ORLANDO DIVISION MARK JEFFERY GRANT, …

1 UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDAORLANDO DIVISIONMARK JEFFERY GRANT, Plaintiff,v. CASE NO. 6:13-cv-168-Orl-TBSDENISE JARDIN ROTOLANTE,Defendant. ORDERThe parties have consented to trial by the United States Magistrate Judge andthe District Judge has referred this case to the Magistrate for all proceedings includingtrial. (Doc. 38). Now, the case comes before the Court without oral argument on thefollowing pleadings and Complaint and Motion to Vacate Arbitration Award filed by PlaintiffMark JEFFERY Grant (Doc. 1); Motion to Dismiss for Lack of Subject Matter Jurisdiction andIncorporated Memorandum of Law filed by Defendant denise JardinRotolante (Doc.)

2 11); Memorandum in Opposition to Arbitration Claimant Ms. Rotolante sMotion to Dismiss (Doc. 21-2); Notice of Motion and Motion to Vacate Arbitration Award for Lack ofArbitrability filed by Plaintiff Mark JEFFERY Grant (Doc. 21-1); Memorandum in Support of Plaintiff s Motion to Vacate ArbitrationAward for Lack of Arbitrability filed by Plaintiff Mark JEFFERY Grant ( ); Response in Opposition to Plaintiff s Motion to Vacate ArbitrationAward for Lack of Arbitrability filed by Defendant denise Jardin Rotolante(Doc. 33); Petition to Confirm Arbitration Award and For Entry of Judgment filedby Defendant denise Jardin Rotolante (Doc.

3 10); Answer and Counterclaim to Defendant denise Jardin Rotolante sPetition to Confirm Arbitration Award filed by Plaintiff Mark JEFFERY Grant(Doc. 9); Answer to Counterclaim and Affirmative Defenses filed by DefendantDenise Jardin Rotolante (Doc. 20); Motion to Remand for Lack of Subject Matter Jurisdiction andIncorporated Memorandum of Law filed by Defendant denise JardinRotolante (Doc. 16). Mark jeffrey Grant is a managing director, head of the StructuredFinance Department, and head of the Corporate Syndicate Department of SouthwestSecurities, Inc. ( SWS ). (Doc. 21-2 at 11). He is also a Financial Industry RegulatoryAuthority ( FINRA ) registered representative per Securities and Exchange Commission( SEC ) Rule 17 (Id.

4 At 18). Plaintiff and Defendant denise JardinRotolante are residents of Brevard County, Florida, neighbors, and former friends. (Doc. 1 1; Doc. 16-1 2-3; Doc. 9 2-3.) In June 2011, Defendant commenced aFINRA arbitration against Plaintiff and other respondents. (Doc. 16-1). On November27, 2012, the arbitration panel entered an award for Defendant and against Plaintiff inthe amount of $49,000, together with pre and post judgment interest, attorney s fees asprovided in FLA. STAT. , and Defendant s $375 non-refundable share of theFINRA filing fee. (Id. at 11). On December 28, 2012, Defendant petitioned (the Petition ) the Circuit Court ofthe Eighteenth Judicial Circuit in and for Brevard County, Florida to confirm thearbitration award and enter judgment for Defendant (the State Court Action ).

5 ( ). On January 15, 2013, Plaintiff filed a complaint in the Middle District of Florida,Tampa DIVISION seeking to vacate the arbitration award pursuant to 10(a)(4) of theFederal Arbitration Act (the Federal Court Action ). (Doc. 1). Plaintiff alleges in theFederal Court Action that the arbitration award should be vacated because: (1) thearbitration panel did not have jurisdiction over him and therefore exceeded its power inissuing the arbitration award in violation of 9 10(a)(4) (Count I); (2) the1arbitration award violates .. [Plaintiff s] right to free speech under the FirstAmendment of the United States Constitution (Count II); and (3) the arbitration award isarbitrary and capricious, in manifest disregard of the law, and in excess of thearbitration panel s powers because the panel disregarded the law that it lackedjurisdiction over Plaintiff, and disregarded other provisions of federal and state law (Count III).

6 (Doc. 1 at 2, 8-13). Plaintiff removed the State Court Action to the Middle2 District of Florida on January 24, 2013 on the grounds of federal question jurisdiction,and the Federal Court Action was transferred to the ORLANDO DIVISION on January 29, Plaintiff objected to the arbitration panel s jurisdiction over him because: (a)1neither he nor his employer SWS had an Arbitration Agreement with .. [Defendant]; (b).. [Defendant] never opened any account with [Plaintiff] or SWS, and .. [Defendant] hadnever paid [Plaintiff] anything .. for financial advice or for the purchase or sale of anysecurity; and (c) [Defendant] did not purchase or sell any security from or through[Plaintiff] or his employer SWS.

7 (Doc. 1 at 4, 8, 10). Plaintiff alleges that the arbitration panel disregarded Florida case law which holds2that one cannot be held liable for making negligent statements which resulted in nothingmore than economic harm. (Doc. 1 at 12). He also alleges that the panel disregardedFlorida case law which holds that individuals do not have a duty of care to third personswith respect to investment advice unless there is a customer relationship andcompensation was paid. (Id.). Lastly, Plaintiff alleges the arbitration panel disregardedFlorida case law which holds that the Florida Securities Act, under which Plaintiff wasdirected to pay attorneys fees, does not apply without proof that compensation was paidfor rendering investment advice for the purchase or sale of a security.

8 (Id. at 12-13).-3-2013. (Docs. 3, 4). After removing the State Court Action, Plaintiff filed his answer and counterclaimto Defendant s Petition to confirm the arbitration award. (Doc. 9). Plaintiff scounterclaim seeks an order vacating the award on the grounds that Plaintiff was notsubject to the arbitration panel s jurisdiction because Defendant was never his customerand imposing liability for his opinions violates his right to free speech under the FirstAmendment. (Id. at 4-7). Defendant answered Plaintiff s counterclaim and filed amotion to remand the State Court Action. (Docs. 16, 20.) Plaintiff has not filed aresponse in opposition to the motion to remand and the time to do so has passed.

9 See FLA. R. (b) (stating that a party opposing a motion .. shall file withinfourteen (14) days after service of the motion .. a response that includes amemorandum of legal authority in opposition to the request .. ). Defendant also fileda motion to dismiss the Federal Court Action for lack of subject matter jurisdictionpursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. 11). Plaintiff has submitted a letter to the Court requesting permission to file amemorandum in response to Defendant s motion to dismiss the Federal Court Action. (Doc. 21). Attached to the letter are a Notice of Motion and Motion to Vacate ArbitrationAward for Lack of Arbitrability (the Motion ) (Doc.)

10 21-1), and a Memorandum inOpposition to [Defendant s] Motion to Dismiss and in Support of the Motion to VacateArbitration Award for Lack of Arbitrability (the Memorandum ) (Doc. 21-2). Plaintiff hasprovided the Court with the following papers in support of his Motion and Memorandum:(1) the affidavit of Gary Irwin, counsel for Plaintiff (Doc. 26); (2) Plaintiff s motion todismiss filed before the FINRA arbitration panel (Doc. 27 at 2); (3) the arbitration award-4-(Id. at 18); (4) excerpts from the transcript of the hearing before the arbitration panel(Doc. 28); (5) a motion in limine Plaintiff and SWS filed with the arbitration panel ( at 2); (6) a copy of the article What is a Broker-Dealer?