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Click here for the full text of this decision FACTS: Cole Smith filed suit in the district court seeking to vacate an arbitration award entered in favor of Smith’s former employer, Rush Retail Centers Inc. Although Rush did not object to the district court’s jurisdiction, a magistrate judge determined that there was no basis for federal jurisdiction because the parties were not diverse and the complaint did not allege a federal question. Over Smith’s objections, the district court concurred with the magistrate judge’s determination and dismissed for lack of jurisdiction both Smith’s complaint and Rush’s counterclaim for attorneys’ fees. The court denied Smith’s timely motion to amend the judgment or, alternatively, for rehearing. HOLDING: The court affirms the judgment dismissing the complaint. The U.S. Supreme Court has held that �4 of the Federal Arbitration Act, which authorizes the filing of a petition to compel arbitration in the district court, does not create an independent basis for federal jurisdiction. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983). Section 4 provides: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.” For a federal court to enter an order to compel arbitration under �4, “there must be diversity of citizenship or some other independent basis for federal jurisdiction before the order can issue.”5 Although Moses Cone arose in the context of �4, this conclusion applies with equal force to �10. It is well established that the FAA is not an independent grant of federal jurisdiction. Although this court has not addressed whether this rule applies in the �10 context, other circuits have. The Second, Sixth, Seventh, Ninth, Eleventh, and District of Columbia Circuits have held that �10 of the FAA does not confer federal jurisdiction and that there must be an independent basis for federal jurisdiction before a district court may entertain a petition to vacate an arbitration award. The Second Circuit reasoned that it would be anomalous to conclude that �4 confers no jurisdiction to compel arbitration, but that �10 confers jurisdiction to vacate an award once arbitration takes place. If �10 conferred jurisdiction, “then any contract that involved commerce and contained a valid arbitration clause could give rise to a federal court action for the confirmation, vacatur, or modification of an arbitration award.” Baltin v. Alaron Trading Corp., 128 F.3d 1466 (11th Cir. 1997). This reasoning is consistent with the limited nature of federal subject matter jurisdiction. The court joins these circuits in holding that FAA �10 does not create federal subject matter jurisdiction. The court rejects Smith’s argument that Circuit City Stores Inc. v. Adams, 532 U.S. 105 (2001), dictates that the arbitration of employment contracts always involves a federal question. Federal jurisdiction was not at issue in Circuit City. Jurisdiction was based on diversity. At issue was whether FAA �1, which exempts from coverage under the FAA “”contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce,’” 9 U.S.C. �1, removes all employment contracts from the scope of the FAA or whether it merely provides that the FAA does not apply to employment contracts involving transportation workers. The U.S. Supreme Court’s application of the exemption employment contracts involving the transportation industry from FAA coverage is irrelevant to the existence of federal subject matter jurisdiction under the FAA. The court concludes that the complaint did not allege a federal question or that under the facts alleged there is another basis for federal jurisdiction. OPINION: Per curiam; Higginbotham, Davis and Prado, JJ.

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