Dunbar v. Airbnb, Inc.

Filing 26

ORDER GRANTING DEFENDANT AIRBNB, INC.'S MOTION TO DISMISS, ECF NO. 15, WITH LEAVE TO AMEND re 15 - Signed by JUDGE J. MICHAEL SEABRIGHT on 11/17/2022. For the foregoing reasons, Defendant Airbnb, Inc.'s Motion to Dismiss, ECF No. 15, is GRANTED. The dismissal, however, is with leave to amend. Plaintiff John P. Dunbar is given until December 8, 2022, to file an Amended Petition that states a valid basis for federal subject-matter jurisdiction. If the Pe tition is not amended by December 8, 2022, the court will instruct the Clerk of Court to dismiss the action without prejudice and close the case file.COURT'S CERTIFICATE OF SERVICE - Non-Registered CM /ECF Participants shall be served by First Class Mail to the addresses of record listed on the (NEF). Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF).(jni)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOHN P. DUNBAR,

Civ. No. 21-00451 JMS-WRP

Plaintiff,

ORDER GRANTING DEFENDANT
AIRBNB, INC.’S MOTION TO
DISMISS, ECF NO. 15, WITH
LEAVE TO AMEND

vs.
AIRBNB, INC.,
Defendant.

ORDER GRANTING DEFENDANT AIRBNB, INC.’S MOTION TO
DISMISS, ECF NO. 15, WITH LEAVE TO AMEND
I. INTRODUCTION
On October 6, 2021, an arbitrator dismissed pro se Plaintiff John P.
Dunbar’s (“Plaintiff” or “Dunbar”) arbitration claim seeking damages for alleged
defamation against Defendant Airbnb, Inc. (“Defendant” or “Airbnb”). See ECF
No. 15-10. Dunbar then filed a petition in this court, titled “Motion for De Novo
Judicial Review of Arbitrator’s Ruling and Petition to Vacate Award” (the
“Petition”). ECF No. 1. After much delay caused by issues with proper service of
the Petition, Defendant filed the instant Motion to Dismiss, seeking to dismiss the
Petition for lack of subject-matter jurisdiction. ECF No. 15. Based on the
following, the court GRANTS the Motion to Dismiss, but does so without
prejudice and with leave to amend.

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II. SUMMARY
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., among
other things, authorizes courts to compel arbitration under 9 U.S.C. § 4, as well as
to confirm, vacate, or modify arbitral awards under 9 U.S.C. §§ 9−11. Chapter 1
of the FAA, however, does not itself create federal jurisdiction. Rather, for such
actions to proceed in federal court, there must be “an independent jurisdictional
basis,” Vaden v. Discover Bank, 556 U.S. 49, 59 (2009), such as a federal question
under 28 U.S.C. § 1331 or complete diversity of citizenship under 28 U.S.C.
§ 1332. Vaden held that, under 9 U.S.C. § 4, courts may “look through” to the
substance of the underlying controversy between the parties to find the necessary
federal jurisdiction over an action seeking to compel arbitration. See 556 U.S. at
62.
On March 31, 2022, the Supreme Court issued Badgerow v. Walters,
142 S. Ct. 1310 (2022), which drew a distinction between petitions seeking to
compel arbitration from those seeking to confirm or vacate an arbitration award
under 9 U.S.C. §§ 9 or 10 (or, for that matter, any other provision of chapter 1 of
the FAA besides 9 U.S.C. § 4). Badgerow held that, in determining whether
federal subject-matter jurisdiction exists over a petition to confirm or vacate an
arbitral award—unlike a petition to compel arbitration—a court may not “look
through” to the underlying controversy to find federal jurisdiction. See Badgerow,
2

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142 S. Ct. at 1314. Rather, under the language of the relevant provisions of the
FAA, “a court may look only to the application actually submitted to it in assessing
its jurisdiction.” Id. That is, a federal court has subject-matter jurisdiction only if
the “face of the application [to confirm or vacate] itself . . . shows that the
contending parties are citizens of different States (with over $75,000 in dispute)
. . . [o]r if it alleges that federal law (beyond Section 9 or 10 itself) entitles the
applicant to relief.” Id. at 1316. Badgerow reasoned that—unlike other provisions
of chapter 1 of the FAA—9 U.S.C. § 4 specifically directs courts to look at “the
controversy between the parties,” in determining whether to compel parties to
arbitrate.1 142 S. Ct. at 1317.
The posture of this case between Dunbar and Airbnb presents an issue
that arises from and is ultimately controlled by Badgerow. As will be explained,
even though the court previously had jurisdiction to compel the parties to arbitrate
Dunbar’s claim for defamation against Airbnb (or at least to have an arbitrator

1

The first sentence of § 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.

9 U.S.C. § 4 (emphasis added). Sections 9 or 10 do not include similar language.
3

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decide in the first instance whether the claim was arbitrable), the court does not
have jurisdiction over Dunbar’s present Petition seeking “de novo judicial review”
and vacatur of the Arbitrator’s decision (at least as the Petition is currently
written). The court would have to—in violation of Badgerow—“look through” the
current Petition to the underlying controversy before Dunbar could satisfy the
requirements of federal jurisdiction under 28 U.S.C. § 1332. 2 As the Petition is
currently written, the court cannot tell based on the “face” of the Petition whether
the citizenship of the parties is diverse, nor whether the amount-in-controversy
exceeds $75,000.
Nevertheless, it may be that Dunbar could amend the Petition so that
it states a basis for federal diversity jurisdiction on its face. The court will thus
give him an opportunity to amend the Petition to state a basis for federal
jurisdiction. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000)
(explaining that leave to amend should be granted if it appears at all possible that a
pro se plaintiff can correct the defect in the pleading).
III. BACKGROUND
To understand the posture of this case, the court first sets forth the
relevant details of the long procedural history of the dispute. Because they are not
2

It is undisputed that subject-matter jurisdiction here could not be based on a federal
question under 28 U.S.C. § 1331—for example, an alleged violation of a federal statute that
provides a cause-of-action.
4

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critical to deciding the present Motion, the substantive allegations regarding
Dunbar’s claim of defamation are not discussed in detail and are mentioned only to
provide context.
A.

The First Arbitration
On July 20, 2018, Dunbar—who offered accommodations to third-

parties (“guests”) as a “host” via Airbnb’s online platform, which facilitates rentals
between “hosts” and “guests”—filed an arbitration demand against Airbnb with the
American Arbitration Association (“AAA”). ECF No. 15-3. The demand
described the issues in dispute as “breach of contract, violations of due process,
misrepresentation,” and sought $100,000, along with fees, interest, and costs. Id.
About a year later, on July 26, 2019, an arbitrator ruled in favor of Airbnb “as to
all claims regarding and arising out of [Dunbar’s] Airbnb, Inc.’s contract and
account.” ECF No. 15-5 at 7, PageID.103.3

3

The arbitrator described the facts leading to the claim as follows:
In September of 2014, guests who stayed on Claimant’s
[(Dunbar’s)] Property filed a police report, complaining that
Claimant displayed threatening behavior. They also cited to
publicly-available reports of prior arrests of Claimant, as well as a
charge of disorderly conduct against Claimant. Furthermore, in
August of 2017, other guests who stayed on Claimant’s Property
called Respondent’s [(Airbnb’s)] customer service line to complain
of a possible domestic issue and, in general, feeling unsafe. The
2017 guests further alleged that subsequent to posting an online
review, Claimant aggressively confronted them about their
complaints through a messaging application.
(continued . . . )
5

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B.

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The First Federal Action
On December 5, 2019, Dunbar filed a pro se federal complaint in this

court seeking damages against Airbnb for defamation “arising from [Airbnb’s]
deliberately false and malicious accusations that [Dunbar] perpetrated the crime of
‘domestic violence’ on December 8, 2017.” ECF No. 15-7 at 1, PageID.109. See
Dunbar v. Airbnb, Inc., Civ. No. 19-00648 JMS-WRP (D. Haw. Dec. 5, 2019)
(“Dunbar I”). In that suit, Dunbar alleged jurisdiction based on diversity of
citizenship, claiming that he was a citizen of Hawaii and Airbnb was a citizen of
California. Id. at 2, PageID.110. Dunbar also alleged an amount in controversy
exceeding $75,000. Id.
Airbnb responded in Dunbar I by filing a Motion to Compel
Arbitration, which this court granted on April 1, 2020. See ECF No. 15-8 (also
available at Dunbar v. Airbnb, Inc., 2020 WL 1550236 (D. Haw. Apr. 1, 2020)).
This court determined that an arbitration clause in Airbnb’s contract with
Dunbar—and specifically, a clause delegating to an arbitrator the threshold
question of whether a dispute was arbitrable—was enforceable and not

Following the aforesaid alleged complaints, Respondent
terminated Claimant’s account, thereby cancelling all of
Claimant’s future bookings. Thereafter, Claimant filed an
Arbitration Demand.
ECF No. 15-5 at 1, PageID.97.
6

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unconscionable, and thus the court compelled the parties to arbitrate the suit (or at
least the threshold question of arbitrability). See 2020 WL 1550236, at *6.4 The
court dismissed the action (rather than staying it under 9 U.S.C. § 3) because no
other parties or claims remained. See id. at *7 (citing Johnmohammadi v.
Bloomingdale’s, Inc., 755 F.3d 1072, 1073–74 (9th Cir. 2014) (“[N]otwithstanding
the language of § 3, a district court may either stay the action or dismiss it outright
when . . . the court determines that all of the claims raised in the action are subject
to arbitration.”)).5 In so doing, this court stated that “[i]f Plaintiff subsequently refiles an action based on this same arbitration claim, the court will waive the filing
fee and the matter will be assigned to the undersigned.” Id. (footnote omitted).
This court noted that an example of a re-filed action would be “if the arbitrator

4

The court cites to the Westlaw version of the April 1, 2020 Order for convenience
because the page identification numbers in ECF No. 15-8 are not legible on the electronic copy
of the Order filed in this case (Civ. No. 21-00451 JMS-WRP).
5

Section 3 provides:
If any suit or proceeding be brought in any of the courts of the
United States upon any issue referable to arbitration under an
agreement in writing for such arbitration, the court in which such
suit is pending, upon being satisfied that the issue involved in such
suit or proceeding is referable to arbitration under such an
agreement, shall on application of one of the parties stay the trial
of the action until such arbitration has been had in accordance with
the terms of the agreement, providing the applicant for the stay is
not in default in proceeding with such arbitration.

9 U.S.C. § 3.
7

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rules the defamation claim is not arbitrable, or if [Dunbar] seeks to confirm or to
vacate an arbitration award regarding the defamation claim.” Id. at *7 n.11.
C.

The Second Arbitration
Following this court’s Order compelling arbitration, on November 16,

2020, Dunbar filed a second pro se demand for arbitration against Airbnb with the
AAA. See ECF No. 15-9. Dunbar claimed that he “suffered damages caused by
Respondent Airbnb, Inc. as a result of Respondent’s publication of false
allegation[s] that Claimant perpetrated the crime of ‘domestic violence’ as an
Airbnb Host. Respondent knowingly and intentionally published per se
defamatory material about Claimant via multiple internet communications.” Id. at
1, PageID.136. Dunbar sought $1,000,000.00 in damages, along with fees,
interest, and costs. Id.
In that arbitration, Airbnb filed a motion for summary judgment,
which an arbitrator granted by order issued on October 6, 2021. See ECF No. 1510. The arbitrator concluded that Dunbar’s defamation claim was “barred as a
matter of law by the Doctrine of Res Judicata.” Id. at 2, PageID.139. The
arbitrator reasoned that the first arbitration—wherein the first arbitrator found in
favor of Airbnb “as to all claims regarding and arising out of [Dunbar’s] Airbnb,

8

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Inc.’s contract and account”—involved the same parties and same contract. Id. 6
The second arbitrator also “conclude[d] that there was insufficient evidence to
support the defamation claim to warrant an evidentiary hearing.” Id. And because
the second arbitrator ruled on the merits of Dunbar’s claims, he necessarily must
have found that the claims fell within the scope of Airbnb’s arbitration clause.
D.

The “Motion for De Novo Judicial Review of Arbitrator’s Ruling”
On November 16, 2021, Dunbar, again appearing pro se, filed the

Petition (i.e., his “Motion for De Novo Judicial Review of Arbitrator’s Ruling and
Petition to Vacate Award”). ECF No. 1. However, he filed the Petition as a
motion in the closed case, Dunbar I, arguing that this court had retained
jurisdiction over the matter. Id. at 1, PageID.1. Although this court did not retain
jurisdiction, the court recognized that its previous order in Dunbar I had specified
that the court would waive the filing fee and direct-assign an action based on this

6

The finding of res judicata appears to be consistent with Hawaii law, even assuming that
Dunbar’s defamation claim (brought in the second arbitration) was not actually litigated in the
first arbitration. See Foytik v. Chandler, 88 Haw. 307, 314, 966 P.2d 619, 626 (1998) (reiterating
that, under Hawaii law, claim preclusion “precludes the relitigation, not only of the issues which
were actually litigated in the first action, but also of all grounds of claim and defense which
might have been properly litigated in the first action but were not litigated or decided” (quoting
Morneau v. Stark Enters., Ltd., 56 Haw. 420, 422–23, 539 P.2d 472, 474–75 (1975))); see also,
e.g., Mather v. First Hawaiian Bank, 2014 WL 4199335, at *5 (D. Haw. Aug. 22, 2014) (“Under
Hawaii law, the doctrine of res judicata applies when: 1) the claim asserted in the action in
question was or could have been asserted in the prior action, 2) the parties in the present action
are identical to, or in privity with, the parties in the prior action, and 3) a final judgment on the
merits was rendered in the prior action.”) (quoting Pedrina v. Chun, 97 F.3d 1296, 1301 (9th Cir.
1996)).
9

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same arbitration claim. See Dunbar I, 2020 WL 1550236 at *7. And so, the court
instructed the Clerk of Court to file the Petition as the operative complaint with a
new civil number, to assign it to the undersigned, and to waive the filing fee. See
ECF No. 17 in Dunbar I, Civ. No. 19-00648 JMS-WRP (D. Haw.). Accordingly,
the Clerk opened this case (Civ. No. 21-00451 JMS-WRP).
E.

This Action
As a new action, the court required the Petition to be properly served

on Defendant. When that did not occur, the assigned magistrate judge
recommended that the action be dismissed without prejudice for failure to
complete service in a timely manner. ECF No. 10. This court, however, gave
Dunbar a final opportunity to serve the Petition properly, and ordered service be
completed by June 10, 2022. See ECF No. 12; Fed. R. Civ. P. 4(m). On June 1,
2022, Dunbar provided evidence that service had been completed as of June 1,
2022, and the court vacated the recommendation to dismiss the action as it
appeared that Dunbar had complied with Rule 4. See ECF Nos. 13, 14. The
Petition essentially then became active on June 1, 2022, and so, on June 21, 2022,
Airbnb filed the instant Motion to Dismiss. ECF No. 15. Dunbar filed his
Opposition on September 15, 2022, 7 ECF No. 23, and Airbnb filed a Reply on
7

The Opposition was filed late, even after the court twice extended the deadline (after
issuing an Order to Show Cause to explain why Dunbar failed to file a timely opposition). See
(continued . . . )
10

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September 23, 2022, ECF No. 25. The court decides the Motion to Dismiss
without a hearing under Local Rule 7.1(c).
IV. DISCUSSION
To reiterate, Chapter 1 of the FAA does not itself create federal
jurisdiction—there must be an “independent jurisdictional basis” before a federal
court may act under Chapter 1 of the FAA. Hall St. Assocs., L.L.C. v. Mattel, Inc.,
552 U.S. 576, 582 (2008).8 When this court compelled arbitration on April 1,
2020, it had before it a complaint by Dunbar alleging defamation against Airbnb,
with subject-matter jurisdiction based on complete diversity of citizenship. The
court also had authority to “look through” to that substantive dispute to determine
whether it could compel Dunbar to arbitrate under 9 U.S.C. § 4. See Vaden, 556
U.S. at 62−64. Although the court contemplated that Dunbar might subsequently
seek to confirm or vacate a subsequent arbitration award, the court did not stay the
action pending the arbitration. The court simply stated that if he filed such an
action, it would be assigned to this judge without the need for a filing fee. Even if
it could have, the court did not “retain” jurisdiction. The court dismissed the
action.
ECF Nos. 19, 21. The court excused the late filing, extended the Reply deadline, and vacated the
planned October 3, 2022 hearing. See ECF No. 24.
8

In contrast, the FAA provides federal subject-matter jurisdiction for proceedings under
Chapter 2 of the FAA, 9 U.S.C. §§ 201−08. See 9 U.S.C. § 203.
11

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Although the court might have thought (on April 1, 2020) that it
would automatically have diversity jurisdiction to confirm or vacate an award from
the arbitration that it had just compelled, the Supreme Court changed that
presumption on March 31, 2022 when it held on March 31, 2022 in Badgerow that
courts may not “look through” a petition to confirm or vacate to the substantive
controversy when assessing jurisdiction over such a petition. See 142 S. Ct. at
1314. The Supreme Court summarized its holding as follows:
In [Vaden], we assessed whether there was a
jurisdictional basis to decide a Section 4 petition to
compel arbitration by means of examining the parties’
underlying dispute. The text of Section 4, we reasoned,
instructs a federal court to “look through” the petition to
the “underlying substantive controversy” between the
parties—even though that controversy is not before the
court. If the underlying dispute falls within the court’s
jurisdiction—for example, by presenting a federal
question—then the court may rule on the petition to
compel. That is so regardless whether the petition alone
could establish the court’s jurisdiction.
The question presented here is whether that same
“look-through” approach to jurisdiction applies to
requests to confirm or vacate arbitral awards under the
FAA’s Sections 9 and 10. We hold it does not. Those
sections lack Section 4’s distinctive language directing a
look-through, on which Vaden rested. Without that
statutory instruction, a court may look only to the
application actually submitted to it in assessing its
jurisdiction.
Badgerow, 142 S. Ct. at 1314 (internal citation omitted) (emphasis added). That is,
to determine whether there is an independent basis of jurisdiction for an action
12

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under §§ 9 or 10, a court looks to “the face of the application itself.” Id. at 1316;
see also id. at 1320 (describing the test as “ground[ing] jurisdiction on the face of
the FAA application itself”).
Badgerow dealt specifically with whether a court could look to an
underlying arbitration that involved federal employment law to find federal
question jurisdiction under 28 U.S.C. § 1331. See 142 S. Ct. at 1317. Badgerow,
however, also contemplated that the same principles apply to assessing diversity
jurisdiction under § 1332. See id. at 1316 (“If [the face of the FAA application
itself] shows that the contending parties are citizens of different States (with over
$75,000 in dispute), then § 1332(a) gives the court diversity jurisdiction.”); id. at
1321 (discussing the pros and cons of applying a “no look through” approach to
diversity jurisdiction issues). And post-Badgerow, district courts have applied its
holding when assessing diversity jurisdiction. See Reineri v. Int’l Business
Machines Corp., 2022 WL 2316622, at *3 (S.D.N.Y. June 28, 2022) (“[A court]
cannot ‘look through’ the petition to the ‘underlying substantive controversy’
between the parties to establish either federal question or diversity jurisdiction”
(quoting Badgerow) (some quotation marks omitted))); Wynston Hill Capital, LLC
v. Crane, 2022 WL 4286608, at *3 (S.D.N.Y. Sept. 16, 2022) (same).
Applying Badgerow here, the court cannot establish subject-matter
jurisdiction based on the face of “the [FAA] application actually submitted [by
13

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Dunbar],” 142 S. Ct. 1314, without looking through to the underlying substantive
controversy between Dunbar and Airbnb. Nothing on “the face of the application
itself,” Badgerow, 142 S. Ct. at 1316, sets forth the citizenship of the parties or
alleges a prima facie amount in controversy exceeding $75,000. Rather—although
the court can infer from the prior complaint in Dunbar I that the parties are
diverse, and from the underlying arbitration demands that Dunbar had alleged
amounts in controversy of $100,000 or $1,000,000.00—the court must look
through Dunbar’s Petition to make such determinations, something not permitted
by Badgerow. 9
As it is, Dunbar argues, among other things, that: (1) the court
retained jurisdiction to hear his motion to vacate, ECF No. 1 at 1, PageID.1; (2) the
arbitrator did not “draw its essence from the [arbitration] agreement,” id. at 3,
PageID.3; (3) the arbitrator failed to decide the threshold question of arbitrability,
id. at 3−4, PageID.3–4; (4) the arbitrator’s decision is subject to vacatur under
9

Airbnb argues that the amount in controversy is zero because Dunbar is seeking to
vacate an award that dismissed his arbitration demand and is not seeking to reopen the arbitration
(seeking, instead, “de novo judicial review”). See ECF No. 15-1 at 9, PageID.71; ECF No. 25 at
9, PageID.168. In this regard, Airbnb attempts to distinguish Theis Research, Inc. v. Brown &
Bain, 400 F.3d 659 (9th Cir. 2005), in which the Ninth Circuit found the necessary amount in
controversy not in the petition itself but by looking at the amount petitioner “sought to recover
by its complaint.” Id. at 664. It may be that this aspect of Theis Research is no longer good law
after Badgerow. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (explaining
that “the relevant court of last resort must have undercut the theory or reasoning underlying the
prior circuit precedent in such a way that the cases are clearly irreconcilable”). The court,
however, need not reach that question here because the amount in controversy is not clear from
Dunbar’s Petition, and the court is granting Dunbar leave to amend.
14

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other standards in 9 U.S.C. § 9, id. at 5−13, PageID.5−13; and (5) the arbitrator
erred in applying the res judicata doctrine, id. at 14, PageID.14. The Petition seeks
“to proceed to a trial by jury in this Honorable Court.” Id. at 21, PageID.21. 10
Nowhere, however, does the Petition discuss jurisdiction, whether under diversity
of citizenship or otherwise. Under Badgerow, this court lacks subject-matter
jurisdiction over the Petition.
This pleading deficiency is not surprising, given that Dunbar
(proceeding pro se) filed the Petition as a motion directly in the closed Dunbar I
docket. As he argued, he thought that the court had “retained” jurisdiction to
address confirmation or vacatur—a reasonable assumption given that the court had
indicated it would waive the filing fee for a subsequent proceeding seeking to
confirm or vacate an award. Moreover, Badgerow had not been decided when
Dunbar filed his Petition.

10

It is unclear whether Dunbar seeks a trial by jury to review the arbitration award, a trial
by jury of the substantive dispute—something inconsistent with the court’s prior order
compelling arbitration of the dispute—or a de novo review by this court in deciding whether to
vacate. In any event, however, the court is limited to reviewing the arbitration award under
standards set forth in 9 U.S.C. § 10(a)—an “extremely limited review.” Kyocera Corp. v.
Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 998 (9th Cir. 2003); see also, e.g., Biller v.
Toyota Motor Corp., 668 F.3d 655, 664 (9th Cir. 2012) (Ҥ 10 of the FAA provides the exclusive
means by which a court reviewing an arbitration award under the FAA may grant vacatur of a
final arbitration award. . .”). And § 10 does not provide for a jury to decide whether an
arbitration award must be vacated. Cf. Prescott v. Northlake Christian Sch., 141 F. App’x 263,
268−69 (5th Cir. 2005) (“As for the FAA, its § 4 allows for a jury trial only to resolve fact issues
surrounding “the making of an arbitration agreement”).
15

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Accordingly, the court will grant Dunbar leave to amend his Petition
to allege a good faith prima facie basis for subject-matter jurisdiction. See, e.g.,
Lopez, 203 F.3d at 1130–31 (explaining that leave to amend should be granted if it
appears at all possible that a pro se plaintiff can correct the defect in the pleading);
Smallwood v. NCsoft Corp., 730 F. Supp. 2d 1213, 1220 (D. Haw. 2010) (“When a
court dismisses a claim for failure to properly allege diversity jurisdiction, leave to
amend should be granted unless doing so would be futile.”); Reineri, 2022 WL
2316622, at *4 (granting leave to amend petition seeking to confirm arbitration
award, after dismissing the petition based on Badgerow).
Therefore, by December 8, 2022, Dunbar may file an Amended
“Motion for De Novo Judicial Review of Arbitrator’s Ruling and Petition to
Vacate Award” to state a valid basis for federal subject-matter jurisdiction. If
Dunbar does not file an Amended Petition by that date, the court will instruct the
Clerk of Court to dismiss this action without prejudice. See Barke v. Banks, 25
F.4th 714, 721 (9th Cir. 2022) (“[D]ismissals for lack of Article III jurisdiction
must be entered without prejudice because a court that lacks jurisdiction ‘is
powerless to reach the merits.’” (quoting Fleck & Assocs., Inc. v. Phoenix, City of,
an Ariz. Mun. Corp., 471 F.3d 1100, 1106–07 (9th Cir. 2006))).11
11

Badgerow explained that, in lieu of federal actions, “state courts [have] a significant
role in implementing the FAA.” 142 S. Ct. at 1322. In lieu of an Amended Petition, Dunbar
(continued . . . )
16

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V. CONCLUSION
For the foregoing reasons, Defendant Airbnb, Inc.’s Motion to
Dismiss, ECF No. 15, is GRANTED. The dismissal, however, is with leave to
amend. Plaintiff John P. Dunbar is given until December 8, 2022, to file an
Amended Petition that states a valid basis for federal subject-matter jurisdiction. If
the Petition is not amended by December 8, 2022, the court will instruct the Clerk
of Court to dismiss the action without prejudice and close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 17, 2022.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Dunbar v. Airbnb, Inc., Civ. No. 21-00451 JMS-WRP, Order Granting Defendant Airbnb, Inc.’s
Motion to Dismiss, ECF No. 15, with Leave to Amend

might choose to file a petition in a state court under Hawaii law (although this court cannot say
whether such a petition would be barred as untimely under Hawaii Revised Statutes § 658A23(b)).
17