Jones Day v. Orrick, Herrington & Sutcliffe ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONES DAY, No. 21-16642
Petitioner-Appellant,
D.C. No.
v. 4:21-mc-80181-
JST
ORRICK, HERRINGTON & SUTCLIFFE,
LLP; MICHAEL D. TORPEY;
MITCHELL ZUKLIE, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted February 10, 2022
San Francisco, California
Filed August 1, 2022
Before: Kim McLane Wardlaw, Sandra S. Ikuta, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Wardlaw
2 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
SUMMARY *
Arbitration / Summonses
The panel reversed the district court’s order denying
Jones Day’s petitions to compel Orrick, Herrington &
Sutcliffe, LLP, to comply with an arbitrator’s subpoena
requiring two Orrick partners to appear at a hearing in an
international arbitration conducted pursuant to Chapter Two
of the Federal Arbitration Act.
First, the panel held that the district court had subject
matter jurisdiction over the action to enforce arbitral
summonses issued by the arbitrator in an ongoing
international arbitration being conducted in Washington,
D.C., under the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards,
known as the New York Convention. FAA Chapter Two’s
jurisdictional provision, 9 U.S.C. § 203, provides federal
district courts with original jurisdiction over actions or
proceedings falling under the New York Convention.
Joining other circuits, the panel held that (1) if the
underlying arbitration agreement or award falls under the
New York Convention, and (2) the action or proceeding
relates to that agreement or award, then the federal district
court has jurisdiction over the action or proceeding.
The panel further held that venue was proper in the
Northern District of California. Section 204 of the FAA
provides that where the arbitration agreement designates a
place of arbitration in the United States, an action or
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 3
proceeding may be brought in the district embracing the
place of arbitration. However, where, as here, that federal
district court lacks personal jurisdiction over the party
against whom enforcement is sought, the action may be
brought in any district court deemed appropriate under the
general venue statute, 28 U.S.C. § 1391, because § 204
supplements, rather than supplants, other venue rules.
The panel reversed and remanded with instructions to
enforce Jones Day’s petitions to compel Orrick and its
partners to comply with the arbitral summonses.
COUNSEL
Craig E. Stewart (argued), David C. Kiernan, and Paul C.
Hines, Jones Day, San Francisco, California, for Petitioner-
Appellant.
Sarah M. Harris (argued), Michael J. Mestitz, Benjamin W.
Graham, and Aaron Z. Roper, Williams & Connolly LLP,
Washington, D.C.; L. Christopher Vejnoska, Orrick
Herrington & Sutcliffe LLP, San Francisco, California; for
Respondents-Appellees.
4 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
OPINION
WARDLAW, Circuit Judge:
Congress enacted Chapter Two of the Federal
Arbitration Act (“FAA”), see 9 U.S.C. §§ 201–208, to
provide for the effective and efficient resolution of
international arbitral disputes after the United States entered
into the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York, June
1958) (“the New York Convention” or “Convention”). This
appeal arises from the denial of a petition to enforce a
summons issued by an arbitrator conducting an international
arbitration pursuant to Chapter Two of the FAA.
We first address subject matter jurisdiction. Unlike
Chapter One of the FAA, which governs domestic arbitral
disputes and does not include a jurisdictional provision,
Chapter Two of the FAA includes a jurisdictional provision,
9 U.S.C. § 203, which provides federal district courts with
original jurisdiction over “action[s] or proceeding[s] falling
under the Convention.” It is clear that the enforcement of an
agreement to arbitrate or an arbitral award “fall[s] under the
Convention,” but we must decide whether an action to
enforce an arbitral summons issued by the arbitrator in an
ongoing international arbitration under the Convention also
“falls under the Convention.” We join our sister circuits in
holding that (1) if the underlying arbitration agreement or
award falls under the Convention, and (2) the action or
proceeding relates to that agreement or award, then the
federal district court has jurisdiction over the action or
proceeding.
This conclusion raises the question of in which district
court should the enforcement action be brought? Section
204 of the FAA provides that where the arbitration
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 5
agreement designates a “place of arbitration” in the United
States, an action or proceeding may be brought in the district
embracing the place of arbitration. However, where, as here,
that federal district court lacks personal jurisdiction over the
party against whom enforcement is sought, we hold that the
action may be brought in any district court deemed
appropriate under the general venue statute, 28 U.S.C.
§ 1391, because § 204 supplements, rather than supplants,
other venue rules.
I.
At the root of the ongoing international arbitration is a
dispute between Jones Day and one of its former partners, a
German national who was based in its Paris office, until he
left to join Orrick, Herrington & Sutcliffe. 1 Jones Day’s
partnership agreement provides for mandatory arbitration of
all disputes among partners, and that all such arbitration
proceedings are governed by the FAA. The partnership
dispute proceeded to arbitration in Washington D.C., the
location designated in the arbitration agreement.
Jones Day requested that the arbitrator issue a subpoena
to Orrick for documents it deemed material to its claims
against its former partner. The arbitrator issued a subpoena
and summoned Orrick to appear before him to produce the
specified documents. When Orrick failed to comply with the
subpoena, Jones Day sought to enforce it in the Superior
Court of the District of Columbia. That court dismissed
Jones Day’s petition, concluding that it lacked personal
1
Because details of this underlying partnership dispute are
irrelevant to the issues joined in this appeal, we have granted the parties’
motions to seal portions of the briefs and record that relate to that dispute.
To the extent this opinion references information from sealed
documents, the information is unsealed for purposes of the disposition.
6 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
jurisdiction over Orrick, whose principal place of business is
San Francisco, and that section 7 of the FAA “requires Jones
Day to file its action to enforce an arbitral subpoena in a
United States district court.”
Jones Day then requested that the arbitrator sit for a
hearing in the Northern District of California and issue a
revised subpoena requiring two Orrick partners residing in
the Northern District to appear at a hearing in San Jose,
California. The arbitrator granted Jones Day’s request and
issued the arbitral summonses. Orrick refused to comply
with those summonses, so Jones Day filed this action to
enforce them in the District Court for the Northern District
of California.
The district court denied Jones Day’s petition,
concluding that it lacked authority to compel compliance
with the summonses under FAA § 7, which it construed as
providing that the district where the arbitrator sits is the only
district in which a district court may compel attendance. See
9 U.S.C. § 7. Reasoning that “it is undisputed that
Washington D.C. is the seat of the underlying arbitration,”
the district court concluded it could not compel attendance
at a hearing in San Jose, California. The district court
rejected Jones Day’s argument that an arbitrator can “sit” in
more than one location, and that for purposes of the hearing
in San Jose, the arbitrator would be sitting in the Northern
District. Because it dismissed Jones Day’s petition on venue
grounds, the district court declined to decide whether
Chapter Two of the FAA conferred subject matter
jurisdiction over actions to enforce an arbitral summons to a
third party.
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 7
II.
We have jurisdiction under 28 U.S.C. § 1291. “We
review questions of statutory construction and subject-
matter jurisdiction de novo.” Lake v. Ohana Mil. Cmtys.,
LLC, 14 F.4th 993, 1000 (9th Cir. 2021) (quoting City of
Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020)). We
also review the district court’s denial for improper venue de
novo. California v. Azar, 911 F.3d 558, 568 (9th Cir. 2018).
III.
A.
Although the district court declined to decide the issue,
we first conclude that the district court had subject matter
jurisdiction to enforce the arbitral summonses. Section 203
of the FAA provides federal district courts with original
jurisdiction, without regard to the amount in controversy,
over “[a]n action or proceeding falling under the
Convention.” 9 U.S.C. § 203. The parties do not dispute,
and we hold, that the petitions to compel enforcement of
arbitral summonses constitute “actions or proceedings”
under the statute. Rather, they differ only as to whether such
enforcement actions “fall under the Convention.”
We begin with the text of the statute, here Chapter Two
of the FAA, which governs arbitrations under the
Convention. Section 203 provides that “[a]n action or
proceeding falling under the Convention shall be deemed to
arise under the laws and treaties of the United States.”
9 U.S.C. § 203. It further provides that the federal district
courts “shall have original jurisdiction over such an action
or proceeding . . .” Id. There is no question that the
arbitration agreement itself falls under the Convention.
9 U.S.C. § 202. Agreed, says Orrick, but neither the
8 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
Convention nor Chapter Two of the FAA expressly provides
any tool to enforce arbitral summonses. Orrick contends that
the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards is narrowly limited to just that—
the recognition and enforcement of completed arbitral
awards. Moreover, it argues, actions or proceedings that
“fall under” the Convention are limited to those set forth in
Chapter Two of the FAA. That would confine § 203
jurisdiction to just three types of actions or proceedings:
orders to compel arbitration, 9 U.S.C. § 206; appointments
of arbitrators in accordance with an arbitration agreement,
id.; or orders confirming an arbitral award, 9 U.S.C. § 207.
Orrick reasons that because Congress “conspicuously” did
not include a provision regarding petitions to enforce arbitral
summonses, such a petition is not an action or a proceeding
encompassed under § 203.
Orrick argues that to “fall under” means to be “listed or
classified as” or “included in,” citing Webster’s New World
Dictionary and the MacMillan Contemporary Dictionary.
However, dictionaries from around 1970 (the year Congress
enacted § 203, see Pub. L. 91-368 (July 31, 1970), 84 Stat.
692) embrace a broader definition of “fall under” than what
Orrick asserts here. See The Compact Edition of the Oxford
English Dictionary Vol. I 955 (1971) (“To be brought under
the operation or scope of, be subjected to”); Oxford
Dictionary of Current Idiomatic English Vol. I 102 (1975)
(“be classified as, be placed within a certain category”). As
these dictionaries demonstrate, the ordinary meaning of “fall
under” does not support Orrick’s contention that courts have
jurisdiction under § 203 only if the action or proceeding is
expressly listed or identified in the Convention.
In addition to the ordinary meaning of § 203’s text, the
structure of the Convention and Chapter Two of the FAA
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 9
supports the conclusion that actions or proceedings need not
be explicitly listed in the Convention to “fall under” the
Convention. The Supreme Court has rejected the notion that
the New York Convention must list every “judicial tool” for
it to “fall under the Convention.” In GE Energy Power
Conversion France SAS, Corp. v. Outokumpu Stainless USA,
LLC, 140 S. Ct. 1637 (2020), the Court determined that the
domestic doctrine of equitable estoppel, which permits the
enforcement of arbitration agreements against
nonsignatories, does not conflict with the Convention, and
so is applicable in international arbitrations. Id. at 1645
(citing 9 U.S.C. § 208, which provides that Chapter One
applies to actions and proceedings brought under Chapter
Two to the extent they do not conflict with Chapter Two or
the Convention).
The Court began by examining the text of the New York
Convention. Arbitration agreements are discussed only in
Article II of the Convention, and enforcement of arbitration
agreements is limited to just a single provision, Article II(3),
which states that “courts of a contracting state ‘shall . . . refer
the parties to arbitration’ when the parties to an action
entered into a written agreement to arbitrate and one of the
parties requests referral to arbitration.” Id. But the Court
held that Article II(3) does not preclude application of the
domestic doctrine of equitable estoppel because it “contains
no exclusionary language; it does not state that arbitration
agreements shall be enforced only in the identified
circumstances.” Id. (emphasis in original). The Court
viewed a counter interpretation inappropriate because “the
provisions of Article II contemplate the use of domestic
doctrines to fill gaps in the Convention.” Id. Thus, the Court
did not “read the nonexclusive language of [Article II(3) of
the Convention] to set a ceiling that tacitly precludes the use
of domestic law to enforce arbitration agreements.” Id.10 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
So too here. Neither the Convention nor Chapter Two
contains any language excluding the use of petitions to
enforce arbitral summonses. There is no language in either
that limits the tools that may be utilized in international
arbitrations in ways domestic arbitrations are not so limited.
The only limitation is set forth in § 208, which as the
Supreme Court noted in GE Energy, disallows only those
processes provided for in domestic arbitrations under
Chapter One that conflict with Chapter Two or the
Convention. 9 U.S.C. § 208; see also GE Energy, 140 S. Ct.
at 1644–45. Far from conflicting with the Convention,
judicial enforcement of an arbitrator’s summons only aids in
the arbitration process. We therefore conclude that “Section
7 is a nonconflicting provision in Chapter 1 that residually
applies through Chapter[] 2.” Restatement (Third) U.S. Law
of Int’l Comm. Arb. § 3.4(e) (Am. Law Inst., Prop. Final
Draft (April 24, 2019)) (“Restatement Prop. Final Draft”)
(citing 9 U.S.C. §§ 203 and 208); see also George A.
Bermann et al., A Model Federal Arbitration Summons to
Testify and Present Documentary Evidence at an Arbitration
Hearing, 26 Am. Rev. Int’l Arb. 157, 172 (2015) (same).
Orrick’s argument that the only permissible judicial actions
or proceedings are those explicitly listed in Chapter Two
thus runs afoul of Chapter Two and the Convention’s plain
language, structure, and objectives.
As other courts have concluded, reading “falling under”
more broadly to include proceedings necessary to complete
the arbitration process for purposes of original jurisdiction is
also supported by Chapter Two’s delineation of the scope of
district courts’ removal jurisdiction. Section 205 of the FAA
provides that “[w]here the subject matter of an action or
proceeding pending in a State court relates to an arbitration
agreement or award falling under the Convention, the
defendant or the defendants may, at any time before the trial
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 11
thereof, remove such action or proceeding to the district
court of the United States for the district and division
embracing the place where the action or proceeding is
pending.” 9 U.S.C. § 205. If “falling under” in § 203 is not
deemed at least co-extensive with “relates to” in § 205, then
that would mean Congress intended the district courts to
have a narrower scope of original jurisdiction than removal
jurisdiction in enforcing international arbitration awards.
Yet, the very purpose of the Convention and the Chapter
Two implementing procedures is to encourage arbitration
and to “authorize district courts to take actions necessary to
ensure that the parties’ underlying controversy is
successfully resolved through arbitration.” Maine Cmty.
Health Options v. Albertsons Cos., Inc., 993 F.3d 720, 725
(9th Cir. 2021) (Watford, J., concurring). The irony of
Orrick’s contrary position is that, in this very case where it
asserts the Northern District of California lacks original
jurisdiction, the same court would have had removal
jurisdiction under FAA § 205 had Jones Day filed its petition
to enforce the subpoena in San Francisco Superior Court. In
that scenario, Orrick could have removed the enforcement
action to the Northern District to oppose enforcement of the
arbitral subpoena. This would be an absurd result, especially
in light of congressional policy to enforce arbitration—not
resist it—and the proceedings that further arbitration of
international disputes. See 9 U.S.C. §§ 206, 207.
The Fifth Circuit engaged in a similar analysis in
Stemcor USA Inc. v. CIA Siderurgica do Para Cosipar,
927 F.3d 906 (5th Cir. 2019), where the court determined it
had § 203 jurisdiction over one party’s action for an
attachment related to an international arbitration covered by
the New York Convention. The court reasoned that the
meaning of § 203’s term “falling under” must be guided by
the removal statute, § 205, because “generally, the removal
12 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
jurisdiction of the federal district courts extends to cases
over which they have original jurisdiction.” Id. at 909
(cleaned up). The Fifth Circuit expressly rejected the
argument Orrick makes here—that § 203 original
jurisdiction is limited to actions compelling arbitration and
appointing arbitrators under § 206 and confirming
arbitration awards under § 207. Id. at 910 n.1.
Orrick argues that Stemcor’s reliance on § 205 removal
jurisdiction is “based on a faulty assumption that removal
jurisdiction and original jurisdiction share the same scope.”
Not so. Stemcor does not hold that removal jurisdiction is
always coextensive with original jurisdiction, but more
narrowly reasons that, in the context of Chapter Two, there
is no reason to believe that Congress intended that original
and removal jurisdiction would not be coextensive. See id.
at 909. Thus, the Fifth Circuit in Stemcor considered the
plain meaning of “relates to” in § 205 and falling under in
§ 203 and concluded that the terms share the same meaning
for purposes of articulating the federal courts’ original
jurisdiction in § 203. It reasoned that “reading ‘falling
under’ to mean ‘relates to’ makes sense grammatically,” and
cited the Merriam-Webster Collegiate Dictionary definition
of “fall” as “to come within the limits, scope or jurisdiction
of something.” Stemcor, 927 F.3d at 909. The Fifth Circuit
then held that a federal court has jurisdiction under the
Convention if two requirements are met: “(1) there must be
an arbitration agreement or award that falls under the
Convention, and (2) the dispute must relate to that arbitration
agreement.” Id.
The Second and Eleventh Circuits agree with the Fifth
Circuit’s analysis. For example, in Scandinavian
Reinsurance Co. v. Saint Paul Fire & Marine Ins. Co.,
668 F.3d 60 (2d. Cir. 2012), the Second Circuit concluded
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 13
that the district court had jurisdiction under § 203 “to vacate
an arbitral award,” an action not expressly authorized under
Chapter Two. Id. at 64, 71; see also Borden, Inc. v. Meiji
Milk Prods. Co., Ltd., 919 F.2d 822, 826 (2d. Cir. 1990)
(finding that subject matter jurisdiction exists over an
application for a preliminary injunction in aid of arbitration
because it is “consistent with [the Act’s] provisions and its
spirit”).
The Eleventh Circuit also held it had subject matter
jurisdiction under § 203 over a party’s motion to vacate an
arbitral award. See Inversiones y Procesadora Tropical
INPROTSA, S.A. v. Del Monte Int’l GmbH, 921 F.3d 1291,
1299 (11th Cir. 2019). Like Orrick here, INPROTSA argued
that the New York Convention and Chapter Two expressly
provided jurisdiction only over actions to compel arbitration
and to confirm an award. Id. at 1298. The Eleventh Circuit
rejected that assertion, reasoning that Chapter Two “is
merely a statute by which the Convention has been
implemented in this country.” Id. at 1299. “The relevant
inquiry under § 203 is not whether a particular action or
proceeding is provided by the Convention Act; it is whether
the ‘action or proceeding fall[s] under the Convention’
itself.” Id. (citations omitted). Thus, the court explained
“that the Convention Act appears to expressly recognize only
two causes of action” does not resolve whether an action
falls under the Convention. Id. (emphasis added). The court
further stated that, even assuming the Convention did not
expressly authorize vacatur proceedings, INPROTSA’s
argument failed because it was incorrect to “assume[] an
action or proceeding cannot fall under a particular body of
law unless the action or proceeding is provided by that body
of law.” Id. (emphasis in original). The court explained that
in its view, “an action or proceeding ‘fall[s] under the
Convention,’ for purposes of § 203, when it involves subject
14 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
matter that—at least in part—is subject to the Convention,
such that the action or proceeding implicates interests the
Convention seeks to protect.” Id. at 1299–1300. As a
practical matter, “this will require that the case sufficiently
relate to an agreement or award subject to the Convention.”
Id. at 1300.
Like the Fifth Circuit, the Eleventh Circuit’s
interpretation of § 203 was “reinforced” by its understanding
of § 205. “Section 205 demonstrates congressional intent to
provide a federal forum for resolving issues implicating the
Convention.” Id. “It would make little sense for Congress
to specifically authorize removal of cases over which the
federal courts would lack subject-matter jurisdiction . . . . It
makes far more sense to conclude Congress intended § 203
to be read consistently with § 205 as conferring subject-
matter jurisdiction over actions or proceedings sufficiently
related to agreements or awards subject to the Convention.”
Id.; see also Republic of Ecuador v. Chevron Corp., 638 F.3d
384, 391 n.6 (2d. Cir. 2011) (“The Convention should be
interpreted broadly to effectuate its recognition and
enforcement purposes.” (cleaned up)).
We agree with the Fifth and Eleventh Circuits’ expansive
reading of § 203, and we hold that a federal court has original
jurisdiction over an action or proceeding if two requirements
are met: (1) there is an underlying arbitration agreement or
award that falls under the Convention, and (2) the action or
proceeding relates to that arbitration agreement or award.
See Stemcor, 927 F.3d at 909. And, for purpose of the
second requirement, we adopt the meaning of “relates to,”
which we previously defined for purposes of § 205, as
whether the proceeding “could conceivably affect the
outcome of the plaintiff’s case,” Infuturia Global Ltd. v.
Sequus Pharms., Inc., 631 F.3d 1133, 1138 (9th Cir. 2011)
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 15
(emphasis in original), citing another Fifth Circuit decision,
Beiser v. Weyler, 284 F.3d 665, 669 (5th Cir. 2002).
Applying these jurisdictional requirements to the facts of
this case is straightforward. The underlying arbitration
agreement between Jones Day, an international law firm
residing for jurisdictional purposes in Washington D.C., and
its former non-U.S. citizen partner falls under the
Convention as defined by § 202. The petition to compel
Orrick’s compliance with the arbitral summonses relates to
the underlying arbitration agreement, as the arbitrator
determined that evidence adduced from the participation
may be material to resolving the dispute.
Not only are these proceedings “related to” an arbitration
agreement falling under the Convention, petitions to enforce
a summons issued by the arbitrator are necessary ancillary
proceedings that ensure the proper functioning of the
underlying arbitration. As Judge Watford has explained,
“[c]onsidering the structure of the FAA as a whole, it seems
evident . . . that Congress envisioned a § 7 petition [to
enforce an arbitral summons to a third party] not as a
freestanding lawsuit, but as an adjunct to the ‘underlying
substantive controversy’ between the parties in arbitration.”
Maine Cmty. Health Options, 993 F.3d at 725 (Watford, J.,
concurring) (quoting Vaden v. Discover Bank, 556 U.S. 49,
62 (2009)). 2 “[T]he enforcement of a subpoena brings
2
9 U.S.C. § 7 provides for arbitrators to “summon in writing any
person to attend before them or any of them as a witness and in a proper
case to bring with him or them any book, record, document, or paper
which may be deemed material as evidence in the case,” and that “if any
person or persons so summoned to testify shall refuse or neglect to obey
said summons, upon petition the United States district court for the
district in which such arbitrators, or a majority of them, are sitting may
compel the attendance of such person.” Thus, unlike Chapter Two,
16 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
before the court one aspect of enforcing the parties’
agreement to arbitrate—not the right to arbitrate itself, but
the enjoyment of a key procedural attribute of the arbitration
the parties bargained for.” Bermann, 26 Am. Rev. Int’l Arb.
at 173.
This view of what “fall[s] under” the Convention is
consistent with the contemplation of the signatories to the
agreement. The New York Convention has been adopted by
nearly 200 nations worldwide because of the expanding role
arbitration plays in resolving international commercial
disputes. The purpose of the Convention is twofold: (1) to
ensure that countries recognize and enforce arbitration
agreements, and (2) to ensure that countries recognize and
enforce foreign arbitral awards. See Scherk v. Alberto-
Culver Co., 417 U.S. 506, 520 n.15 (1974). By signing on
to the Convention and adopting Chapter Two of the FAA,
“the United States sought ‘to encourage the recognition and
enforcement of commercial arbitration agreements in
international contracts and to unify the standards by which
agreements to arbitrate are observed and arbitral awards are
enforced in the signatory countries.’” Castro v. Tri Marine
Fish Co., 921 F.3d 766, 773 (9th Cir. 2019) (quoting Scherk,
417 U.S. at 520 n.15). Recognizing and enforcing
arbitration agreements includes facilitating the arbitration
process and providing arbitrators—in both domestic and
international arbitrations—with access to the ancillary
actions and proceedings necessary to arrive at an arbitration
Chapter One of the FAA does list petitions to compel arbitral summons
as an “action or proceeding.” Chapter One, however, “bestow[s] no
federal jurisdiction but rather requires an independent jurisdictional
basis.” Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582
(2008) (internal quotations omitted).
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 17
award. This includes arbitral subpoenas and their
enforcement.
Thus, under 9 U.S.C. § 203, the district court had subject
matter jurisdiction to enforce the petitions to comply with
the arbitral summonses. 3
B.
Section 204 of the FAA provides a specific venue
provision for actions or proceedings authorized by § 203.
Such actions or proceedings “may be brought in any such
[district] court in which save for the arbitration agreement an
action or proceeding with respect to the controversy between
the parties could be brought, or in such court for the district
and division which embraces the place designated in the
agreement as the place of arbitration if such place is within
the United States.” 9 U.S.C. § 204. Jones Day asserts that
§ 204 is a non-exclusive venue provision that supplements,
rather than supplants, other venue rules. We agree.
We “refuse to nullify general venue laws, even in the
face of apparently more narrow venue provisions in specific
federal statutes.” Go-Video, Inc. v. Akai Elec. Co., 885 F.2d
1406, 1413 (9th Cir. 1989). The general federal venue
statute, 28 U.S.C. § 1391, “shall govern the venue of all civil
actions brought in district courts of the United States.” It
lists the judicial districts where “[a] civil action may be
brought,” § 1391(b), and applies “[e]xcept as otherwise
provided by law,” § 1391(a). Section 1391 “ensures that so
long as a federal court has personal jurisdiction over the
3
Because we answer the jurisdictional question on this ground, we
do not reach Jones Day’s alternative proffered bases for jurisdiction,
9 U.S.C. §§ 206 and 208.
18 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
defendant, venue will always lie somewhere.” Atl. Marine
Const. Co. v. U.S. Dist. Ct. for W.D. Tex., 571 U.S. 49, 57
(2013). “Congress does not in general intend to create venue
gaps, which take away with one hand what Congress has
given by way of jurisdictional grant with the other.” Id.(internal quotation marks and citation omitted). Only where
there is evidence “that Congress intended the specific venue
provision to be exclusive or . . . restrictively applied” will
parties be deprived of relying on the general venue statute.
Go-Video, Inc., 885 F.2d at 1409; see also Pure Oil Co. v.
Suarez, 384 U.S. 202, 205–07 (1966) (same).
Nothing in the text of § 204 indicates that Congress
intended the FAA venue provision to be exclusive or
restrictively applied. Section 204 is the only provision
addressing venue in Chapter Two, and it is silent as to
28 U.S.C. § 1391. Section 204 uses the permissive “may be
brought” to describe the additional authorized venues. “The
word ‘may,’ when used in a statute, usually implies some
degree of discretion.” United States v. Rodgers, 461 U.S.
677, 706 (1983) (citation omitted). Orrick would have us
read “may” as signaling “must,” but Congress did not use
any such mandatory language in drafting the statute.
Case law interpreting venue provisions in Chapter One
of the FAA also informs our reading of § 204. In Cortez
Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193(2000), the Supreme Court addressed the question whether
the venue provisions in 9 U.S.C. § 9 (actions to confirm an
arbitration award), § 10 (actions to vacate an arbitration
award), and § 11 (actions to modify an arbitration award) are
restrictive, requiring such actions to be brought in only the
district where the award was made, or are permissive,
“permitting such a motion either where the award was made
or in any district proper under the general venue statute.” Id.
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 19
at 204. Reasoning that the FAA was enacted at a time when
the general venue statute was restrictive, allowing a civil
action only where the defendant resided, the Court
concluded that the venue provisions added to that location,
rendering them permissive. See id. at 199–200. The Court
found that “[t]he enactment of the special venue provisions
in the FAA thus had an obviously liberalizing effect,
undiminished by any suggestion, textual or otherwise, that
Congress meant simultaneously to foreclose a suit where the
defendant resided.” Id. at 200. The Court recognized that
“[t]he most convenient forum for a defendant is normally the
forum of residence, and it would take a very powerful reason
ever to suggest that Congress would have meant to eliminate
that venue for postarbitration disputes.” Id. The Court
instead held that “the permissive view of FAA venue
provisions [is] entitled to prevail.” Id. at 204.
We expanded on this decision in Textile Unlimited, Inc.
v. A..BMH & Co., Inc., 240 F.3d 781 (9th Cir. 2001), in
which we held that the FAA venue provision in 9 U.S.C. § 4,
governing actions to compel arbitration, is likewise
permissive rather than exclusive. We concluded based on
the Court’s reasoning in Cortez Byrd that all of the FAA’s
venue provisions “do not supplant the general venue
provisions of 28 U.S.C. § 1391(a); rather, they are
permissive and supplement those sections.” Id. at 784. We
understood Cortez Byrd to instruct us to “weave the various
venue strands of the Act together into a seamless fabric
which does not clash with other federal venue statutes.” Id.(citing Cortez Byrd, 529 U.S. at 199–200). “Such an
analysis can only lead to a more elastic and complimentary
construction of venues available under the FAA, including
those founded on 28 U.S.C. § 1391 alone.” Id.20 JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE
The district court’s analysis was focused on the specific
venue provision set forth in 9 U.S.C. § 7, the Chapter One
provision that governs petitions to compel compliance with
an arbitrator’s summons filed in district court. Section 7
provides for enforcement of an arbitral summons in the
“district in which such arbitrators, or a majority of them, are
sitting.” The court reasoned that because it is undisputed
that Washington D.C. is the “seat of the underlying
arbitration,” it lacked jurisdiction to enforce the summons.
But the district court did not consider the specific venue
provision applicable here, 9 U.S.C. § 204, nor did it consider
whether that provision was exclusive or permissive. 4
Orrick points to § 201, which provides that the
“Convention . . . shall be enforced in the United States courts
in accordance with this chapter.” 9 U.S.C. § 201. Congress’
use of “shall” here, Orrick argues, mandates the use of
Chapter Two’s provisions in any proceedings under the
chapter, including the specific venue provision in § 204. To
support this argument, Orrick cites Johnson v. Payless Drug
Stores Nw., Inc., 950 F.2d 586 (9th Cir. 1991), where we
held in the Title VII context that the later-enacted specific
venue provision in 42 U.S.C. § 2000e-5(f) governed over the
general venue statute. Title VII, however, expressly
provided that the venue “provisions of section 2000e-5(f) . . .
shall govern” employment discrimination actions. 42 U.S.C.
§ 2000e-16(d). And, we held, that language “is mandatory.”
Johnson, 950 F.2d at 587 (citation omitted).
4
Because we hold that 9 U.S.C. § 204 is a non-exclusive venue
provision that supplements, rather than supplants, other venue rules
(including 28 U.S.C. § 1391), we need not resolve the parties’ dispute as
to whether 9 U.S.C. § 7 provides for venue (or where).
JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE 21
Unlike in Title VII, the language in 9 U.S.C. § 204,
which provides for venue here, is not mandatory. Rather,
§ 204 is a permissive, supplemental venue provision in
addition to the general venue provision, 28 U.S.C. § 1391.
Neither party argues that the Northern District of California
is an improper venue under § 1391. Under § 1391, the
Northern District of California is a proper venue because it
is Orrick’s principal place of business. Therefore, it was
error to dismiss the petitions on venue grounds. Because the
district court had subject matter jurisdiction and no other
challenges were raised to the petitions, the district court
should have granted Jones Day’s petitions to enforce the
summonses.
IV.
For these reasons, we reverse and remand with
instructions to enforce Jones Day’s petitions to compel
Orrick and its partners to comply with the arbitral
summonses.
REVERSED AND REMANDED.