from the United States District Court for the Eastern
District of Louisiana
HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
grant Intervenor Plaintiff-Appellees' Motion for Panel
Rehearing and deny the Motion For Rehearing En Banc. We
withdraw the prior opinion, 870 F.3d 370 (5th Cir. 2017), and
substitute the following.
case is a dispute between two creditors, each of which
attached the same pig iron owned by America Metals Trading
L.L.P. ("AMT"). Plaintiff-Appellant Daewoo
International Corp. ("Daewoo") sued AMT in the
Eastern District of Louisiana, seeking an order compelling
AMT to arbitrate and an attachment of the pig iron. Daewoo
invoked both maritime attachment and the Louisiana
non-resident attachment statute, which allows attachments in
aid of any "action for a money judgment." La. Code
Civ. Proc. art. 3542. Citing both types of attachment, the
district court granted Daewoo its attachment. Following
Daewoo's attachment, Intervenor-Appellee Thyssenkrupp
Mannex GMBH ("TKM") attached the same pig iron in
Louisiana state court. TKM then intervened in the federal
suit, arguing that Daewoo's attachment should be vacated
because (1) maritime jurisdiction was improper and (2)
Louisiana non-resident attachment was inapplicable.
district court agreed with TKM and vacated Daewoo's
attachment. Specifically, the district court found that
because Daewoo's underlying suit sought to compel
arbitration, it was not an "action for a money
judgment" and therefore Daewoo could not receive a
non-resident attachment writ. Daewoo appeals only the
district court's conclusion that its Louisiana
non-resident attachment writ was invalid. We affirm on
slightly different grounds.
is a South Korean trading company. In May 2012, Daewoo
entered into a series of contracts with AMT for the purchase
of pig iron, to be delivered in New Orleans. The sale
contracts contained arbitration clauses. Although Daewoo made
payments under the contracts, AMT never shipped the pig iron.
TKM is a German company. Between June 2010 and February 2011,
TKM entered into six contracts to purchase pig iron from AMT.
AMT never delivered. In response to the breach of contract,
TKM and AMT negotiated a settlement, which required AMT to
make quarterly payments to TKM. AMT did not pay.
December 14, 2012, Daewoo filed suit in the Eastern District
of Louisiana, seeking attachment of AMT's pig iron on
board the M/V Clipper Kasashio, and asserting maritime
jurisdiction. The district court issued the attachment. On
December 21, Daewoo amended its complaint to seek a writ of
attachment under the Louisiana non-resident attachment
statute. The writ was granted. On December 22, the U.S.
Marshals Service served Daewoo's writ on the cargo, which
was then anchored in Kenner Bend.
December 28, 2012, TKM filed suit in Jefferson Parish state
court seeking a writ of attachment over the same pig iron
that Daewoo attached on December 22. TKM's state court
writ of attachment was served on the cargo on December 29,
2012. TKM then moved to intervene in Daewoo's federal
suit. TKM sought a federal writ of attachment over the pig
iron, which was granted and served on the cargo on January
same day, all of the parties moved in federal court to sell
the pig iron. The court approved the sale. The parties agreed
that the proceeds of the sale would serve as substitute res,
subject to TKM's jurisdictional attack on the federal
9, 2016, TKM moved to vacate Daewoo's
attachment. The district court agreed with TKM and
vacated Daewoo's writ on August 4, 2016. With
Daewoo's federal writ vacated, the first valid remaining
writ was TKM's state court writ. Accordingly, the
district court ordered that the proceeds from the pig-iron
sale be transferred to the Jefferson Parish state court. On
August 10, Daewoo moved to stay the district court's
order, arguing that "[i]n the event that Daewoo's
appeal is successful it would be difficult to retrieve the
funds from the state court, assuming the state court has not
already dispersed the funds, and would create serious issues
of federal-state comity." The district court denied the
stay request because it was filed after the district court
had sent the money to the Jefferson Parish state court.
district court found federal subject matter jurisdiction
under the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the "Convention"). We
federal court to have jurisdiction under the Convention two
requirements must be met: (1) there must be an arbitration
agreement or award that falls under the Convention, and (2)
the dispute must relate to that arbitration agreement. These
requirements flow from the text of two sections of the
Convention. The explicit jurisdictional provision is Section
203, which gives federal courts jurisdiction over all
"action[s] or proceeding[s] falling under the
Convention." 9 U.S.C. § 203. "An arbitration
agreement or arbitral award arising out of a legal
relationship, whether contractual or not, which is considered
as commercial, including a transaction, contract, or
agreement described in section 2 of this title, falls under
the Convention." 9 U.S.C. § 202. Accordingly, the
first step for determining jurisdiction is deciding whether
the "arbitration agreement or award . . . falls under
the Convention." Id.
next step, derived from Section 203, is to ask whether the
"action or proceeding"-as opposed to the
arbitration agreement or award-falls under the Convention.
The Convention's removal statute offers guidance on what
"falling under" means because "[g]enerally,
the removal jurisdiction of the federal district courts
extends to cases over which they have original
jurisdiction." Francisco v. Stolt Achievement
MT, 293 F.3d 270, 272 (5th Cir. 2002). Section 205 of
the Convention allows for removal whenever "the subject
matter of an action or proceeding pending in a State court
relates to an arbitration agreement or award falling under
the Convention." 9 U.S.C. § 205. We have read
"relates to" to mean "has some connection, has
some relation, [or] has some reference" to. Acosta
v. Master Maint. & Constr. Inc., 452 F.3d 373,
378-79 (5th Cir. 2006). And reading "falling under"
to mean "relates to" makes sense grammatically.
"Fall" means "to come within the limits,
scope, or jurisdiction of something."
Merriam-Webster's Collegiate Dictionary 418 (10th ed.
2002). Accordingly, the second step of the jurisdictional
question is asking whether the "action or
proceeding" "relates to" a covered arbitration
agreement or award. See Fred Parks, Inc. v. Total
Compagnie, 981 F.2d 1255, 1992 WL 386999, at *1-2 (5th
Cir. 1992) (unpublished) (treating the question of original
and removal jurisdiction under the Convention as identical).
two-step jurisdictional inquiry is consistent with case law
interpreting the Convention. See, e.g., BP Expl.
Libya Ltd. v. ExxonMobil Libya Ltd., 689 F.3d 481, 487
& n.4 (5th Cir. 2012) (finding jurisdiction where there
was a covered arbitration agreement and the suit sought
appointment of arbitrators); Borden, Inc. v. Meiji Milk
Prods. Co., 919 F.2d 822, 826 (2d Cir. 1990) (holding
that jurisdiction over preliminary injunction in aid of
covered arbitration was proper because the remedy sought did
not try to "bypass arbitration"); Sunkyong
Eng'g & Const. Co. v. Born, Inc., 149 F.3d 1174,
1998 WL 413537, at *5 (5th Cir. 1998) (unpublished)
("The FAA grants the United States district courts
original federal question jurisdiction over arbitral awards
and agreements to arbitrate that fall within the
Convention."); Venconsul N.V. v. Tim Int'l.
N.V., 03Civ.5387(LTS)(MHD), 2003 WL 21804833, at *3
(S.D.N.Y. Aug. 6, 2003) ("Borden has been
interpreted as recognizing a court's power to entertain
requests for provisional remedies in aid of arbitration even
where the request for remedies does not accompany a motion to
compel arbitration or to confirm an award.").
jurisdictional requirements are met here. First, Daewoo's
arbitration agreements with AMT are covered by the
Convention. For an arbitration agreement to be covered by the
Convention, four requirements must be met: (1) there must be
an agreement in writing to arbitrate the dispute; (2) the
agreement must provide for arbitration in the territory of a
Convention signatory; (3) the agreement to arbitrate must
arise out of a commercial legal relationship; and (4) at
least one party to the agreement must not be an American
citizen. See Freudensprung v. Offshore Tech. Servs.,
Inc., 379 F.3d 327, 339 (5th Cir. 2004);
Sunkyong, 149 F.3d 1174, 1998 WL 413537, at *5;
Sedco, Inc. v. Petroleos Mexicanos Mexican Nat'l Oil
Co. (Pemex), 767 F.2d 1140, 1144-45 (5th Cir. 1985). All
four requirements are met here:
• There is an agreement in writing to arbitrate Daewoo
and AMT's dispute.
• That agreement provides for arbitration in New York,
and the United States is a ...