er

Lauer, however, and the court explained how its restrictive reading
of section 4 is consistent with a permissive reading of sections 9,
10, and 11. Lauer, 49 F.3d at 329-30 (explaining that in post-
arbitration litigation, the location of the now-completed
arbitration is immaterial, while in pre-arbitration litigation,
judicial economy favors the district where arbitration will occur).
With the exception of a single sentence of dicta, Cortez Byrd Chips
fails to address section 4 at all, and presents no reason to think
that Lauer is not good law. I find that Lauer is good law, is
directly on point, and instructs that CNA’s motion could not have
been brought in the District of Connecticut.

Respondent’s motion to transfer is DENIED.

“bie L Baable-

Elaine E. Bucklo
United States District Judge

Dated: July 3, 2003



court in that forum can issue a § 4 order compelling arbitration.”
49 F.3d at 327 (emphasis in original).? Here, the parties agree
that the arbitration agreements provide that arbitration is to take
place in Chicago. Under Lauer, the District Court for the District
of Connecticut has no authority to issue an order under section
four regarding the arbitration here. CNA’s motion thus could not
have been brought before that court, and transfer under section
1404 is therefore not available.

The opinion in Lauer is well-reasoned and clear, and I see no
reason to discuss it in detail here. The only issue that needs to
be addressed is whether Lauer remains good law following the
Supreme Court’s decision in Cortez Byrd Chips, Inc. v. Bill Harbert
Construction Co., 529 U.S. 193 (2000). In Cortez Byrd Chips, the
Court held that the venue provisions of sections 9, 10, and 11 of
the FAA were permissive, allowing parties to bring motions to
confirm, vacate, or modify arbitration awards in any district, not
just the district where the arbitration took place. Id. at 195.

This was already the rule in the Seventh Circuit when it decided

2 Although the express terms of section 4 cover only the
situation where one party refuses to arbitrate at all, case law has
interpreted section 4 to cover the situation where a party agrees
to arbitrate a dispute, but fails to abide by the terms of the
arbitration agreement. Lauer, 49 F.3d at 327. Indeed, Lauer
itself was a case where both parties agreed that arbitration was
appropriate; there was simply a dispute over procedural issues.
Id.

3 And followed by a majority of courts. See Roe v. Gray, 165
F. Supp. 2d 1164, 1171-72 (D. Colo. 2001) (collecting cases).

3


Minute Oder Form (06/97)

United States District Court, Northern District of linois

ql) @

wine Magistrate ude Elaine E. Bucklo “nan Assigned Judge

CASE NUMBER 03 C 1441 DATE 7/3/2003

CASE Continental Casualty Co. vs. Hartford Steam Boiler

TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(e) Oo Filed motion of [ use listing in “Motion” box above.}
(2) oO Brief in support of motion due
(3) i) Answer briefto motion due___.._ Reply to answer brief due.
(4) im Ruling/Hearing on set for__—aat
(5) o Status hearing[held/continued to] [set for/re-set for] on setfor att
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on setfor se at___.
) Qa Trial[set for/re-set for] on___—__aat
(8) Oo (Bench/Jury trial] [Hearing] held/continued to__at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 CFRCP41(a(1) © FRCP41(a)(2).

ao [Other docket entry] Respondent’s motion to transfer this action to the District Court of

Connecticut is denied. Discovery is ordered closed on 10/30/03. Pretrial order will be due by 11/30/03;
and response to any motions in limine by 12/15/03. Pretrial conference set for 1/23/04 at 3:00 p.m. Trial
set for 2/9/04 at 9:30 a.m. Enter Memorandum Opinion and Order.

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

v | Notices mailed by judge’s staff.

3

number of notices

Notified counsel by telephone. JUL, Oui 2003
a won EY |
‘opy to judge/magistrate judge. yunod don = 7 vanes
MP) deputy's eee Hd &- ar eu was noice
“ ornege oe —



IN THE UNITED STATES DISTRICT COURT
FOR T THERN DISTRICT OF LINO:
TM EASTER DIVISION TM * DOCKETED

JUL 0 7 2003
CONTINENTAL CASUALTY COMPANY,

Petitioner,

v.
No. 03 C 1441

HARTFORD STEAM BOILER INSPECTION AND
INSURANCE COMPANY,

Respondent.
MEMORANDUM OPINI IRDER

Petitioner Continental Casualty Company (“CNA”) and respondent
Hartford Steam Boiler Inspection and Insurance Company (“HSB”)
entered into various reinsurance agreements that contained
arbitration clauses. Under the arbitration agreements, disputes
between CNA and HSB were to be submitted to a panel of three
arbitrators. Each party would select one arbitrator, with those
two arbitrators selecting the third. The arbitration agreements
also provided, however, that if one party failed to timely select
its arbitrator, the other party would be allowed to select two
arbitrators.

A dispute arose between CNA and HSB involving the reinsurance
agreements, and CNA initiated arbitration. It allegedly sent a
letter to HSB demanding arbitration and naming its arbitrator. HSB
claims that it never received this letter, and consequently, it
failed to timely select an arbitrator. As a result CNA announced

that it was selecting the second arbitrator. HSB objected and



a

attempted to name an arbitrator. Based on the dispute over the
selection of arbitrators, both sides sought relief in federal
court. CNA filed in this court a petition to enforce the
arbitration agreement. The next day, HSB filed a claim for
declaratory relief in the District of Connecticut. HSB seeks to
transfer this action to the District of Connecticut pursuant to 28
U.S.C. § 1404. I deny the motion.

28 U.S.C. § 1404 provides that “[f]lor the convenience of
parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division
where it might have been brought.” Thus, a threshold question is
whether CNA’s petition “might have been brought” in the District of
Connecticut. Astonishingly, neither party cites to the case that
most quickly answers this question, Merrill Lynch, Pierce, Fenner
& Smith, Inc. v. Lauer, 49 F.3d 323, 326 (7th Cir. 1995). CNA’s
petition was brought pursuant to section 4 of the Federal
Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., which permits a
district court to compel arbitration according to the terms of the
parties’ agreement. Lauer held that “where the arbitration

agreement contains a forum selection clause, only the district

1 Because the FAA does not create federal question subject
Matter jurisdiction, there must be an independent ground for
federal jurisdiction. Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 25 n.32 (1983). Here, the parties are of
diverse citizenship and satisfy the amount in controversy
requirement.