[00:00:02] Speaker 03:
All right, we will call our next case this morning.

[00:00:07] Speaker 03:
Case number 24-1438, Zynex Medical versus Coyote Stone.

[00:00:37] Speaker 03:
It looks like we've got our council here.

[00:00:41] Speaker 03:
All right, Mr. Rylander, you may proceed when you're ready.

[00:00:47] Speaker 00:
Yes, your honor.

[00:00:47] Speaker 00:
May it please the court.

[00:00:48] Speaker 00:
I'm Kurt Rylander on behalf of Coyote Stone LLC.

[00:00:52] Speaker 00:
I'd like to reserve two minutes of my time for rebuttal.

[00:00:56] Speaker 00:
Your honor, it is the position of Coyote Stone that the

[00:01:00] Speaker 00:
order of the magistrate in the district court should be reversed with instructions to dismiss the petition.

[00:01:07] Speaker 00:
There are a lot of meaty issues in this briefing in this case, but we think the most straightforward path reversal is that Zynex admitted that the targeted witness was Bob Town, and admitted Bob Town has not been served, and the magistrate seemed to agree with that.

[00:01:26] Speaker 00:
In section, in page two of the magistrate's order, he indicates that the 30B6 style October subpoena called for both Coyote Stone and Bob Town to appear with a corporate designate to produce documents and testify.

[00:01:40] Speaker 00:
And the magistrate at the last page said the parties agree that service has not been completed.

[00:01:47] Speaker 00:
Since there was never a dispute that Coyote Stone was served, that can only be referring to Bob Town.

[00:01:53] Speaker 00:
Thus, the magistrate and the parties all agree Bob Town was the target of witness and was never served, not served with the subpoena and not served with the complaint.

[00:02:03] Speaker 00:
The court has no personal jurisdiction over the witness that was intended by the subpoena.

[00:02:09] Speaker 00:
I can understand that Zynex may argue, well, we also intended Coyote Stone to be a witness.

[00:02:18] Speaker 00:
There's some problems with that, Your Honors.

[00:02:20] Speaker 00:
Section seven and rule 45,

[00:02:23] Speaker 00:
both contemplate calling a person, which can be a juristic entity possibly, to appear at an evidentiary hearing.

[00:02:29] Speaker 00:
Rule 45, however, says that person must be identified with particularity.

[00:02:35] Speaker 00:
when you say in your subpoena that it's directed to a person as well as a company, and then say that another person should testify, in this case they directed it to Bob Town and Coyote Stone, but then said Michael Ferbrota should testify.

[00:02:49] Speaker 03:
That seems to be a different argument that you had in your briefs about the ambiguity and such in the subpoena.

[00:02:56] Speaker 03:
But let me make sure I understand your argument about the lack of personal jurisdiction and its significance here over Bob Town.

[00:03:05] Speaker 03:
If he had not been named in the subpoena, if it had just been directed to Coyote Stone, you agree that Coyote Stone here, there is personal jurisdiction over Coyote Stone, right?

[00:03:16] Speaker 00:
No, Your Honors, because we believe that the combination of Section 7 and Rule 40.5 does not result in nationwide personal jurisdiction.

[00:03:26] Speaker 03:
Okay, so that would require us to endorse that argument, right?

[00:03:30] Speaker 00:
Yes, Your Honors.

[00:03:32] Speaker 03:
I understand.

[00:03:33] Speaker 00:
And to the extent the court wants me to address that, I can do that as well.

[00:03:36] Speaker 00:
Our argument on that is very straightforward.

[00:03:39] Speaker 00:
I am aware of the court's decision in the PA, which involved ERISA, and that is exactly the point, which is that when it's a subject matter conferring statute that provides for national service of process, such like ERISA or Civil Rico, that there's not really a problem with nationwide personal jurisdiction.

[00:03:57] Speaker 00:
Here, the FAA is not a subject matter conferring jurisdiction.

[00:04:02] Speaker 00:
It's here merely by diversity.

[00:04:04] Speaker 00:
And while in diversity cases,

[00:04:06] Speaker 00:
subpoenas all the time for nationwide services subpoenas.

[00:04:10] Speaker 00:
I certainly do it in patent litigation.

[00:04:12] Speaker 00:
That doesn't confer personal jurisdiction on those people.

[00:04:17] Speaker 00:
So we don't believe the combination of the FAA, which doesn't provide for personal jurisdiction, doesn't provide for subject matter jurisdiction.

[00:04:24] Speaker 00:
We don't believe somehow the combination of that with the 2013 amendments to Rule 45 creates nationwide personal jurisdiction.

[00:04:32] Speaker 03:
So you don't want us to follow the 11th Circuit's approach?

[00:04:37] Speaker 00:
No, Your Honor, I do not want you to follow it.

[00:04:38] Speaker 03:
So let me ask you, and certainly my colleagues may have more questions about this specific argument, but let me just ask you, if we were to reject your argument contra the 11th Circuit and instead follow the 11th Circuit's approach in managed care, what is left of your argument, your personal jurisdiction argument?

[00:04:58] Speaker 03:
So in other words, we don't follow the managed care approach.

[00:05:01] Speaker 03:
We recognize there was no personal jurisdiction over Bob Town, but there is personal jurisdiction over Coyote Stone.

[00:05:08] Speaker 03:
What happens next?

[00:05:09] Speaker 00:
That ends the personal jurisdiction argument, Your Honor, with the exception that we don't believe a Rule 30B6-style subpoena can be enforced for an evidentiary hearing.

[00:05:20] Speaker 03:
OK, so let me ask you a question about that.

[00:05:22] Speaker 03:
Why should we assume that this subpoena is

[00:05:27] Speaker 03:
some sort of a prohibited subpoena in the context of the FAA.

[00:05:33] Speaker 03:
It says it's for an arbitration hearing.

[00:05:37] Speaker 03:
It's directing the presentation of testimony by a witness and documents.

[00:05:44] Speaker 03:
It satisfies the presence requirement.

[00:05:46] Speaker 03:
The arbitrator is going to be there.

[00:05:49] Speaker 03:
So I guess I'm not understanding why we should construe this

[00:05:54] Speaker 03:
as some sort of a prohibited, you know, discovery, pre-trial discovery subpoena when it on its face contemplates otherwise?

[00:06:04] Speaker 00:
Well, Your Honors, I respectfully disagree that on its face it contemplates otherwise because on its face, it looks exactly like a Rule 30B6 notice.

[00:06:13] Speaker 00:
It calls at least both Bob Town and the company.

[00:06:16] Speaker 00:
Let's assume we excise Bob Town out.

[00:06:18] Speaker 00:
It just calls the company.

[00:06:20] Speaker 00:
It asks for the corporate designee to testify.

[00:06:23] Speaker 00:
well the only place in the federal rules so procedure that that exists is rule thirty six and i've used it frankly numerous times but you can't use it for a trial subpoena you can't use it for an evidentiary hearing it's only for pre-trial discovery and section seven of the f a does not allow for pre trial discovery of nonparties

[00:06:48] Speaker 01:
Council, can I ask you about going back to personal jurisdiction in Coyote Stone in particular?

[00:06:53] Speaker 01:
As I understand it, they were properly served Coyote Stone the complaint through the summons, right?

[00:07:00] Speaker 00:
That is correct, Your Honor.

[00:07:02] Speaker 01:
Okay, so why doesn't that confer personal jurisdiction over Coyote Stone?

[00:07:06] Speaker 00:
Because there's no evidence they've ever been in the state of Colorado.

[00:07:10] Speaker 00:
There's no evidence that the state of Colorado has any personal jurisdiction over Coyote Stone.

[00:07:15] Speaker 00:
They've been tagged with the service.

[00:07:17] Speaker 00:
I mean, just because you've been served with a complaint and summons doesn't mean that you can't challenge the personal jurisdiction because there's not minimum contacts.

[00:07:24] Speaker 00:
But certainly, if you haven't been served, there is definitely no personal jurisdiction.

[00:07:31] Speaker 01:
OK, so the Rule 45 argument about nationwide service as it relates to Coyote Stone is not necessarily applicable.

[00:07:37] Speaker 01:
What you argue with Coyote Stone has to do with minimum contacts.

[00:07:40] Speaker 00:
Well, what we argue, Your Honor, is you can't, is that you do have to have minimum contacts if there's no nationwide personal jurisdiction.

[00:07:48] Speaker 00:
That is correct, Your Honor.

[00:07:53] Speaker 00:
Your Honor, another issue that we have is, you know, I would address the rule 30B6.

[00:07:58] Speaker 00:
The only case we were able to find on the issue, I mean there's lots of cases that say you can't use rule 30B6 for purposes of a trial subpoena or an evidence or hearing.

[00:08:08] Speaker 00:
The only case directly on point, and we cited in our brief, we cited it to the magistrate as well, he apparently didn't read it,

[00:08:15] Speaker 00:
was a Southern District of New York trial court case.

[00:08:19] Speaker 00:
This issue was actually looked at by the judge in the Southern District of New York.

[00:08:23] Speaker 00:
And he said, no, you can't do a 30B6 style arbitration subpoena under section seven.

[00:08:30] Speaker 03:
Again, just going back to that, I mean, what is it about this subpoena that counsels, let's assume that a 30B6 style subpoena is a prohibited

[00:08:44] Speaker 03:
thing in this context.

[00:08:45] Speaker 03:
Let's just assume that is so.

[00:08:47] Speaker 03:
I'm not totally sure that's right, but let's just assume it is for purposes of the argument.

[00:08:52] Speaker 03:
What on the face of this subpoena should direct us to conclude that it is a pretrial subpoena?

[00:09:00] Speaker 03:
I mean, I pointed out some of the factors that don't favor your reading.

[00:09:07] Speaker 03:
And the most obvious one to me on its face is that it is calling for testimony and evidence at an arbitration hearing.

[00:09:15] Speaker 00:
And perhaps I apologize for my lack of clarity, Your Honor.

[00:09:19] Speaker 00:
I definitely believe they are trying to use this as a trial subpoena for the hearing.

[00:09:25] Speaker 00:
And our argument is that this is clearly a 30B6-style subpoena, which you cannot use under Rule 45 for a evidentiary hearing.

[00:09:34] Speaker 03:
So your position is, despite what it says, it's actually something else, right?

[00:09:40] Speaker 00:
Our position is that it is what it says.

[00:09:43] Speaker 00:
It's calling for a company's corporate designee to testify at an evidentiary hearing, and we're saying you can't do that under Rule 45.

[00:09:57] Speaker 00:
Now, another issue we brought up, Your Honors, and we found no case law on this at all, was Section 4.

[00:10:06] Speaker 00:
This is a case where there was a petition to compel arbitration,

[00:10:10] Speaker 00:
And that petition was granted, and that was granted by the District of Colorado.

[00:10:15] Speaker 00:
And under Section 4, the unambiguous language is that the hearing and proceeding shall be in the District of Colorado.

[00:10:23] Speaker 00:
The magistrate, and we pointed out that having a hearing in Vancouver violates Section 4.

[00:10:28] Speaker 03:
The magistrate... Can an arbitrator sit in more than one place?

[00:10:37] Speaker 00:
There's some open question on that, Your Honor.

[00:10:39] Speaker 00:
There seems to be a body of law that says the arbitrator is sitting wherever the arbitration is being, where the basis of the arbitration is being administered.

[00:10:47] Speaker 00:
That doesn't seem to rule out the idea that the arbitrator might have a hearing other than where he's normally sitting.

[00:10:55] Speaker 00:
But that lends to really crazy outcomes if you take into account issues in Rule 45.

[00:11:02] Speaker 03:
So there's one argument that you raised.

[00:11:04] Speaker 03:
I want you to help me understand it.

[00:11:06] Speaker 03:
It seems that one of the many arguments that you are advancing in support of reversal here is that this hearing was set to occur in front of the arbitrator in Vancouver.

[00:11:22] Speaker 03:
The arbitrator was sitting in Vancouver for purposes of this hearing.

[00:11:30] Speaker 03:
And so the court under section seven that had the authority to compel

[00:11:36] Speaker 03:
your attendance was not the District of Colorado, but was District Court in Washington.

[00:11:43] Speaker 03:
Am I understanding your argument correctly?

[00:11:45] Speaker 00:
You are understanding our argument correctly.

[00:11:47] Speaker 03:
Help me understand why that is so.

[00:11:52] Speaker 03:
And let me just add a couple of points.

[00:11:55] Speaker 03:
It seems that the facts here show there's one arbitrator, right?

[00:11:58] Speaker 03:
There's just one individual arbitrator here.

[00:12:02] Speaker 03:
And the seat of arbitration is the District of Colorado.

[00:12:05] Speaker 03:
That's where the Section 4 petition was granted, right?

[00:12:10] Speaker 00:
That is correct, Your Honor.

[00:12:12] Speaker 03:
And so we would have to, in order to endorse your argument, we would have to agree that an arbitrator can sit in more than one place.

[00:12:20] Speaker 03:
Isn't that right?

[00:12:24] Speaker 00:
Yes.

[00:12:25] Speaker 00:
I believe that is correct, Your Honor, but that raises a question.

[00:12:28] Speaker 00:
If the arbitrator is in Vancouver,

[00:12:32] Speaker 00:
having a hearing, is he not sitting there when he's doing it?

[00:12:35] Speaker 00:
This is an unexplained area of the Federal Arbitration Act.

[00:12:39] Speaker 00:
The whole issue about having multiple arbitration hearings when section four contemplates just one is really unclear.

[00:12:47] Speaker 00:
Is he sitting where he's holding a hearing?

[00:12:50] Speaker 03:
Is one of your arguments that it was the section seven petition was filed in the wrong court?

[00:13:00] Speaker 03:
Is that one of your arguments?

[00:13:02] Speaker 00:
Not exactly, Your Honor.

[00:13:09] Speaker 03:
Help me understand that.

[00:13:11] Speaker 00:
Our argument is that he could not do a hearing in Vancouver at all, because that would make him sitting in Vancouver, which would make the petition filed in Colorado to be incorrect.

[00:13:27] Speaker 03:
So your position as an arbitrator can't sit in more than one place.

[00:13:33] Speaker 00:
My position is if the position of Coyote-Stoney writers is that it's two part.

[00:13:38] Speaker 00:
First, in a section four controlled case, because it only applies when there's been a petition to compel the arbitration, in a section four compelled case, the arbitrary can only sit and only hold hearings in that district.

[00:13:52] Speaker 00:
So when it's a not a section four controlled case, because it doesn't have to be, you can use FAA section seven when section four is not invoked,

[00:13:59] Speaker 00:
In a non-section four case, the arbiter can sit in more than one location, and when it's in the other locations, it has to follow the rules there, which means that's where the enforcement has to be, and that's where a motion quash has to be.

[00:14:14] Speaker 01:
Council, can I ask you questions about your objections that you wanted to submit to the district court?

[00:14:21] Speaker 01:
And even if the district court was wrong, let's assume that they were that they had no authority to review your objections.

[00:14:28] Speaker 01:
It would seem they have discretion whether or not to review the objections or to kick it to the arbitrator.

[00:14:34] Speaker 01:
So, you know, must the district court exercise that discretion or why isn't it being able to submit objections to arbitrator sufficient?

[00:14:47] Speaker 00:
because we're using federal statute to enforce that subpoena's attendance.

[00:14:52] Speaker 00:
If it's a private arbitration, well then yes, the only person who gets to hear those objections is the arbitrator.

[00:14:57] Speaker 00:
But since you are now using federal law, using rule 45 to force someone to a hearing not of their choice in a fight that they're not a part of, then I believe in that case, there must be an avenue of judicial review.

[00:15:15] Speaker 00:
I do want to add one thing, Your Honor, before my time runs out, apparently my, is this my rebuttal time I'm going through?

[00:15:21] Speaker 00:
No, okay, good.

[00:15:23] Speaker 00:
I do want to say, this was not raised by Zynex, and we didn't specifically say it in our brief either, but we believe Coyote Stone is within the zone of interests to be protected by section four, or more specifically, the Federal Arbitration Act as a whole.

[00:15:37] Speaker 00:
We believe it should be interpreted as a whole.

[00:15:40] Speaker 00:
Section two creates,

[00:15:42] Speaker 00:
enforceability of agreements.

[00:15:44] Speaker 00:
Section four says you can petition to enforce the agreements and that's where the hearing has to be.

[00:15:48] Speaker 00:
Section five provides for appointment of the arbitrators for that hearing and section seven provides for getting witnesses to that hearing.

[00:15:56] Speaker 00:
So we believe if you read the Federal Arbitration Act as a whole that Coyote Stone clearly falls in with the zone of interest to be protected by the act.

[00:16:04] Speaker 03:
Is that in service of what?

[00:16:06] Speaker 03:
Responding to

[00:16:07] Speaker 03:
What the district court described as perhaps a standing problem.

[00:16:10] Speaker 00:
That is your right.

[00:16:11] Speaker 00:
I was puzzled.

[00:16:12] Speaker 00:
I was frankly puzzled your honor at the district course decision on that because I remember Lucas versus South Carolina Council, which came out when I was in law school.

[00:16:21] Speaker 00:
So I know the general standing.

[00:16:23] Speaker 00:
Doctrine fairly well and it's like this clearly applies to my client because This is definitely an injury and it's caused by this to hearing they don't want to go to so I then cast about of that Oh, maybe they're maybe he's suggesting without using the language that Coyote stone is not within the zone of interests of section four So I did want to address that if the court had was going to ask any questions about it Thank you, thank you This Clinton

[00:16:53] Speaker 02:
Good morning, and may it please the court.

[00:16:56] Speaker 02:
So I just wanted to address first the issue of Section 4 and Section 7 and how they interplay between them.

[00:17:05] Speaker 02:
So I think that the court should absolutely affirm the district court's ruling in that Section 4 and Section 7 have completely different purposes.

[00:17:16] Speaker 02:
And if you look at Section 4, you can see it from the first sentence.

[00:17:20] Speaker 02:
It says, a party aggrieved by the failure

[00:17:23] Speaker 02:
of another to arbitrate under a written agreement may petition for enforcement of that agreement.

[00:17:29] Speaker 02:
It's simply not at all related to the type of relief and the purpose of Section 7.

[00:17:35] Speaker 02:
If you keep going in Section 4-2, it discusses the court shall hear the parties.

[00:17:42] Speaker 02:
Those are the parties to the arbitration.

[00:17:45] Speaker 02:
And then it says that the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.

[00:17:53] Speaker 03:
There's nothing about the next sentence.

[00:17:56] Speaker 03:
The next sentence says the hearing and proceedings under such agreement shall be within the district in which the petition for an order directing such arbitration is filed.

[00:18:06] Speaker 03:
I'm struggling with how to read that sentence as not suggesting that here.

[00:18:14] Speaker 03:
the proceeding needed to be in or the hearing that the subpoena speaks to needed to be in the District of Colorado, which is where the arbitration was fought.

[00:18:26] Speaker 02:
Yes, I understand your question.

[00:18:28] Speaker 02:
So the arbitration is taking place in Colorado that it's in accordance with this section for the proceedings and the seat of the arbitrator is indeed in Colorado.

[00:18:42] Speaker 02:
But there's no reason that the arbitrator cannot have a portion of the hearing somewhere else, especially where the parties to the arbitration did agree to that.

[00:18:52] Speaker 02:
And there's case law that supports this idea.

[00:18:57] Speaker 02:
No court has found that the arbitrator is not allowed and the parties are not allowed to choose to hold a hearing somewhere else for purposes of obtaining this testimony under Section 7.

[00:19:09] Speaker 03:
Okay, so if I understand your position, it's that because the language of section four incorporates the party's agreement, and here, Zynax's arbitration protocols suggest that the arbitrator gets to decide where the hearing is held, right?

[00:19:29] Speaker 03:
Am I right so far?

[00:19:32] Speaker 02:
Yes, that's correct.

[00:19:33] Speaker 03:
So this sentence incorporates your agreement, right?

[00:19:36] Speaker 03:
So if the arbitrator in this case

[00:19:38] Speaker 03:
decides with the agreement of the parties authorized by section four to have a hearing in Vancouver.

[00:19:46] Speaker 03:
Is he sitting in Vancouver for purposes of the hearing that you're having there?

[00:19:55] Speaker 02:
The arbitrator, the seat of the arbitration remains the same.

[00:19:58] Speaker 02:
It remains Colorado.

[00:19:59] Speaker 02:
Why?

[00:20:00] Speaker 02:
Right.

[00:20:01] Speaker 02:
So no, I would not say that for purposes of section seven, the arbitrator is sitting

[00:20:06] Speaker 02:
in Washington.

[00:20:07] Speaker 02:
The arbitrator is simply exercising his authority as the presider over the arbitration to conduct an evidentiary hearing for purposes of obtaining his testimony, which is exactly what section seven contemplates.

[00:20:23] Speaker 02:
It requires an in-person hearing.

[00:20:25] Speaker 02:
We set an in-person hearing.

[00:20:27] Speaker 02:
It requires the parties to appear before the arbitrator in a sort of an evidentiary rather than a discovery setting.

[00:20:35] Speaker 02:
So that's exactly what happened here.

[00:20:39] Speaker 03:
So then help me understand the language in section seven that speaks to which court is the one that has the authority to order a party to come to

[00:20:54] Speaker 03:
to compel a party to comply with the subpoena.

[00:20:56] Speaker 03:
It says, upon petition, the United States District Court for the district in which such arbitrators or majority of them are sitting may compel.

[00:21:05] Speaker 03:
So your position is that notwithstanding the fact that there is a hearing in Vancouver in which the arbitrator is present, the arbitrator is still sitting

[00:21:21] Speaker 03:
in the District of Colorado.

[00:21:22] Speaker 03:
My question is, did you file this in the wrong court?

[00:21:27] Speaker 02:
I understand your question.

[00:21:28] Speaker 02:
We did not file this in the wrong court.

[00:21:30] Speaker 02:
The Stolt Nielsen case, I think, is very instructive on this point.

[00:21:33] Speaker 02:
We cited that in our brief.

[00:21:35] Speaker 02:
The arbitration is being conducted in Colorado.

[00:21:42] Speaker 02:
It is simply a hearing that is taking place in Washington, and that's under Section 7.

[00:21:47] Speaker 02:
There's nothing in Section 7 that prohibits

[00:21:50] Speaker 02:
the arbitrator from holding a hearing in another state because the arbitration is still taking place here in Colorado.

[00:22:00] Speaker 01:
What is happening in Colorado?

[00:22:01] Speaker 01:
If Mr. Ferbota is in Vancouver and the evidence you want from Coyote Stone is in Vancouver and Zynex is going to show up in Vancouver, then what's happening in Colorado?

[00:22:12] Speaker 02:
The arbitration is happening in Colorado.

[00:22:14] Speaker 02:
We have a Colorado-based

[00:22:15] Speaker 01:
But what does that mean exactly?

[00:22:17] Speaker 01:
If all the parties are in Vancouver and you're all getting together for this evident taking of evidence and you're saying, well, it's happening in Colorado, but what is happening in Colorado?

[00:22:27] Speaker 02:
Well, actually, the parties to the arbitration, the respondents that are not in Colorado, they are in other states.

[00:22:36] Speaker 02:
And the arbitration agreement says that Colorado is where the arbitration takes place and in fact is where the arbitration is taking place.

[00:22:44] Speaker 02:
Um, the arbitrators is here, you know, they are elsewhere, but to the extent that we do eventually have our, um, final merits hearing, uh, it will be here in Colorado.

[00:22:56] Speaker 01:
I mean, most likely the agreement to move that the hearing to Vancouver was limited to one hearing in which the Coyote stone evidence was to be presented.

[00:23:03] Speaker 01:
And that's it.

[00:23:05] Speaker 02:
Absolutely.

[00:23:05] Speaker 02:
That is, that is correct.

[00:23:06] Speaker 02:
And the only case law on this point supports that the propriety of, of doing that.

[00:23:12] Speaker 02:
And I don't think there's anything that suggests that you cannot do that.

[00:23:18] Speaker 02:
Section four is directed to something else entirely.

[00:23:22] Speaker 01:
So Mr. Rylender said the clearest path to reversal is that Bob Town was never served.

[00:23:27] Speaker 01:
So there's no personal jurisdiction conferred.

[00:23:30] Speaker 01:
So what's your response to that?

[00:23:34] Speaker 02:
My response to that is that there is unquestionably personal jurisdiction against Coyote Stone.

[00:23:39] Speaker 02:
Bob Town is not a party to the petition.

[00:23:42] Speaker 02:
Um, so the council is referring to the underlying service of the subpoena and the district court has discretion.

[00:23:51] Speaker 02:
It is an abusive discretion standard, whether to enforce the subpoena or not.

[00:23:56] Speaker 02:
Um, there's, there's no, the jurisdictional analysis does not relate to Bob town.

[00:24:02] Speaker 02:
The, the, this case that was before the district court is between Coyote stone and Xanax.

[00:24:07] Speaker 02:
So I think it's a non sequitur, um, council,

[00:24:12] Speaker 02:
concedes that service was proper against Coyote Stone.

[00:24:16] Speaker 01:
So, and you alluded to this in your response brief.

[00:24:19] Speaker 01:
So, personal jurisdiction was conferred by the service of the petition through the summons, not through a Rule 45 subpoena service.

[00:24:29] Speaker 02:
I'm sorry, can you repeat that?

[00:24:31] Speaker 02:
There was a little background that I saw.

[00:24:32] Speaker 01:
Yes, and you alluded to this in your response brief, but I think I just want to confirm, I heard what I think the argument is you're making, which is there's no, the personal jurisdiction over Coyote Stone was properly conferred when Coyote Stone was served a copy of the petition via the summons once that was filed.

[00:24:52] Speaker 01:
It has nothing to do with the service of the subpoena under Rule 45.

[00:24:56] Speaker 01:
Is that the argument you're making?

[00:24:58] Speaker 02:
That's correct, because Rule 45 confers nationwide service of process as appropriate.

[00:25:05] Speaker 02:
It was incorporated into Section 7, and Coyote Stone was served.

[00:25:09] Speaker 02:
There's no dispute about that.

[00:25:13] Speaker 02:
Coyote Stone was served with this petition and also was served with the subpoena.

[00:25:18] Speaker 02:
There's no dispute about those two points.

[00:25:20] Speaker 02:
And if there's not another question on that, I wanted to just relatedly

[00:25:28] Speaker 02:
The idea that this subpoena is a 30B6, it is not.

[00:25:32] Speaker 02:
These are not topics.

[00:25:34] Speaker 02:
It is not seeking a deposition.

[00:25:37] Speaker 02:
In a 30B6, as we all know, you're looking for someone to be prepared to testify about topics.

[00:25:43] Speaker 02:
The exhibit A of the subpoena is about documents.

[00:25:46] Speaker 02:
And it says specifically it's a request for documents.

[00:25:50] Speaker 02:
It is not a request under 30B6.

[00:25:53] Speaker 02:
Well, it requests a corporate designee.

[00:25:56] Speaker 02:
It requests

[00:25:58] Speaker 02:
It requests a corporate representative as a witness to come to the hearing and bring documents.

[00:26:04] Speaker 02:
Because obviously, it is service.

[00:26:08] Speaker 02:
It is a coyote stone, which is an entity that we seek to get the testimony of.

[00:26:15] Speaker 02:
There's case law cited in our brief that that is appropriate when you need a corporation to testify that you would be seeking a corporate representative.

[00:26:27] Speaker 02:
because a corporation obviously cannot speak other than through a representative.

[00:26:30] Speaker 02:
So that's what we did there.

[00:26:36] Speaker 03:
Council, you mentioned the Stolt-Nielsen case as supportive of your position.

[00:26:42] Speaker 03:
In that case, was the arbitration proceeding in a state different from where this evidentiary hearing was with the third party was compelled?

[00:26:59] Speaker 02:
So yes, because the proposition in that case was that they held that the arbitrator can decide to hold a hearing somewhere other than the seat of the arbitration.

[00:27:14] Speaker 02:
So that was the same issue that we're dealing with here today.

[00:27:22] Speaker 03:
And when was the issuing court, the court that was compelling compliance, located in the seat of arbitration or at the site of the hearing with the third party?

[00:27:36] Speaker 02:
The issuing court was at the seat of the arbitration, which was appropriate because that's what Section 7 requires.

[00:27:44] Speaker 02:
There's also this case Tarone, which has been cited in the briefs, which was the flip of that.

[00:27:51] Speaker 02:
the parties were seeking to have a hearing outside of the seat of the arbitration and filed the petition in the state that was not at the seat.

[00:28:02] Speaker 02:
And the court there said, you filed it in the wrong place.

[00:28:04] Speaker 02:
You should have filed it at the seat of the arbitration.

[00:28:06] Speaker 02:
So again, supportive of the idea that there's a seat of an arbitration, but there is also the ability to hold a hearing outside of the seat of the arbitration.

[00:28:18] Speaker 02:
There really cannot be a dispute that the arbitrator

[00:28:21] Speaker 02:
is sitting here in this Colorado arbitration, and that the purpose of this hearing is to obtain that testimony and that evidence, and the parties had agreed to that.

[00:28:32] Speaker 02:
And that was within the arbitration.

[00:28:34] Speaker 03:
I think that's what I'm struggling a little bit with, is that in order to satisfy the requirements of the FAA and Rule 45,

[00:28:43] Speaker 03:
You have to have the arbitrator present.

[00:28:46] Speaker 03:
You can't just do a pre-trial 30B6.

[00:28:53] Speaker 03:
You can't do that under the FAA.

[00:28:55] Speaker 03:
So you're complying with the presence requirement.

[00:28:57] Speaker 03:
On the face of the subpoena, the arbitrator is going to be there.

[00:29:00] Speaker 03:
And what that seems to suggest is that he's sitting both in

[00:29:04] Speaker 03:
Vancouver for purposes of this hearing, but he's also sitting in Colorado where the seat of arbitration is for purposes of the arbitration.

[00:29:13] Speaker 03:
And I'm just not sure that I've seen case law that speaks to that issue, that, you know, can an arbitrator sit in two places?

[00:29:24] Speaker 02:
Absolutely.

[00:29:24] Speaker 02:
I mean, Stolt Nielsen does speak to that issue as we've discussed.

[00:29:28] Speaker 02:
And also in Hay Group, this is a third circuit case.

[00:29:32] Speaker 02:
the court held that, you know, that you can have a subpoena where the non-party is called to appear in the physical presence of the arbitrator.

[00:29:44] Speaker 02:
So because you're allowed to do that, it can be, you know, anywhere, you know, really anywhere.

[00:29:52] Speaker 03:
It doesn't change.

[00:29:53] Speaker 03:
That's what I'm struggling with is I think you have satisfied the presence requirement.

[00:29:57] Speaker 03:
I mean, it feels to me based on what the statute requires,

[00:30:01] Speaker 03:
this subpoena complies with that.

[00:30:05] Speaker 03:
My concern is which court is the court that is authorized under section seven to compel attendance.

[00:30:16] Speaker 03:
And that, I think that question depends on where the arbitrator is sitting.

[00:30:22] Speaker 02:
I agree with you.

[00:30:23] Speaker 02:
And I would ask the court to find that the arbitrator is sitting here in Colorado and follow the reasoning found in Stolt Nielsen.

[00:30:30] Speaker 01:
I mean, maybe I'll try this another way.

[00:30:32] Speaker 01:
Would it be possible under the FAA for ZyNEX to have filed a section four petition compelling arbitration in Colorado, but then filed a section seven petition to enforce the subpoena in the Western District of Washington?

[00:30:48] Speaker 01:
Because that's where this hearing was going to be.

[00:30:53] Speaker 02:
I don't believe that ZyNEX could have properly filed a section seven petition in the

[00:30:58] Speaker 02:
District of Washington because the arbitrator is not sitting in the District of Washington.

[00:31:07] Speaker 02:
For the court's consideration, a party does not have to file a Section 4 motion to compel.

[00:31:17] Speaker 02:
The parties can just agree to proceed with the arbitration.

[00:31:20] Speaker 02:
It so happens that we did have to file a motion to compel here.

[00:31:25] Speaker 02:
If we hadn't, section four, again, this just shows that it's really not at issue.

[00:31:30] Speaker 02:
We are simply proceeding under section seven, which has to be read on its plain language.

[00:31:37] Speaker 02:
And so I don't think that reading a conflict into the FAA is the right move for the court to make.

[00:31:45] Speaker 02:
I would suggest that it should not do that.

[00:31:47] Speaker 02:
You should read the statute as a whole.

[00:31:50] Speaker 02:
And so to read in a conflict, I think, would be problematic.

[00:31:55] Speaker 02:
I just also wanted to quickly.

[00:31:58] Speaker 02:
Well, it looks like I am out of time, but we would just rest on the remainder of the briefing and ask the court to affirm.

[00:32:04] Speaker 03:
Thank you counsel.

[00:32:06] Speaker 03:
Thank you.

[00:32:07] Speaker 03:
I think Mr. Rylander, you may be out of out of time.

[00:32:09] Speaker 01:
That's correct.

[00:32:14] Speaker 03:
Okay.

[00:32:15] Speaker 03:
Thank you both for your helpful arguments.

[00:32:16] Speaker 03:
The case will be submitted.

[00:32:18] Speaker 03:
Thank you.

[00:32:20] Speaker 03:
Colleagues, should we keep going or do you like to take a break or keep going?

[00:32:24] Speaker 03:
Keep going.

[00:32:25] Speaker 03:
Okay.

[00:32:25] Speaker 03:
All right.

[00:32:27] Speaker 03:
Okay.