In re Application of Ann Cianflone, Esquire and Hinman, Howard & Kattell, LLP for an Order Quashing a Subpoena issued on November 19, 2014 by Joshua W. Martin, III, Arbitrator in Arbitration No. 16 148 462 13

Filing 3

DECISION AND ORDER denying Petitioners' 1 Motion for TRO and to Quash an Arbitration Subpoena for lack of subject matter jurisdiction. Petitioners' counsel is ordered to serve a copy of this Decision and Order on counsel for Andrea Akel and Christopher J. Feeley, and on Arbitrator Joshua W. Martin, III. Signed by Senior Judge Thomas J. McAvoy on 12/4/14. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
In re: APPLICATION OF ANN CIANFLONE, ESQUIRE
AND HINMAN, HOWARD & KATTELL, LLP FOR
AN ORDER QUASHING A SUBPOENA ISSUED
ON NOVEMBER 19, 2014 BY JOSHUA W. MARTIN, III,
ARBITRATOR IN ARBITRATION NO. 16 148 462 13.

MISC. 3: 14-MC-63

______________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
Ann Cianflone, Esq., and Hinman, Howard & Kattell, LLP, petition the Court for an

Order quashing a subpoena ad testificandum and duces tecum issued by an arbitrator in
an arbitration between Christopher J. Feeley and Andrea Akel. The arbitration concerns
an employment and contractual dispute first litigated in the Delaware Chancery Court,
which referred the matter to arbitration. Ms. Cianflone, an attorney, and Hinman, Howard
& Kattell, LLP, a law firm, are not parties to the arbitration. They seek to quash the
subpoena because, they contend, it is overly-burdensome and seeks privileged
information. They also seek a Temporary Restraining Order preventing enforcement of
the subpoena until this matter can be fully litigated.1

1

The subpoena is returnable on December 10, 2014.

1

II.

DISCUSSION
The threshold issue is whether subject matter jurisdiction exists. See D'Amico Dry

Ltd. v. Primera Maritime (Hellas) Ltd., 756 F.3d 151, 161 (2d Cir. 2014) (“Federal courts
have a duty to inquire into their subject matter jurisdiction sua sponte, even when the
parties do not contest the issue.”). The Court concludes that it does not.
Petitioners contend that federal question jurisdiction exists solely because the
subpoena was issued pursuant to 9 U.S.C. § 7. However,
[b]oth the Supreme Court and the Court of Appeals for this Circuit have held that
Section 7 of the [Federal Arbitration Act (“FAA”)] . . . does not, without more, confer
subject matter jurisdiction on the federal courts. See Hall St. Assocs., L.L.C. v.
Mattel, Inc., 552 U.S. 576, ––––, 128 S. Ct. 1396, 1402, 1 70 L. Ed.2d 254 (2008)
(“As for jurisdiction over controversies touching arbitration, the Act does nothing,
being ‘something of an anomaly in the field of federal-court jurisdiction’ in bestowing
no federal jurisdiction but rather requiring an independent jurisdictional basis.”
(citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.
32, 103 S. Ct. 927, 74 L.Ed.2d 765 (1983)); Stolt–Nielsen SA v. Celanese AG, 430
F.3d 567, 572 (2d Cir. 2005) (same). Indeed, the Court of Appeals has been
explicit that in circumstances such as these, “parties invoking Section 7 must
establish a basis for subject matter jurisdiction independent of the FAA.”
Stolt–Nielsen SA, 430 F.3d at 572.
In re Calyon for an Order Quashing Subpoenas Issued by Francois Pages in Financial
Industry Regulation Arbitration No. 08-01653, 2009 WL 1025995, at * 1 (S.D.N.Y., April
13, 2009).
The subpoena was not issued by this Court or in connection with a matter now or
previously pending in this Court. There exists no 28 U.S.C. § 1331 subject matter
jurisdiction solely by virtue of the fact that the subpoena was issued pursuant to 9 U.S.C. §
7.
Petitioners also argue that there exists diversity of citizenship jurisdiction because

2

the parties in the underlying arbitration “are diverse and the amount in controversy
exceeds $75,000.00.” DiBenedetto Decl., ¶ 6. Even if these facts are true, however, the
controversy before the Court is not the dispute forming the basis of the arbitration. Rather,
the controversy before the Court is whether the arbitration subpoena should be enf orced.
Thus, even assuming, arguendo, that all parties involved in this matter are sufficiently
diverse, there is no allegation or plausible indication that the amount in controversy in this
matter exceeds $75,000.00. Thus, there exists no basis to conclude that 28 U.S.C. §
1332 subject matter jurisdiction exists.
Having found that neither federal question nor diversity of citizenship subject matter
jurisdiction exists, the motion must be denied and the matter dismissed. See Durant,
Nichols, Houston, Hodgson & Cortese–Costa P.C. v. Dupont , 565 F.3d 56, 62 (2d Cir.
2009) (“If subject matter jurisdiction is lacking and no party has called the matter to the
court's attention, the court has the duty to dismiss the action sua sponte.”).
III.

CONCLUSION
For the reasons discussed above, Petitioners’ Motion for a Temporary Restraining

Order and to Quash an Arbitration Subpoena, [dkt. # 1], is DENIED f or lack of subject
matter jurisdiction, and the Petition is DISMISSED.
Petitioners’ counsel is ORDERED to forthwith serve a copy of this DECISION and
ORDER on counsel for Andrea Akel and Christopher J. Feeley, and on Arbitrator Joshua
W. Martin, III.
The Clerk of the Court may mark this file as closed.
IT IS SO ORDERED.

3

Dated: December 4, 2014

4