Scott A. Seldin Plaintiff-Appellant
Theodore M. Seldin; Stanley C. Silverman; Mark Schlossberg Defendants-Appellees Deny Seldin; Traci Seldin Moser Intervenor Plaintiffs Scott A. Seldin Plaintiff-Appellee Deny Seldin; Traci Seldin Moser Intervenor Plaintiffs-Appellants
Theodore M. Seldin; Stanley C. Silverman; Mark Schlossberg Defendants-Appellees
Submitted: November 16, 2017
from United States District Court for the District of
Nebraska - Omaha
BENTON, SHEPHERD, and KELLY, Circuit Judges.
SHEPHERD, Circuit Judge.
2010, feuding members of the Seldin family entered into a
Separation Agreement to divide jointly owned assets. The
Separation Agreement contained an arbitration clause,
requiring the parties to arbitrate any claims involving their
jointly owned property. Rather than arbitrating, Appellant
Scott Seldin ("Scott") filed a
lawsuit for an accounting of a trust that he claims was not
included in the Separation Agreement. The district court
dismissed his claim, finding that the federal courts lacked
subject matter jurisdiction to hear the lawsuit. We disagree.
Seldin ("Millard"), Scott's
father, created the Millard Seldin Children's Master
Trust ("MSCM Trust") in 1992.
Theodore Seldin and Stanley Silverman (together
"Appellees") were designated as
two of the trustees for the MSCM Trust. Scott, along with his
siblings, Derry Seldin and Traci Seldin Moser (together
"Intervenors"), were the
beneficiaries of the trust. The MSCM Trust required an annual
accounting of the trust assets. Scott alleges that Appellees
breached their fiduciary duties as trustees and never
submitted a trust report to Scott or Intervenors. The trust
was dissolved in 2002.
February 2010, Scott and Millard entered into the Separation
Agreement with Appellees in order to split the assets in
which they had joint interests. The Separation Agreement
included an arbitration clause to settle any disputes arising
out of or relating to the Separation Agreement or the
parties' joint ownership properties or entities. In
October 2011, the parties initiated arbitration proceedings.
In February 2012, the parties agreed to mediate, using the
arbitrator as the mediator. The mediation fell apart, and the
arbitration resumed. Following the mediation, Scott began
lodging complaints against the arbitrator/mediator, calling
for his resignation, but the arbitrator/mediator refused.
then filed three separate lawsuits against Appellees in the
Douglas County, Nebraska District Court regarding the
parties' joint interests, and each of the lawsuits was
dismissed. Scott filed his first state court lawsuit in April
2012, alleging claims that were already pending in
arbitration. Among his claims was a cause of action for a
full accounting from 1987 to present. The court dismissed
Scott's claim, finding that he was required to submit to
2012, Scott filed a second state court lawsuit, amending the
complaint on October 10, 2012. In March 2013, the state court
similarly dismissed the second lawsuit, ordering the parties
to resolve their issues through arbitration. In September
2012, Scott filed a demand with the American Arbitration
Association (the "AAA") for the
disqualification of the arbitrator. The AAA reaffirmed the
arbitrator. Scott filed a Motion to Reconsider or Clarify
Ruling, and the AAA denied the motion.
December 2012, Scott filed a third lawsuit asking the state
court to vacate the AAA ruling or to enjoin arbitration,
remove the arbitrator, and reinstate the first lawsuit. In
April 2013, the state court dismissed the third lawsuit.
Scott appealed each of the lawsuits. Pending the appeals, the
arbitrator stepped down, and the designated replacement
arbitrator refused to serve. The parties agreed to select a
new arbitrator through the AAA. Appellees moved to dismiss
the appeals as moot, and on August 28, 2013, the Nebraska
Supreme Court granted their motion.
October 2013, a new arbitrator was appointed, and the
arbitration recommenced. On July 29, 2016, Scott filed a
lawsuit in federal court against Appellees, requesting an
accounting of the MSCM Trust. Intervenors attempted to
intervene, but their motion was denied. Appellees filed a
motion to dismiss for lack of subject matter jurisdiction.
The district court granted Appellees' motion to dismiss,
holding that the court did not have jurisdiction because
there was a binding arbitration agreement which gave the
arbitrator the authority to first decide the extent of his
jurisdiction. Furthermore, the court stated it did not have
jurisdiction because res judicata and issue preclusion
applied. Finally, the court also found that the
Rooker-Feldman doctrine barred the court
from hearing Scott's claim.
April 27, 2017, after all of the briefing was submitted for
this appeal, the arbitrator entered a Final Award, finding
that the Appellees are entitled to recover from Scott a net
amount of $2, 977, 031, plus post-award simple interest from
the date of the award. On May 23, 2017, Appellees filed a Motion
to Confirm Arbitration Award as Judgment in state court.