ARETAKIS v. FIRST FINANCIAL EQUITY CORP (2018)

SUMMARY ORDER

Plaintiff-appellant, John A. Aretakis, an attorney appearing pro se, appeals the October 10, 2017 order of the United States District Court for the Southern District of New York (Forrest, J.) granting the defendants-appellees’ motion to compel arbitration. We assume the parties’ familiarity with the factual background and procedural history of this case, as well as with the issues on appeal.

Before the district court, Aretakis principally argued the arbitration clause in a 2010 IRA Application signed by his now-deceased uncle, for whose estate Aretakis serves as executor, was unenforceable. He did so by challenging the validity of the contract, not the validity of the arbitration clause.

We review decisions to compel arbitration de novo. See United Steel Workers Local 4-5025 v. E.I. DuPont de Nemours & Co., 565 F.3d 99, 101 (2d Cir. 2009) (per curiam).¹ The factual findings underlying such a decision are reviewed for clear error. George v. LeBeau, 455 F.3d 92, 93 (2d Cir. 2006). “Challenges to the validity of arbitration agreements ․ can be divided into two types. One type challenges specifically the validity of the agreement to arbitrate. The other challenges the contract as a whole.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). “[U]nless [a] challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.” Id. at 445-46, 126 S.Ct. 1204. Because Aretakis challenges the validity of the contract, and not the validity of the specific arbitration provision, the district court properly compelled arbitration. When pressed at oral argument as to whether he challenged the arbitration provision below, Aretakis conceded that he had forfeited any such argument: he made only the “broader” argument related to the contract as a whole. See United States v. Harrell, 268 F.3d 141, 146 (2d Cir. 2001) (“An issue is reviewable on appeal only if it was pressed or passed upon below.”); United States v. Braunig, 553 F.2d 777, 780 (2d Cir. 1977) (“[W]here a party has shifted his position on appeal and advances arguments available but not pressed below, and where that party has had ample opportunity to make the point in the trial court in a timely manner, waiver will bar raising the issue on appeal.”).

On appeal, Aretakis also argues that the motion to compel below should not have been entertained due to an apparent electronic filing error. In his opposition to the motion to compel arbitration below, Aretakis did not argue that the motion was deficiently filed and should not be considered. He opposed the motion on the merits and lost. Now, he seeks to invalidate the motion. As a threshold matter, “we generally do not consider arguments not raised below.” Caiola v. Citibank, N.A., 295 F.3d 312, 327 (2d Cir. 2002). At oral argument, Aretakis admitted that he did not know there was a filing error until well after the motion to compel had been briefed and ruled on by the district court. In any event, Aretakis’ argument is without merit. Aretakis was aware of the defendants’ motion to compel arbitration: he responded to it with a substantive brief. Aretakis has admitted that he was not prejudiced in any way by the electronic filing error.

We have considered Aretakis’ remaining arguments and found them without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOOTNOTES

1.   Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and citations.