Dynegy Midstream Services v. Trammochem

• Decision Date: 13 June 2006
• Docket Number: Docket No. 05-3544-CV.
• Citation: 451 F.3d 89
• Parties: DYNEGY MIDSTREAM SERVICES, LP, also known as DMS, Petitioner-Appellant, v. TRAMMOCHEM, Division of Transammonia, Inc., A.P. Moller (Maersk Gas Carriers) and Igloo Shipping, a/s, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

451 F.3d 89

DYNEGY MIDSTREAM SERVICES, LP, also known as DMS, Petitioner-Appellant, v. TRAMMOCHEM, Division of Transammonia, Inc., A.P. Moller (Maersk Gas Carriers) and Igloo Shipping, a/s, Respondents-Appellees.

Docket No. 05-3544-CV.

United States Court of Appeals, Second Circuit.

Argued: December 15, 2005.

Decided: June 13, 2006.

Bradley L. Deluca, Johnson Deluca Kennedy & Kurisky, P.C., (Susan L. Read, Johnson Deluca Kennedy & Kurisky, P.C., Peter A. Cross, Hugh Zuber, Jacob Medinger & Finnegan, LLP on the brief) Houston, TX, for Petitioner-Appellant.

Christopher H. Mansuy, DeOrchis & Partners, LLP, (Lili F. Beneda on the brief) New York, NY, for Respondents-Appellees.

Before POOLER, KATZMANN, and B.D. PARKER, Circuit Judges.

POOLER, Circuit Judge.

Respondents-appellees are parties to an arbitration in New York. The arbitrators in that dispute issued a subpoena directing petitioner-appellant to produce documents and electronic data. Petitioner chose to ignore the subpoena, and respondents filed a motion to compel compliance in the United States District Court for the Southern District of New York (Baer, J.). The district court granted the motion to compel, over petitioner's objection that the court lacked personal jurisdiction over it. Petitioner filed a timely notice of appeal.

We hold, as an initial matter, that where an order compelling compliance with an arbitrator's subpoena disposes of the entire case, it is a final order for the purposes of appellate jurisdiction. In addition, we hold that the Federal Arbitration Act does not authorize nationwide service of process and therefore the district court lacked personal jurisdiction over appellant. Because we lack personal jurisdiction, we find it unnecessary to address whether the Federal Arbitration Act authorizes the issuance of documents-only subpoenas to third parties.

BACKGROUND

Respondent-appellee Trammochem chartered a vessel from respondents-appellees A.P. Moller (Maersk Gas Carriers) and Igloo Shipping, A/S ("the vessel owners") to transport cargo from Houston, Texas to Antwerp, Belgium. The charter party¹ contained an arbitration clause, which required arbitration to take place in New York City. The vessel owners hired Inert Gas Systems, Inc. to perform services on the vessel in Houston in preparation for use by Trammochem, and Inert Gas Systems, Inc. engaged appellant-petitioner Dynegy Midstream Services ("DMS") to provide certain facilities and supplies. After the cargo arrived in Belgium, a dispute arose between Trammochem and the vessel owners because the cargo had become contaminated, possibly while the vessel was in Houston. Pursuant to the charter party, this dispute was submitted to arbitration.

A report prepared by Captain Bert Desmet, a member of the nautical Commission to the Commercial Court at Antwerp, concluded that the most likely cause of the contamination was DMS's shore-flare system. On November 12, 2004, A.P. Moller attempted to vouch² DMS into the arbitration, demanding that DMS defend and indemnify it. DMS refused to participate in the arbitration. DMS contends this was because it did not have sufficient time to prepare to participate in the arbitration, and it decided it would be preferable strategically to attempt to limit the extent to which it would be bound by the arbitration.

On February 9, 2005, the arbitrators issued a subpoena requiring DMS to produce documents related to DMS's shore flare system at an office in Houston at 10 a.m. on March 11, 2005. This subpoena was served on DMS's registered agent in Houston on February 16, 2005. DMS refused to comply, apparently again because of concern about the preclusive impact of any participation in the arbitration. Respondents filed a motion to compel in the Southern District of New York. It is undisputed that DMS has no contacts with New York. DMS argued that the district court did not have personal jurisdiction over it. The district court disagreed, and ordered DMS to comply with the subpoena.

DISCUSSION

This case raises jurisdictional issues connected to the subpoena power of arbitrators under the Federal Arbitration Act ("FAA"). Section 7 of the FAA empowers 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." 9 U.S.C. § 7. Such a summons must be "served in the same manner as subpoenas to appear and testify before the court" and may be enforced by the "district court for the district in which such arbitrators, or a majority of them, are sitting." Id. Section 16 of the FAA provides for appeal from "a final decision with respect to an arbitration that is subject to this title." 9 U.S.C. § 16(a)(3).

I. Appellate Jurisdiction

Although neither party contests appellate jurisdiction in this case, we have an independent duty to determine whether such jurisdiction exists. See Arnold v. Lucks, 392 F.3d 512, 517 (2d Cir.2004) ("[E]very federal appellate court has a special obligation to satisfy itself . . . of its own jurisdiction. . . ." (internal quotation marks omitted)); Henrietta D. v. Giuliani, 246 F.3d 176, 179 (2d Cir.2001) (noting obligation to raise issue of jurisdiction sua sponte where it is questionable). A recent decision of our Court questioned, without deciding, whether an order compelling compliance with an arbitrator's subpoena is a final order for the purposes of appellate jurisdiction. See Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567, 573-75 (2d Cir.2005). We hold that where, as here, an order compelling compliance disposes of all issues before the district court, it is a final order and immediately appealable.

Because FAA Section 16 allows appeal from "a final decision with respect to an arbitration that is subject to this title," we must decide whether the district court's order compelling compliance with the subpoena is a final decision within the meaning of this section. 9 U.S.C. § 16(a)(3). The Supreme Court has interpreted this section according to the "well-developed and longstanding meaning" of "final decision." Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). A final decision "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment." Id. (quoting, inter alia, Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)).

"Under traditional finality principles, a district court's decision to compel compliance with a subpoena or to deny a motion to quash a subpoena is generally not a `final decision' and therefore is not immediately appealable." Stolt-Nielsen, 430 F.3d at 574. "To obtain appellate review, the subpoenaed party must defy the district court's enforcement order, be held in contempt, and then appeal the contempt order, which is regarded as final. . . ." United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 469 (2d Cir. 1996) (citing, inter alia, United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971)). The same rule applies where the witness is a non-party. Dove v. Atl. Capital Corp., 963 F.2d 15, 17 (2d Cir.1992) (citing Alexander v. United States, 201 U.S. 117, 122, 26 S.Ct. 356, 50 L.Ed. 686 (1906)). The purpose of this rule is to prevent the temporary halt of the litigation process that would be required by an appeal from an order enforcing a subpoena. See Constr. Prods. Research, 73 F.3d at 469 (citing Reich v. Nat'l Eng'g & Contracting Corp., 13 F.3d 93, 95 (4th Cir.1993)).

Although this rule applies in civil, criminal, and grand jury proceedings, a different rule applies to the enforcement of agency subpoenas, which "`may be appealed immediately without first performing the ritual of obtaining a contempt order.'" Stolt-Nielsen, 430 F.3d at 574 (quoting Constr. Prods. Research, 73 F.3d at 469). This is because "at least from the district court's perspective, the court's enforcement of an agency subpoena arises out of a proceeding that may be deemed self-contained, so far as the judiciary is concerned. . . . [T]here is not . . . any further judicial inquiry which would be halted were the offending [subpoenaed party] permitted to appeal." Id. at 574-75 (internal quotations marks omitted).

In Stolt-Nielsen we noted certain interests that might favor requiring a party to be held in contempt before appealing. Id. at 575. Section 7 of the FAA permits a district court to punish failure to comply with an arbitrator's subpoena "for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States," 9 U.S.C. § 7, potentially suggesting that the general rule for challenging court subpoenas would apply. Stolt-Nielsen, 430 F.3d at 575. In addition, "courts have a well-recognized interest in preventing arbitrations from being slowed down by, or burdened by the expense of, piecemeal appeals of every subpoena issued by an arbitration panel." Id. (citing Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., 403 F.3d 85, 90 (2d Cir. 2005)); see also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ("Congress's clear intent, in the Arbitration Act, [was] to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.").

However, the extent to which arbitration would be delayed by appeals of orders enforcing subpoenas is unclear. In this case, the parties agreed at oral argument that the arbitration between Trammochem and the vessel owners has proceeded, despite DMS's refusal to participate, while this appeal has been pending. In addition, the reference to the district court's contempt powers in Section 7 does not set up a two-stage proceeding, where the district court...