10-4655-cv
     Raw v. Bank of NY Mellon Corp.


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 10th day of January, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PIERRE N. LEVAL,
 9                DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       David Raw,
14                Plaintiff-Appellant,
15
16                    -v.-                                               10-4655-cv
17
18       Bank of New York Mellon Corporation
19       and Pershing LLC,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR PLAINTIFF-APPELLANT:              Stephen J. Calvacca, Law Offices
24                                             of Calvacca Moran, West
25                                             Falmouth, Mass.
26
27       FOR DEFENDANTS-APPELLEES:             Howard J. Rubin (Jessica Golden
28                                             Cortes and Jason Pruzansky, on
29                                             the brief), Davis & Gilbert LLP,
30                                             New York, NY.

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1
2        Appeal from a judgment of the United States District

3    Court for the Eastern District of New York (Hurley, J.).

4

5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

6    AND DECREED that the District Court’s judgment is AFFIRMED.

7

8        Plaintiff-Appellant, David Raw, appeals from a judgment

9    of the District Court dismissing his suit on the ground that

10   the parties agreed to arbitrate.   We assume the parties’

11   familiarity with the underlying facts, the procedural

12   history of the case, and the issues on appeal.

13   [1] Plaintiff cannot avail himself of Section 922 of Dodd-

14   Frank (codified at 18 U.S.C. § 1514A(e)) because he

15   forfeited that argument when he failed to raise it in the

16   District Court.   Greene v. United States, 

, 586

17   (2d Cir. 1994) (“[I]t is a well-established general rule

18   that an appellate court will not consider an issue raised

19   for the first time on appeal.”); cf. United States v. Olano,

20   

, 733 (1993) (distinguishing between forfeiture

21   -- “the failure to make the timely assertion of a right” --

22   and waiver -- “the intentional relinquishment or abandonment

23   of a known right”) (internal quotation marks omitted).

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1        As Plaintiff emphasizes, Section 1514A(e) did not take

2    effect until after briefing on the motion to dismiss

3    concluded.   However, the District Court did not issue its

4    decision until October 21, 2010 -- nearly three months after

5    Section 1514A(e) took effect; after the District Court’s

6    decision, Plaintiff did not move for reconsideration, which

7    afforded him an additional 28 days after the District

8    Court’s decision to raise this argument, see Fed. R. Civ. P.

9    59(e); and after Plaintiff filed the notice of appeal, he

10   did not seek relief under Rule 62.1 of the Federal Rules of

11   Civil Procedure once he learned of Section 1514A(e).

12   Accordingly, Plaintiff forfeited any argument regarding the

13   implication of Section 1514A(e).

14   [2] As to the issues and arguments raised by Plaintiff

15   below, we affirm for substantially the same reasons stated

16   by the District Court’s thorough opinion.

17

18       We have considered all of Plaintiff’s additional

19   arguments and find them to be without merit.   Accordingly,

20   the judgment of the District Court is hereby AFFIRMED.

21

22                               FOR THE COURT:
23                               Catherine O’Hagan Wolfe, Clerk
24




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