FIRST CAPITAL REAL ESTATE INVESTMENTS LLC v. Financial Industry Regulatory Authority, Inc., Respondent. (2019)

Appellant First Capital Real Estate Investments, LLC (“First Capital”) appeals from a February 13, 2019 order of the District Court denying First Capital's petition to vacate an arbitration award (“the award”), granting Appellee SDDCO Brokerage Advisors, LLC's (“SDDCO”) petition to confirm the award, and granting SDDCO attorneys' fees and prejudgment interest. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

First Capital argues on appeal that the District Court's opinion and order failed to address First Capital's argument that a member of the arbitration panel had not been properly selected pursuant to the arbitration agreement, requiring vacatur of the award. The District Court stated specifically that it had “considered all of the arguments raised by the parties” and that as to any arguments “not specifically addressed, the arguments are either moot or without merit.” App'x 72. Furthermore, as noted by First Capital, the District Court's opinion adopted SDDCO's contention that First Capital waived its objection to the arbitrator in question by failing to seek disqualification before the arbitration began. See Appellant's Br. at 4; App'x 9-10. Because the District Court addressed the issue of waiver in SDDCO's favor, the question of whether the panel was improperly formed was thereby mooted. Accordingly, based on the record before us, we cannot conclude that the District Court improperly failed to address or consider First Capital's argument, whether unintentionally or otherwise. Our cursory note in Schonfeld v. Hilliard, as cited by both parties, does not require a different result. See 218 F.3d 164, 184 (2d Cir. 2000).

Indeed, we question whether this issue is properly raised on appeal—if First Capital genuinely believed that the District Court overlooked one of its arguments, it did not attempt to bring the matter to the District Court's attention through a motion for reconsideration. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (noting that a party may prevail on a motion for reconsideration if it is able to “point to controlling decisions or data that the court overlooked ․ that might reasonably be expected to alter the conclusion reached by the court”).

CONCLUSION

We have reviewed all of the arguments raised by First Capital on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the February 13, 2019 order of the District Court.