The case of the day is Zavodnik v. Rinaldi (Ind. Ct. App. 2013). Gersh Zavodnik sued Michaela Rinaldi, who resided in Italy. The opinion does not discuss the substance of the claims. The trial court dismissed the claim for failure to make service of process, and Zavodnik appealed.
The decision isn’t really sufficient to allow readers to understand what happened in the case. I understand that the decision is an “unpublished” non-precedential decision, but still, it would be better if the court had laid out the record in more detail. It appears that Zavodnik attempted to serve process via the Hague Service Convention and that he filed a proof of service. But the proof of service was not to the trial judge’s liking: “There are various documents in the file which the Plaintiff purports to be proof of service but they are apparently in Italian, without translation.” Zavodnik pointed to what he claimed were translations of the documents in the record. It’s hard to know the details given such a cursory opinion. Zavodnik also apparently misdescribed the Italian central authority’s certificate of service as an “Article 10” certificate, when perhaps he meant an Article 6 certificate. And Zavodnik, who was represented by counsel on appeal, made an argument that is both hyperbolic and disrespectful to the judges, who are presumed to know the law:
The service through the means set forth in the international treaties is a process that is not taught in any law school, is rarely if every used by attorneys or judges in the state courts and as a result there is vast unfamiliarity with these treaties. Zavodnik has done everything in accordance with the provision (sic) of the Hague Convention and could easily teach the bar of this state on the treaties and the process, and the fact that these international treaties are supreme in power, authority, validity, or importance and therefore are to be recognized by every court in the United States.
Whoa there, cowboy!
The judges clearly didn’t like Zavodnik’s style:
It may be true, as Zavodnik claims, that “service through the means set forth in the international treaties … is rarely if ever used by attorneys or judges in the state courts,” and for that reason one might have expected Zavodnik to cite and/or quote from relevant federal cases, or even the relevant provisions of the Hague Convention itself, in order to enlighten the trial court and this Court on the subject. This he did not do. Instead, all we have are his unsupported self-serving claims that he properly filled out various forms that comply with the Hague Convention and that those forms were properly processed by Italian officials and properly delivered to Rinaldi, despite the apparent lack of certification or attestation as to the authenticity of the proffered documents. This is insufficient to establish prima facie error.
In other words, maybe Zavodnik was right, but he didn’t submit a brief that was of sufficient quality to allow the judges to decide.
We recently looked at Beck’s Superior Hybrids v. Monsanto, an Indiana decision denying enforcement of an arbitrator’s subpoena on the grounds that the proper court in which to seek enforcement, under Section 7 of the FAA, was the court at the seat of the arbitration. I thought it would be worth comparing the approach in Beck’s to the approach a party seeking evidence in an international arbitration could take to obtain evidence in advance of the hearing. Continue reading Pre-hearing discovery in arbitration: Beck’s Superior revisited
Beginning today, Letters Blogatory is going to cover cases on the enforcement of international arbitral awards and judicial assistance to international arbitral tribunals. The discussions about the scope of the judicial assistance statute we’ve had just in the first week (here and here) suggest to me that arbitration is closely linked to questions of judicial assistance generally. We may also be covering domestic arbitration issues from time to time to the extent they seem to bear on relevant issues.
Beck’s Superior Hybrids, Inc. v. Monsanto Co. is such a case. Monsanto and Du Pont were parties to a license agreement that contained an agreement to arbitrate any disputes arising out of the agreement in New York City. Monsanto demanded arbitration, asserting that Du Pont had improperly sublicensed rights to third parties, including Beck’s Superior Hybrids, which was located in Indiana. At Monsanto’s request, the tribunal issued a subpoena duces tecum to Beck’s. Beck’s refused to comply. Monsanto commenced an action in the Indiana superior court, seeking to compel compliance, and the Indiana court ordered Beck’s to comply with the subpoena. Beck’s appealed and won. Why?
Section 7 of the Federal Arbitration Act provides that arbitrators may issue subpoenas and that the District Court “for the district in which such arbitrators, or a majority of them, are sitting” can compel compliance with the subpoena. So under the statute, the District Court for the Southern District of New York was the proper court to enforce compliance with the arbitrator’s subpoena. But there was no question but that the SDNY would lack subject-matter jurisdiction over a petition to enforce the subpoena, because a party seeking to proceed under Section 7 of the FAA must show an independent basis for federal subject-matter jurisdiction, such as diversity of citizenship, and Monsanto could not do so here. Moreover, the SDNY would have lacked personal jurisdiction Thus the FAA creates a jurisdictional “gap”: the only court with authority to enforce a subpoena under the statute may lack jurisdiction over a petition to enforce the subpoena or over the person whose evidence the subpoena seeks to compel. But as the Indiana court noted, that is not Beck’s problem: “Monsanto agreed to arbitration, and it is the party chargeable with any negative results associated with that choice.”
Monsanto did make an interesting attempt to construe the statute in a novel way. It argued that one of the arbitrators would be “sitting” in Indiana for the purpose of presiding at the preliminary hearing at which the subpoena commanded Beck’s to appear and produce its documents. But leaving aside the fact that the statute points to the jurisdiction where a majority of the arbitrators are sitting, the agreement to arbitrate specified New York as the seat of the arbitration.
Parenthetically, the jurisdictional “gap” suggests yet another reason why, as I have argued, the judicial assistance statute should not be read to extend to foreign arbitral tribunals. It would be incongruous for parties to a foreign arbitration to have the right to take pretrial discovery anywhere in the United States under the statute when parties to a domestic arbitration face subject-matter and personal jurisdictional hurdles that sharply limit the enforceability of arbitrators’ subpoenas.