “non-jurisdictional question“). Because preclusion is not a jurisdictional matter, the district court erred when it found that res judicata and collateral estoppel were sufficient grounds to grant a
The district court also found it lacked subject matter jurisdiction based on Rooker-Feldman. To the extent that Scott is a “state court loser” who is challenging the statе court‘s order for his accounting claims to be arbitrated, we agree with the district court that Rooker-Feldman would apply, barring his claim in federal court.
III. Conclusion
We reverse and remand to the district court for further proceedings consistent with this oрinion.