also considered and disposed of plaintiff's remaining contentions that the submission to arbitration was not voluntary.
Plaintiff filed the present suit against Defendant in the United States District Court on February 11, 1966, and Defendant now moves to dismiss on the grounds that the matter is res judicata, involving the same parties and the same basic factual contentions as were set forth in the arbitration claim and the subsequent state court review.
Plaintiff claims that her present action is not so barred because it is based upon causes of action provided by Federal law. 15 U.S.C.A. § 77p, and 15 U.S.C.A. § 78bb, both provide that the rights and remedies provided by those Acts "shall be in addition to any and all other rights and remedies that may exist in law or in equity." We recognize that actions under both the Securities Act of 1933 and the Securities Exchange Act of 1934 are based on different elements from common law actions for fraud and deceit in the state courts, and that the same set of operative facts may give rise to separate causes of action. Kernel Kutter, Inc. v. Fawcett Publications, Inc., 284 F.2d 675 (7th Cir., 1960), and that these may be sued upon separately. In Lippmann v. Hydro-Space Technology, Inc., 235 F. Supp. 860 (D.C.N.J. 1964), the court recognized this in dismissing the causes of action based on state law claims brought under diversity jurisdiction as being res judicata in prior state court action, and ruling separately under the claims brought under 15 U.S.C.A. § 77a et seq.
Plaintiff argues that her statement of claim to the arbitrators alleged misrepresentations and general mismanagement, and recited no violations of federal law, and that therefore the decision of the arbitrators was not based upon her separate causes of action under the federal statutes. Furthermore, Plaintiff asserts the entire lack of jurisdiction in either the arbitrators or the state courts to consider her claims.
We must first note that it is only as to the Securities Exchange Act of 1934 (15 U.S.C.A. § 78a et seq.) that the statute confers exclusive jurisdiction on the Federal Courts, 15 U.S.C.A. § 78aa. For causes of action arising out of violations of the Securities Act of 1933 (15 U.S.C.A. § 77a et seq.) 15 U.S.C.A. § 77v confers concurrent jurisdiction on the federal, state and territorial courts.
Plaintiff here has pleaded separate causes of action, those arising out of common law rights cognizable in this court under diversity jurisdiction, those under the Securities Act of 1933, cognizable in this court under concurrent jurisdiction, and those under the Securities Exchange Act of 1934 in which the jurisdiction is exclusively in the Federal Courts.
It is our opinion that as to all claims cognizable in the state courts, based upon common law rights, and all claims under the Securities Act of 1933, the Plaintiff has submitted her federal claims to a state tribunal freely and without reservation, has litigated them there, and has had them decided there. She is thus barred from a suit on the same claims in the Federal District Court. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964). The only avenue of appeal from the highest appellate court of a state where any right is set up or claimed under any statute of the United States is to the United States Supreme Court by writ of certiorari. 28 U.S.C.A. § 1257.
"And even though a question of federal law is presented in a case in a state court, if the court has jurisdiction of the subject matter and of the parties and after hearing enters judgment which is responsive to the issues and the judgment is affirmed by the highest court in the state, no court in the United States other than the Supreme Court on appeal or certiorari has jurisdiction to review, vacate or annul such judgment. Even though it is contended that such a judgment involves a denial of federal rights, the question cannot be reviewed in the courts of the United States except by appeal or certiorari to the Supreme Court. Angel v. Bullington, 330 U.S. 183, 67 Sup. Ct. 657, 91 L. Ed. 832." Parnacher v. Mount, 207 F.2d 788, at p. 791 (10th Cir., 1953).