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AMGEN INC. v. KIDNEY CTR. OF DELAWARE CTY.

March 22, 1995

AMGEN INC., Plaintiff,
v.
KIDNEY CENTER OF DELAWARE COUNTY, LTD., Defendant.



The opinion of the court was delivered by: ROBERT W. GETTLEMAN

 Plaintiff Amgen Inc. and Ortho Pharmaceutical Corp. have been involved in arbitration proceedings in Chicago since 1989. The Honorable Frank J. McGarr, former chief judge of this court, has acted as arbitrator throughout those proceedings. There have been two extended trials, and a third trial is scheduled to commence in May 1995.

 KCDC again refused to comply, and on September 8, 1994, Amgen filed a motion in the United States District Court for the Eastern District of Pennsylvania (the district in which KCDC is located and where the deposition was to take place) to compel compliance. KCDC opposed the motion on several grounds, including that Amgen had petitioned the wrong court for relief. The court determined that pursuant to Section VII of the FAA, Amgen was required to file its petition for relief in the court in the district in which the arbitrator is located and, therefore, transferred the action to this court.

 Amgen has once again moved to compel production. KCDC has opposed, arguing that under the FAA the arbitrator has no authority to subpoena persons who are located outside of the district in which he sits or beyond 100 miles of the site of the arbitration. For the reasons set forth below, the court grants Amgen's motion to compel compliance with the arbitrator's subpoena.

 DISCUSSION

 Section VII of the FAA, 9 U.S.C. § 7, provides in part:

 
The arbitrator selected either as prescribed in this title or otherwise, or a majority of them, may summon in writing any person to attend before them or any of them as a witness 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. The fees for such attendance shall be the same as the fees for witnesses before masters of the United States courts. Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before the court; . . . .

 While the statute appears to allow an arbitrator to summon a third person only to testify at trial, as opposed to a pretrial discovery deposition, courts have held (and KCDC has not disputed) that implicit in the power to compel testimony and documents for purpose of a hearing is the lessor power to compel such testimony and documents for purposes prior to hearing. Meadows Indemnity Co., Ltd. v. Nutmeg Insurance Co., 157 F.R.D. 42 (M.D. Tenn. 1994) (citing Stanton v. Paine Webber Jackson & Curtis, 685 F. Supp. 1241 (S.D. Fla. 1988)).

 Nor has KCDC argued that it is not subject to a summons *fn1" because it is not a party to the arbitration, for the statute is specific that any person (not just parties) may be so summoned. See, e.g., Meadows, 157 F.R.D. at 43. What KCDC does argue, despite the "any person" language, is that there is a territorial limitation to the arbitrator's power to summon any person before him.

 In contrast, Amgen argues that "any person" means just what it says, and relies upon that language in arguing that this court should determine that Judge McGarr's subpoena is enforceable and compel KCDC to produce the documents and attend the deposition. According to Amgen, the plain language of the statute is clear: "any person" may be summoned. The statute, according to Amgen, clearly contains no territorial limits on the scope of an arbitrator's authority to summon third parties to appear and provide evidence at arbitration or in pretrial discovery. *fn2" Amgen maintains that any territorial limitation would have to be implied, which would be improper given the clarity and the plain wording of the statute. See Estate of Cowser v. Commissioner of Internal Revenue, 736 F.2d 1168, 1171 (7th Cir. 1984).

 In response, KCDC argues that the subpoena issued by Judge McGarr is void ab initio because he lacked power to issue it. Specifically, KCDC argues that an arbitrator's subpoena power reaches only as far as the subpoena power of the district court in which the arbitration is pending. Because a federal district court's subpoena power encompasses only the district in which the court sits or extends 100 miles from the courthouse, Fed. R. Civ. P. 45, KCDC argues that an arbitrator may compel only the attendance of witnesses (and the attendant production of documents) found within the district in which the arbitration is being conducted, or within 100 miles of the site of the arbitration proceeding. To support this argument, KCDC cites Commercial Solvents Corp. v. Louisiana Liquid Fertilizer Co., 20 F.R.D. 359, 362-63 (S.D. N.Y. 1957).

 Commercial Solvents, however, did not hold that arbitrators could not compel the attendance of witnesses who are not within the district or within 100 miles of the place of the hearing; it merely suggested that "perhaps" they could not. Id. at 362-63. The holding in Commercial Solvents was that for matters of procedure relating to hearings before arbitrators, the court refers not to the Federal Rules of Civil Procedure, but to the rules pursuant to which the parties had agreed to arbitrate. Id. In the instant case, however, the parties have agreed to arbitrate pursuant to the Federal Rules of Civil Procedure and, therefore, Commercial Solvents is of little guidance.

 In this court's view, the issue is not whether the arbitrator has the power to issue the subpoena in question, for the statute is specific in stating that the arbitrator may summon any person. There is no territorial limitation on that ability. ...


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