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March 9, 1992

ROBERT CORT, Plaintiff,

The opinion of the court was delivered by: BARBARA A. CAULFIELD


 Plaintiff Robert Cort sues the American Arbitration Association (AAA) for damages arising out of AAA's handling of his case arbitration. AAA moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). For reasons discussed fully below, defendant's motion is GRANTED.


 For purposes of this motion, the allegations contained in plaintiff's complaint are accepted as true. Plaintiff's complaint asserts causes of action for spoilation of evidence, breach of contract, and negligence. In Dec. 1987 plaintiff and his wife entered into a contract with Angotti & Reilly, Inc. The contract entered into required that all disputes between the parties arising out of or relating to the contract were to be arbitrated pursuant to the Construction Industry Arbitration Rules of the AAA.

 In April, 1990, Angotti & Reilly filed a demand for arbitration. The arbitration hearings were conducted between April 16 and Dec., 1990. Plaintiff subsequently appealed the arbitration award in San Francisco Superior Court. After receiving an unfavorable judgment in that court, plaintiff appealed the matter to the California Court of Appeals. During the course of the appeal, plaintiff demanded that defendant AAA return to him exhibits filed in connection with the arbitration. In this action, plaintiff contends that defendant refused to turn over the exhibits. Plaintiff also contends that the basis for defendant's refusal was the fact that the original documents produced at the arbitration had been lost or altered by the arbitrators. Said refusal forced plaintiff to settle his appeal. As a result of being forced to settle, plaintiff allegedly incurred substantial damages in the form of debts, expenses and other monetary, emotional and physical damages.


 Ninth Circuit and California courts have generally recognized that the doctrine of judicial immunity is applicable to the arbitration process. *fn1" The arbitral immunity is not limited to the individual arbitrators. It has been uniformly accepted that such immunity extends to arbitration associations such as the AAA as well. Corey v. N.Y.S.E., 691 F.2d 1205, 1211 (6th Cir. 1982). *fn2"

 It has been recognized that the threat of civil liability can have a chilling effect on governmental officials in the proper performance of their duties. Forrester v. White, 484 U.S. 219, 223, 108 S. Ct. 538, 542, 98 L. Ed. 2d 555 , (1988). Accordingly, various forms of official immunity have been recognized to insure the independence necessary to protect the decision maker from bias or intimidation arising out of the exercise of judicial functions. Butz v. Economou, 438 U.S. 478, 508-511, 98 S. Ct. 2894, 2911-13, 57 L. Ed. 2d 895 (1978).

 The same independence is deemed necessary with respect to arbitrators. The parties choose to submit to the arbitration process. Therefore, "by agreement, the parties invoked the arbitrators' independent judgment and discretion." Corey v. N.Y.S.E., 691 F.2d 1205, 1209 (6th Cir. 1982). In order to encourage independent judgment, the arbitration process is granted immunity because "the functional comparability of the arbitrator's decision making process and judgments to those of judges . . . generates the same need for independent judgment free from the threat of lawsuits. Immunity furthers this need. Id. at 1211. as cited in Austern v. The Chicago Board Options Exchange Inc., 716 F. Supp. 121, 124 (S.D.N.Y. 1989), aff'd 898 F.2d 882 (2nd Cir. 1990).

 Generally, judicial immunity is immunity from suit, which can only be overcome in one of two circumstances; first, where the judge (or arbitrator) is engaged in nonjudicial actions; and second, where the judge's actions are taken in the absence of any jurisdiction. Mireles v. Waco, U.S. , 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 , (1991).

 Plaintiff argues that the arbitral immunity is not available to AAA because the acts complained of; spoilation of evidence, breach of contract, and negligence are all non-judicial acts which fall outside of the scope of the arbitral immunity. However, it is clear from an examination of some of the allegations contained in plaintiff's complaint that his action is an attempt to escape the arbitral immunity bar. *fn3"

 Plaintiff attempts to couch defendant's activities in choosing arbitrators as an administrative decision which does not warrant immunity. Plaintiff's arguments ignores both the rationale behind such immunity, and the distinction between judicial and nonjudicial acts. The Corey court has already rejected such a distinction. In Corey, appellants challenged, among other things, the arbitration board's selection of arbitrators in violation of its own rules, an allegation strikingly similar to that advanced by plaintiff here. In rejecting this argument, the Corey court stated:

 Extension of arbitral immunity to encompass boards which sponsor arbitration is a natural and necessary product of the policies underlying arbitral immunity; otherwise the immunity extended to arbitrators is illusory. It would be of little value to the whole arbitral procedure to merely shift the liability to the sponsoring organization.

 691 F.2d at 1211.

 In Austern v. Chicago Bd. of Options Exchange, Inc., 898 F.2d 882 (2nd Cir. 1990) appellants argued that its cause of action against the arbitration board for improper notice and scheduling of the arbitration proceedings and improper selection of arbitrators did not fall under the doctrine of judicial immunity. Appellants attempted to distinguish judicial or discretionary duties and "ministerial" or administrative activities. In rejecting appellant's arguments, the court held that "semantically categorizing the challenged acts as 'ministerial' or administrative, as opposed to 'discretionary,' in large part misses the mark, since the scope of arbitral immunity is 'defined by the functions it protects and serves'" Id. at 886.

 It is the view of this court that the acts complained of fit precisely in the category of acts which have traditionally enjoyed absolute judicial immunity. Plaintiff complains of defendant AAA's actions in handling his arbitration proceeding. As the Supreme Court noted in Forrester v. White, 484 U.S. at 226, 108 S. Ct. at 544 :

 "when applied to the paradigmatic judicial acts involved in resolving disputes between parties who have invoked the jurisdiction of a court, the doctrine of absolute immunity has not been particularly controversial. Difficulties have arisen primarily in attempting to draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges."

 The acts complained of by plaintiff clearly fall into the category of acts performed during the course of resolving a dispute between the parties.

 The court's holding is also supported by the recognized basis for the arbitral immunity. The arbitral immunity has a two-fold goal; to protect arbitrators from suit, and to ensure that there is a body of individuals willing to perform the service. In passing Section 2 of the Federal Arbitration Act, 9 U.S.C. ยงยง 2,3,4, congress intended to liberalize "federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary." Moses H. Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765 (1983). Therefore, the court reasoned, to impose liability upon the board for claims asserted by appellant would "merely serve to discourage its sponsorship of future arbitrations-a policy strongly encouraged by the Federal arbitration Act." 898 F.2d at 886.

 Finally, plaintiff argues that AAA's actions with respect to the handling of this matter have denied him due process of law. It should be noted that plaintiff has not asserted a claim under the Due Process Clause of the Constitution. Even if he had done so, however, such a claim would be deficient. The protection of the Fourteenth Amendment extends only to scrutiny of state actions. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S. Ct. 449, 452, 42 L. Ed. 2d 477 (1974). As the acts of AAA did not constitute "state action", plaintiff cannot state a claim for violation of his due process rights.

 Accordingly, plaintiff's first, second and third causes of action are DISMISSED for failure to state a claim upon which relief can be granted.


 Date: March 9, 1992


 United States District Judge

 EDITOR'S NOTE: The following court-provided text does not appear at this cite in 795 F. Supp. 970.

 JUDGEMENT - March 10, 1992, Filed; March 11, 1992, Entered

 For the reasons stated in the Opinion and Order signed on March 9, 1992 and filed on March 10, 1992, judgment is hereby entered in favor of defendant and against plaintiff.

 Dated: March 9, 1992


 United States District Judge

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