Petition for Writ of Certiorari — Quest International Monitor Service, Inc., Petitioner v. Rockwell Collins, Inc.

No. _________

In the

Supreme Court of the United States

______________

QUEST INTERNATIONAL MONITOR SERVICE, INC.,

Petitioner,

vs.

ROCKWELL COLLINS, INC.

Respondent.

______________

On Petition for a Writ of Certiorari to the

United States Court Of Appeals

For The Ninth Circuit

_____________

PETITION FOR WRIT OF CERTIORARI

_____________

Mohammed K. Ghods

Counsel of Record

Lori L. Speak

LEX OPUS

2100 N. Broadway, Suite 210

Santa Ana, CA 92706

(714) 558-8580

mghods@lexopusfirm.com

Counsel for Petitioner

August 31, 2021

i

QUESTIONS PRESENTED

This Court has recognized that while the Federal

Arbitration Act (FAA) reflects a federal policy of

favoring arbitration, “there is no federal policy

favoring arbitration under a certain set of procedural

rules.” Volt Info. Scis., Inc. v. Bd. of Trustees of

Leland Stanford Junior Univ., 489 U.S. 468, 476

(1989). In this case, Petitioner Quest International

Monitor Service, Inc. relied on the forum state’s 100day limitation period when it timely filed in Los

Angeles Superior Court a petition to vacate an

arbitration award. After removing the petition to

federal court on diversity grounds, Respondent filed

a motion to dismiss, contending that the petition to

vacate was time-barred under the FAA’s shorter

three-month deadline. 9 U.S.C. § 12. The district

court agreed, granting the motion to dismiss, denying

the petition to vacate, and confirming the arbitration

award.

The Ninth Circuit affirmed the district court’s

judgment based solely on timeliness, agreeing that

Quest’s petition to vacate was untimely under the

FAA’s shorter period. Given the prevalence of

arbitrations and petitions related thereto, litigants

throughout the country deserve to have certainty and

fair advance notice as to which limitation period

applies in state courts to avoid death of the case by

removal. Thus, the questions presented in this case

are:

1) Is the FAA’s three-month limitation period for

vacatur of an arbitration award a substantive

provision of the FAA that must be applied to

petitions to vacate filed in state court if the FAA

substantively governs?

ii

2) If the FAA’s limitation period does not supplant

the state limitation period in state court, may a

petition to vacate timely filed under the forum

state’s procedural rules be rendered untimely by

removal to federal court?

iii

PARTIES TO THE PROCEEDING

Petitioner Quest International Monitor Service,

Inc. was plaintiff in the District Court and appellant

in the Court of Appeals.

Respondent Rockwell Collins, Inc. was defendant

in the District Court and appellee in the Court of

Appeals.

iv

CORPORATE DISCLOSURE STATEMENT

Petitioner Quest International Monitor Service,

Inc. is a privately owned California corporation. No

publicly held corporation owns 10% or more of its

stock.

v

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ............................ .iii

CORPORATE DISCLOSURE STATEMENT.............. iv

TABLE OF AUTHORITIES ....................................... viii

PETITION FOR WRIT OF CERTIORARI ................... 1

OPINIONS BELOW ...................................................... 1

BASIS FOR JURISDICTION

IN THIS COURT ...................................................... 1

STATUTORY PROVISIONS AT ISSUE ...................... 2

STATEMENT OF THE CASE ...................................... 2

I. The Ninth Circuit Extends the

Reach of the FAA’s Procedural Rules

to State Court. .................................................... 2

II. Brief Factual and Procedural Background. ....... 6

REASONS WHY CERTIORARI

IS WARRANTED ..................................................... 9

I. Certiorari Is Necessary to Clarify that

Section 12’s Three-month Limitation

Period for Vacatur Is a Procedural

Provision of the FAA that Does Not

Apply to Petitions to Vacate Filed in

State Court, Even for Petitions Governed

Substantively by the FAA, or to Timely

Petitions Removed to Federal Court, Unless

the State’s Limitation Period Defeats the

FAA’s Pro-arbitration Policy. ..............................9

vi

A. Federal Policy Favors Arbitration but Not

Under a Particular Set of Rules. .................... 9

B. The Ninth Circuit’s Application of the

Three-month Limitation Period is Wrong. ... 12

C. This Court Has Yet to Hold that Section 12

of the FAA Is a Procedural Provision

Inapplicable in State Court or to Removed

Petitions. ...................................................... 16

II. Certiorari Is Necessary to Ensure Uniformity

Among State and Federal Courts on This

Important Issue. ................................................ 17

CONCLUSION ............................................................ 23

APPENDIX

Appendix A

Memorandum Opinion, United States

Court of Appeals for the Ninth Circuit,

Quest Int’l Monitor Serv., Inc. v. Rockwell

Collins, Inc., 845 F. App’x 591, 592

(9th Cir. 2021)

(Apr. 20, 2021)...................................................App-1

Appendix B

Order (1) Granting Motion to Confirm

Arbitration Awards (Doc. 9) and (2) Denying

Petition to Vacate Arbitration Award, Quest

International Monitor Service, Inc. v.

Rockwell Collins, Inc., Case No.

vii

8:19-cv-02471-JLS-KES

(Mar. 10, 2020)...................................................App-4

Appendix C

Judgment, United District Court,

Central District of California, Quest

International Monitor Service, Inc. v.

Rockwell Collins, Inc., Case No.

8:19-cv-02471-JLS-KES

(Mar. 26, 2020).................................................App-13

Appendix D

Relevant Statutory

Provisions.........................................................App-15

9 U.S.C. § 12.....................................................App-15

Cal. Civ. Proc. Code § 1288 .……....................App-15

viii

TABLE OF AUTHORITIES

CASES

Am. Exp. Co. v. Italian Colors Rest.,

570 U.S. 228 (2013)............................................... 9

Atlantic Painting & Contracting Inc. v.

Nashville Bridge Co.,

670 S.W.2d 841 (Ky 1984) ............................ 12, 20

Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440 (2006)............................................. 10

Bunge Corp. v. Perryville Feed & Produce, Inc.,

685 S.W.2d 837 (Mo. 1985) ................................. 21

Butner v. Neustadter,

324 F.2d 783 (9th Cir. 1963)............................... 13

Cable Connection, Inc. v. DIRECTV, Inc.,

44 Cal.4th 1334 (Cal. 2008) ................................ 18

Cronus Invs., Inc. v. Concierge Servs.

35 Cal.4th 376 (Cal. 2005) ............................ 17, 18

DIRECTV, Inc. v. Imburgia,

577 U.S. 47 (2015)............................................... 11

Eurocapital Group Ltd. v.

Goldman Sachs & Co.,

17 S.W.3d 426 (Tex. App. 1999) ......................... 22

Felder v. Casey,

487 U.S. 131 (1988)....................................... 11, 15

ix

Howlett By & Through Howlett v. Rose,

496 U.S. 356 (1990)............................................. 15

Johnson v. Gruma Corp.,

614 F.3d 1062 (9th Cir. 2010)......................... 8, 14

Judge v. Nijjar Realty, Inc.,

232 Cal.App.4th 619 (Cal. Ct. App. 2014).......... 18

Los Angeles Unified Sch. Dist. v.

Safety Nat’l Cas. Corp.,

13 Cal.App.5th 471 (Cal. Ct. App. 2017)............ 18

Manson v. Dain Bosworth Inc.,

623 N.W.2d 610 (Minn. Ct. App. 1998) .............. 21

Moscatiello v. Hilliard,

595 Pa. 596 (Pa. 2007) .................................. 11, 20

Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp.,

460 U.S. 1 (1983)................................................. 11

NewSpin Sports, LLC v. Arrow Elecs., Inc.,

910 F.3d 293 (7th Cir. 2018)............................... 11

Nitro-Lift Techs., L.L.C. v. Howard,

568 U.S. 17 (2012)........................................... 5, 10

Oltman v. Holland Am. Line, Inc.,

538 F.3d 1271 (9th Cir. 2008)............................. 13

Preston v. Ferrer,

552 U.S. 346 (2008)............................................. 10

x

San Diego Cty. Dist. Council of Carpenters

of United Bhd. of Carpenters & Joiners

of Am. v. Cory,

685 F.2d 1137 (9th Cir. 1982)............................. 19

Siegel v. Prudential Ins. Co. of Am.,

67 Cal.App.4th 1270, 1277

(Cal. Ct. App. 1998) ...................................... 11, 18

Simmons Co. v. Deutsche Fin. Servs. Corp.,

243 Ga.App. 85 (Ga. Ct. App. 2000) ............. 14, 21

Southland Corp. v. Keating,

465 U.S. 1 (1984)................................................. 10

St. Fleur v. WPI Cable Systems/Mutron,

879 N.E.2d 27 (Mass. 2008)................................ 21

Swissmex-Rapid S.A. de C.V. v. SP Sys., LLC,

212 Cal.App.4th 539 (Cal. Ct. App. 2012).......... 18

Volt Info. Scis., Inc. v. Bd. of Trustees of

Leland Stanford Junior Univ.,

489 U.S. 468 (1989)...................................... i, 9, 10

STATUTES

9 U.S.C. § 1 ................................................................. 2

9 U.S.C. § 2 ............................................................. 4, 8

9 U.S.C. § 12 ..................................................... passim

28 U.S.C. § 1332 ......................................................... 7

28 U.S.C. § 1254(1)..................................................... 2

Cal. Civ. Proc. Code §§ 1280–1294.4 ..................... 2, 8

Cal. Civ. Proc. Code § 1288 .................................. 2, 19

1

PETITION FOR WRIT OF CERTIORARI

Quest International Monitor Service, Inc.

petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals

affirming the district court’s dismissal of Quest’s

petition to vacate as untimely.

OPINIONS BELOW

The Ninth Circuit’s memorandum opinion

affirming the judgment may be found at Quest Int’l

Monitor Serv., Inc. v. Rockwell Collins, Inc., 845 F.

App’x 591 (9th Cir. 2021) and is reproduced in the

Appendix hereto at App-1.

The district court’s order denying Quest

International Monitor Service, Inc.’s petition to

vacate and granting Respondent Rockwell Collins,

Inc.’s motion to dismiss and motion to confirm is

reproduced at App-4. The district court’s judgment is

reproduced at App-13.

BASIS FOR JURISDICTION IN THIS COURT

The Ninth Circuit entered its memorandum

opinion on April 20, 2021, dismissing Petitioner’s

appeal as untimely. On March 19, 2020, this Court

issued an order extending the deadline to file a

petition for writ of certiorari to 150 days due to the

public health concerns surrounding Covid-19.

Because the underlying judgment entered by the

Ninth Circuit was filed before July 18, 2021, the 150day deadline applies. Quest now files its timely

2

petition for certiorari. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AT ISSUE

Relevant portions of the Federal Arbitration Act,

9 U.S.C. § 1 et seq., and the California Arbitration

Act, Cal. Civ. Proc. Code § 1280 et seq., are

reproduced beginning at App-15.

STATEMENT OF THE CASE

I.

The Ninth Circuit Extends the Reach of the

FAA’s Procedural Rules to State Court.

This case concerns the scope of the Federal

Arbitration Act (FAA), specifically its three-month

limitation period for vacatur of an arbitration award

set forth in 9 U.S.C. § 12. The expansive and

improper application of section 12 resulted in the

dismissal of a timely-filed petition to vacate.

Quest International Monitor Service, Inc. (Quest)

undisputedly filed in California state court under the

California Arbitration Act (CAA), a timely petition to

vacate an arbitration award. See Cal Civ. Proc. Code

§ 1280 et seq.; § 1288 (setting forth the 100-day

limitation period for petitions to vacate in California).

Nonetheless, the Ninth Circuit held that the petition,

removed to federal court based on diversity

jurisdiction, was untimely under the FAA’s threemonth deadline. The Ninth Circuit’s decision,

however, improperly infringes on California’s right to

establish its own procedural rules and leaves

3

litigants subject to conflicting legal authorities on

when vacatur must be sought.

The present dispute raises two significant issues.

The first is whether the FAA’s three-month

limitation period applies at all to vacatur proceedings

commenced in state court for awards governed

substantively by the FAA. In other words, is the

FAA’s three-month limitation period a substantive

element of the FAA applicable in both state and

federal court. Second, if the FAA’s three-month

limitation period does not apply in state court

proceedings,

can

that

three-month

period

subsequently be applied upon removal to federal

court to dismiss as untimely an otherwise timelyfiled state court petition to vacate, essentially leading

to death by removal.

At the outset, it is important to gain a clear

understanding of the procedural posture of this case:

1) Quest originally filed its petition to vacate in

state court. App-5. Respondent Rockwell

Collins, Inc. (Rockwell) never challenged

jurisdiction, venue, or timeliness of the

petition in state court.

2) Rockwell elected to remove the petition to

federal court based solely on diversity

jurisdiction. App-5.

This is not a case in which the original civil

complaint was filed in federal court. This is not a case

in which a state court complaint was removed to

federal court prior to the issuance of an arbitration

award. This is not a case in which a party was

4

compelled by a federal court to participate in

arbitration proceedings from which an arbitration

award subsequently issued.

In this case, the parties arbitrated their

contractual dispute without any prior litigation.

Under the terms of the parties’ agreement, judgment

could be entered on the award in any court with

jurisdiction. Quest elected to file its petition to vacate

in California state court, the state in which the

contract was signed, the state in which Rockwell

maintained an office, Quest’s home state, and the

state in which Quest conducted business for

Rockwell.

It is also important to be clear about what Quest

is challenging on this Petition:

1) Quest is not challenging that the FAA’s

substantive provisions applied to the

arbitration proceeding or judicial review of the

award. The FAA substantively governed

because the contract at issue evinced a

transaction involving interstate commerce. 9

U.S.C. § 2.

2) Quest is not challenging that had the petition

been filed in federal court, the FAA’s threemonth deadline for vacatur would have

applied. In other words, Quest is not arguing

that the CAA would have governed if Quest

had initially filed its petition in federal court.

3) Quest is not challenging that the parties’

agreement required Iowa substantive law to be

5

applied to the underlying claims adjudicated

in the arbitration proceeding.

What Quest challenges is the Ninth Circuit’s

erroneous and expansive conclusion that the FAA’s

three-month limitation period governed the

timeliness of Quest’s petition to vacate at all. The

federal courts in this case made two errors: (1) the

Ninth Circuit treated section 12’s three-month

limitation period as a substantive element of the FAA

applicable in both state and federal court; and (2) the

district court, after removal from state court, applied

the FAA’s three-month period retroactively to

dismiss a timely-filed complaint, thereby sanctioning

the petition’s death by removal. Neither approach

comports with the purpose of the FAA, California

courts’ understanding of the FAA’s application in

state court, or this Court’s prior holdings.

This Court has recognized that it is state courts,

not federal courts, that are most frequently called

upon to apply the FAA. “It is a matter of great

importance, therefore, that state supreme courts

adhere to a correct interpretation of the legislation.”

Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17, 17–

18 (2012). Similarly, it is a matter of great

importance that federal courts properly review

arbitration-related matters removed from state court

and set forth the proper reach of the FAA as it relates

to state court proceedings.

This case provides an opportunity for the Court to

address fundamental legal principles of great import

to a broad class of litigants and courts alike: statutes

of limitation and the relationship between state and

6

federal law. Review by this Court is necessary to

ensure that federal courts properly limit the

application of FAA procedural rules to federal courts

and properly restrict the application of the FAA’s

limitation period upon removal from state court.

II. Brief Factual and Procedural Background

Quest is an Irvine, California corporation that

provided engineering services for a decade on a

project-by-project basis for the Tustin, California

facility of Rockwell. App-5, 8. In July 2011, Rockwell

approached Quest with a new project to provide

assistance for an urgent problem regarding

constantly-failing parts of audio and video inflight

systems in certain commercial passenger airplanes.

App-5. The parties signed a form Enterprise

Commercial Product Support Agreement (the “PSA”),

in Orange County, California in March 2012. App-5.

A contractual dispute arose between the parties

resulting in an arbitration proceeding. App-5. The

arbitrators issued the final award in favor of

Rockwell and against Quest, awarding Rockwell the

attorneys’ fees incurred in arbitration. App-5. Quest

paid the arbitration award in full following the

arbitration proceedings, with a reservation of rights.

The PSA stated that judgment upon the award

could be “entered in any court having jurisdiction

thereof.” Accordingly, on November 27, 2019, Quest

filed a complaint for declaratory relief along with a

7

petition to vacate the award in Orange County

Superior Court. 1 App-5.

On December 20, 2019, Rockwell removed the

state action to federal court based solely on diversity.

App-5. The district court had jurisdiction over the

parties’ claims under 28 U.S.C. § 1332.

On December 27, 2019, Rockwell filed a motion to

dismiss Quest’s complaint, including the petition to

vacate, and to confirm the arbitration award. App-7.

After taking the matters under submission without a

hearing, the district court granted Rockwell’s

motions and denied Quest’s petition to vacate on

March 10, 2020. App-4 – App-12. It issued a judgment

in favor of Rockwell and against Quest on March 26,

2020. App-13 – App-14.

In granting Rockwell’s motion to dismiss, the

district court stated that the request for vacatur was

time barred, having been filed 95 days, rather than

three months, after the arbitration award was issued.

App-9. Without deciding whether the FAA’s threemonth deadline applied in state court, where the

petition to vacate was originally filed, the district

court concluded that “[f]or better or worse, the case is

Because Quest’s complaint included both a claim for

declaratory relief and a petition to vacate and both were held

barred by the FAA’s three-month limitation period (App-3), a

reversal by this Court based on timeliness would apply both to

the petition and the claim for declaratory relief. Because the

merits of the claims are not at issue, however, Quest focuses

solely on the petition to vacate, which is the grounds for the

application of the three-month limitation period in the first

instance.

1

8

now in this Court, a federal court, meaning that both

substantive and procedural FAA rules apply.” App-9,

n. 3.

Quest timely appealed, and the Ninth Circuit

panel issued its memorandum opinion on April 20,

2021, affirming the district court’s judgment solely on

the ground that Quest’s pleading was untimely. App1 – App-3.

The district court did not err in holding that

Quest’s petition to vacate the arbitration award

was time-barred under 9 U.S.C. § 12. The

Enterprise Commercial Product Support

Agreement is a contract “evidencing a

transaction involving commerce” for purposes of

9 U.S.C. § 2, and therefore “there is a strong

default presumption that the FAA, not state

law, supplies the rules for arbitration.” Johnson

v. Gruma Corp., 614 F.3d 1062, 1066 (9th Cir.

2010) (cleaned up). Quest did not overcome this

presumption because the contract does not

“evidence a clear intent to incorporate state law

rules for arbitration.” Id. (cleaned up).

Therefore, the California arbitration rules, Cal.

Civ. Proc. Code §§ 1280–1294.4, are not

applicable here. “[W]here the FAA’s rules

control arbitration proceedings, a reviewing

court must also apply the FAA standard for

vacatur,” Johnson, 614 F.3d at 1067, including

the three-month limitation period for filing a

petition for vacatur.

App.-2.

9

REASONS WHY CERTIORARI IS WARRANTED

I. Certiorari Is Necessary to Clarify that

Section 12’s Three-month Limitation

Period for Vacatur Is a Procedural

Provision of the FAA that Does Not

Apply to Petitions to Vacate Filed in

State Court, Even for Petitions Governed

Substantively by the FAA, or to Timely

Petitions Removed to Federal Court, Unless

the State’s Limitation Period Defeats the

FAA’s Pro-arbitration Policy.

This Court should grant Quest’s petition because

certiorari is necessary to clarify that section 12’s

three-month limitation period for vacatur of an

arbitration award is a procedural element of the

FAA. Accordingly, that three-month period does not

apply to petitions to vacate filed in state court,

regardless of whether the arbitration and related

judicial review are substantively governed by the

FAA, unless the state’s limitation period defeats the

purposes of the FAA.

A. Federal Policy Favors Arbitration but

Not Under a Particular Set of Rules.

Congress enacted the FAA in response to

purported

widespread

judicial

hostility

to

arbitration, thereby seeking to ensure that private

agreements to arbitrate were enforced according to

their terms. Am. Exp. Co. v. Italian Colors Rest., 570

U.S. 228, 232 (2013); Volt Info. Scis., Inc. v. Bd. of

Trustees of Leland Stanford Junior Univ., 489 U.S.

10

468, 478, (1989). While the FAA reflects the federal

policy of favoring arbitration, “[t]here is no federal

policy favoring arbitration under a certain set of

procedural rules ….” Volt Info. Scis., Inc., 489 U.S. at

476.

This Court has recognized (1) that the FAA

contains substantive and procedural provisions; and

(2) that while the FAA’s substantive provisions apply

in both state and federal court, its procedural

provisions may apply only in federal court. See

Preston v. Ferrer, 552 U.S. 346, 349 (2008) (“The Act,

which rests on Congress’ authority under the

Commerce Clause, supplies not simply a procedural

framework applicable in federal courts; it also calls

for the application, in state as well as federal courts,

of federal substantive law regarding arbitration.”

(citing Southland Corp. v. Keating, 465 U.S. 1, 16

(1984))); Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S.

17, 20 (2012) (“It is well settled that ‘the substantive

law the Act created [is] applicable in state and federal

courts.’” (quoting Southland Corp., 465 U.S. at 12,

and citing Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440, 446 (2006))); Southland Corp. v.

Keating, 465 U.S. 1, 16 (1984) (“In holding that the

Arbitration Act preempts a state law that withdraws

the power to enforce arbitration agreements, we do

not hold that §§ 3 and 4 of the Arbitration Act apply

to proceedings in state courts. Section 4, for example,

provides that the Federal Rules of Civil Procedure

apply in proceedings to compel arbitration. The

Federal Rules do not apply in such state court

proceedings.”).

11

In the end, “[n]o one disputes the general and

unassailable proposition … that States may establish

the rules of procedure governing litigation in their

own courts.” Felder v. Casey, 487 U.S. 131, 138

(1988). Simply stated, “as to procedural matters, the

law of the forum controls.” NewSpin Sports, LLC v.

Arrow Elecs., Inc., 910 F.3d 293, 300 (7th Cir. 2018).

Nonetheless, this control is not without limit, and

the FAA does indeed demonstrate a liberal federal

policy

favoring

arbitration

agreements,

notwithstanding any state substantive or procedural

policies to the contrary. Moses H. Cone Mem’l Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). This

means that the federal pro-arbitration policy cannot

be thwarted by state legislation or public policy. State

laws, rules, or procedures that would thwart the

execution of the FAA’s purposes would be preempted.

Conversely, and importantly, where a state’s

procedural rules do not thwart this federal policy,

they are not preempted by the FAA. See DIRECTV,

Inc. v. Imburgia, 577 U.S. 47, 51 (2015) (a state court

rule or statute is not preempted unless it “stands as

an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress

embodied in the Federal Arbitration Act”).

In light of the above principles, section 12’s threemonth limitation period for vacatur of an arbitration

award is simply a procedural mechanism applicable

in federal court alone. California courts and other

state courts have so held. See, e.g., Siegel v.

Prudential Ins. Co., 67 Cal.App.4th 1270 (Cal. Ct.

App. 1998); Moscatiello v. Hilliard, 595 Pa. 596 (Pa.

12

2007); Atlantic Painting & Contracting Inc. v.

Nashville Bridge Co. 670 S. W. 2d 841 (Ky 1984). And

unless a state court’s limitation period for vacatur

would prevent the execution of the FAA’s proarbitration policy, the forum state’s procedural rules

should govern.

B. The Ninth Circuit’s Application of the

Three-month Limitation Period Is

Wrong.

Despite the fact that the FAA does not favor

arbitration conducted pursuant to a particular set of

procedures, the federal courts in this case erred in

two significant ways: (1) the district court

erroneously applied the FAA limitation period to a

petition timely filed in state court but subsequently

removed to federal court; and (2) the Ninth Circuit

erroneously treated section 12 as a substantive

provision of the FAA, applicable even in state court

proceedings.

First, the district court erred by misapplying the

FAA limitation period to a removed petition that was

timely filed in state court. The court’s error is

apparent in its order:

Quest cites a California Court of Appeal case for

the proposition that, while “[t]he FAA’s

substantive provisions are applicable in state as

well as federal court, . . . the FAA’s procedural

provisions apply only to proceedings in federal

court,” Judge v. Nijjar Realty, Inc., 232

Cal.App.4th 619, 630 (2014) (alteration in

13

original). (See Opp’n at 16.) And, because this case

was originally filed in state court, Quest argues,

the Court must not apply Section 12 here. (See id.

at 15–16.) For better or worse, the case is now in

this Court, a federal court, meaning that both

substantive and procedural FAA rules apply.

App-9, n.3. The district court’s erroneous approach,

however, leaves litigants vulnerable to death by

removal, where an opposing party could render a

timely-filed petition untimely by removing it to

federal court based solely on diversity jurisdiction.

Under the district court’s logic, all litigants, including

those pursuing judicial review in state court, would

be required to comply with the FAA’s three-month

limitation period on the chance that the opposing

party would remove the petition. Such a result would

essentially gut the applicability of a forum state’s

procedural rules. The district court’s analysis is

contrary to both state and federal law, including the

law that “[t]he federal court takes the case as it finds

it on removal….” Butner v. Neustadter, 324 F.2d 783,

785 (9th Cir. 1963). See also Oltman v. Holland Am.

Line, Inc., 538 F.3d 1271, 1280 (9th Cir. 2008)

(recognizing that had the defendant removed the case

to federal court rather than moved to dismiss it, the

timeliness of the plaintiff’s claims would have been

preserved).

Second, the Ninth Circuit, while affirming the

district court’s conclusion that the petition was

untimely, did not specifically address the posture of

the case: the petition had been timely-filed in state

court. Instead, the Ninth Circuit concluded that

14

“[w]here the FAA’s rules control arbitration

proceedings, a reviewing court must also apply the

FAA standard for vacatur …, including the threemonth limitation period for filing a petition for

vacatur.” App-2, citing Johnson v. Gruma Corp., 614

F.3d 1062, 1067 (9th Cir. 2010). By so holding, the

Ninth Circuit appears to have concluded that

regardless of whether the petition was filed in state

or federal court, if the FAA governed the arbitration

proceedings, all of its provisions for vacatur applied

unless the parties’ agreement explicitly and clearly

invoked the CAA. App-2.

While this may be true for a petition filed in

federal court, it is not true for a petition filed in state

court. The CAA procedural provisions apply in

California. Regardless of the controlling federal or

state substantive law, the forum state’s procedural

rules apply in that forum. A Georgia court of appeal

explained it well:

The arbitration provision at issue indicates that

Illinois law governs to the extent it is not

inconsistent with the FAA. This does not mean,

however, that the FAA or Illinois law governs the

procedures, including appellate procedures, which

apply in Georgia, where the suit was filed. Under

the rule of lex fori, procedural or remedial

questions are governed by the law of Georgia.

Even where a claim is governed by substantive

federal law, a state may apply its own procedural

rules in its own courts, if those procedures do not

defeat the objectives of the federal law.”

15

Simmons Co. v. Deutsche Fin. Servs. Corp., 243

Ga.App. 85, 85-86, 88-89 (Ga. Ct. App. 2000).

Without any explanation or justification, the

Ninth Circuit lumped section 12’s three-month

limitation period in with the other substantive

provisions of the FAA. Such an approach contravenes

the purpose of the FAA, California’s right to establish

its own procedural rules, and this Court’s recognition

that federal procedures apply in federal courts.

Both erroneous approaches practically mandate

that litigants who choose a state court as the forum

to seek vacatur will be required nonetheless to

comply with the FAA’s three-month limitation period

rather than the forum state’s limitation period. This

is a direct threat to the “general and unassailable

proposition … that States may establish the rules of

procedure governing litigation in their own courts.”

Felder v. Casey, 487 U.S. at 138. See also Howlett By

& Through Howlett v. Rose, 496 U.S. 356, 372 (1990)

(“[S]tates thus have great latitude to establish the

structure and jurisdiction of their own courts.

(Citations). In addition, States may apply their own

neutral procedural rules to federal claims, unless

those rules are pre-empted by federal law.”).

Furthermore, the erroneous interpretation by the

federal courts leaves litigants like Quest caught

between two conflicting interpretations of the law.

Because Quest’s petition to vacate was originally

and properly filed in state court, California

procedural rules applied because California was the

chosen forum, regardless of whether federal

substantive law or another state’s substantive law

16

controlled. Thus, the federal courts in this case,

including the Ninth Circuit panel, erroneously

applied a procedural provision of the FAA, namely

section 12’s three-month limitation period for

vacatur, to a removed state court petition. This was

wrong.

C. This Court Has Yet to Hold that Section

12 of the FAA Is a Procedural

Provision Inapplicable in State Court

or to Removed Petitions.

While the district court’s “death by removal”

approach and the Ninth’s Circuit’s usurpation of a

state court’s right to establish its own procedures are

not justified by this Court’s precedent or the purposes

of the FAA, this Court has never expressly stated

that section 12’s limitation period is a procedural

provision of the FAA limited to federal court. Given

the importance of limitation periods to litigants and

courts alike, the Court should grant certiorari in this

case to establish definitively that section 12’s threemonth deadline is procedural and inapplicable in

state court or to timely-filed state court petitions that

are removed, even when the FAA substantively

governs the arbitration proceedings.

This case offers the right vehicle to address this

important question. The question is clearly

presented. The district court and the Ninth Circuit

both addressed the timeliness issue, and the Ninth

Circuit’s sole ground for affirmation was the failure

to comply with the FAA’s limitation period.

Furthermore, additional percolation on this issue is

17

unnecessary. The FAA’s limitation period has long

existed, and courts have repeatedly addressed its

application.

Finally, the Ninth Circuit panel decision here is

irreconcilable with the purpose of the FAA, the right

of state courts to control their own proceedings, and

this Court’s recognition that there is not a federal

policy under the FAA favoring arbitration according

to particular procedures. The Ninth Circuit decision

is wrong and opens the door to serious overreach by

federal courts and confusion for litigants, making

intervention by this Court necessary.

II. Certiorari Is Necessary to Ensure

Uniformity Among State and Federal

Courts on This Important Issue.

Courts have reached different conclusions on

whether the FAA’s procedural provisions, including

the FAA’s limitation period for motions to vacate,

control in state court. Therefore, it is crucial for this

Court to resolve these conflicting decisions on this

important issue. Litigants, like Quest, rely on the

procedures of the forum state to ensure that their

claims will be heard on the merits.

In this case, Quest specifically relied on California

law, the forum which Quest appropriately selected to

review the arbitration award. California courts have

long held that the procedural provisions of the FAA,

including the limitation period for petitions to vacate

set forth in section 12, are procedural and do not

apply in state court regardless of whether the

18

arbitration is governed by the FAA. See Cable

Connection, Inc. v. DIRECTV, Inc., 44 Cal.4th 1334,

1352 (Cal. 2008) (“the FAA’s procedural provisions

are not controlling, and the determinative question is

whether CAA procedures conflict with the FAA policy

favoring

the

enforcement

of

arbitration

agreements”); Siegel v. Prudential Ins. Co. of Am., 67

Cal.App.4th 1270, 1277 (Cal. Ct. App. 1998)

(describing section 12 of the FAA as prescribing the

procedure whereby a motion to vacate is presented to

a court for decision in federal court); Swissmex-Rapid

S.A. de C.V. v. SP Sys., LLC, 212 Cal.App.4th 539,

546 (Cal. Ct. App. 2012), as modified (Jan. 4, 2013)

(“the FAA’s procedural provisions apply only to

proceedings in federal court,” specifically recognizing

that portions of the FAA, e.g., § 9, do not apply in

state court proceedings); Judge v. Nijjar Realty, Inc.,

232 Cal.App.4th 619, 632 (Cal. Ct. App. 2014)

(“federal procedural rules apply only where state

procedural rules conflict with or defeat the rights

Congress granted in the FAA); Los Angeles Unified

Sch. Dist. v. Safety Nat’l Cas. Corp., 13 Cal.App.5th

471, 482 (Cal. Ct. App. 2017) (“where, as here, the

parties do not ‘expressly designate that any

arbitration proceeding should move forward under

the FAA’s procedural provisions rather than under

state procedural law’[citation], California procedures

necessarily apply.” (quoting Cronus Invs., Inc. v.

Concierge Servs. 35 Cal. 4th 376, 394 (Cal. 2005))

(emphasis in original)).

Relying on this law, Quest timely filed its petition

in California state court in accordance with the

forum’s procedural rules. The parties’ agreement (the

19

PSA) does not mention the Federal Arbitration Act

let alone require that the federal procedural

provisions apply. Because nothing in the PSA

required a different set of procedural rules to apply

and because the state’s procedural rules do not defeat

the purposes of the FAA, the applicable statute of

limitations for a petition to vacate an arbitration

award in California is 100 days. Cal. Civ. Proc. Code

§ 1288.

In this case, the arbitration panel’s final award

was executed on August 22, 2019. App-5. The state

court action, filed on November 27, 2019, was within

100 days of the final award. App-9. It can hardly be

said that an additional 10 days, the difference

between the FAA’s limitation period and California’s,

thwarts the federal policy favoring arbitration. See

e.g., San Diego Cty. Dist. Council of Carpenters of

United Bhd. of Carpenters & Joiners of Am. v. Cory,

685 F.2d 1137, 1142 (9th Cir. 1982) (finding no

convincing reason why the three-month FAA

limitation period would serve national labor policy

better than the 100-day period provided under

California law because only ten days separate the two

limitation periods and no policy would have been

thwarted by allowing the appellant the benefit of the

ten extra days).

20

Several state courts have similarly concluded that

the FAA’s procedural provisions, including section

12, do not apply in state court: 2

• Pennsylvania: Moscatiello v. Hilliard, 595 Pa.

596, 600, 603-04 (Pa. 2007) (“Does the Federal

Arbitration Act’s (FAA’s) procedural provision

which allows for a three-month time frame

within which to challenge an arbitration

award preempt the state procedural rule

which sets the time limit at thirty days? … The

federal policy favoring arbitration, set forth in

the FAA, is limited to Congress’s intent to

make arbitration agreements enforceable. The

FAA does not preempt the procedural rules

governing arbitration in state courts, as that is

beyond its reach. Thus, we hold there is no

preemption.”).

• Kentucky: Atlantic Painting & Contracting

Inc. v. Nashville Bridge Co., 670 S.W.2d 841,

846-47 (Ky 1984) (“[T]here is nothing in the

federal Arbitration Act preempting state

jurisdiction of the contract action filed by

Atlantic/Buckeye and nothing in the Act

remotely suggesting that the ‘motion to vacate’

procedure, including the three months time

limitation set up for federal proceedings, has

any application at all to such state action. The

federal

Arbitration

Act

covers

both

2 This is a non-exhaustive list of state cases. It is intended to be

a sufficient showing of the need for resolution of the issue by

this Court.

21

substantive law and a procedure for federal

courts to follow where a party to arbitration

seeks to enforce or vacate an arbitration award

in federal court. The procedural aspects are

confined to federal cases.”).

• Georgia: Simmons Co. v. Deutsche Fin. Servs.

Corp., 243 Ga.App. 85, 85-86, 88-89 (Ga. Ct.

App. 2000) (“It follows that procedural rules

established by a state for the arbitration

process that do not undermine the purposes

and objectives of the FAA are not preempted.”)

• Minnesota: Manson v. Dain Bosworth Inc.,

623 N.W.2d 610, 615 (Minn. Ct. App. 1998)

(“because Minnesota’s personal service

requirements are procedural, the district

court did not err by applying Minnesota’s

requirements instead of the corresponding

FAA provision,” noting that the “Supreme

Court has not held that federal procedural

rules apply to proceedings in state court, even

when the FAA preempts a substantive state

law.”).

• Massachusetts: St. Fleur v. WPI Cable

Systems/Mutron, 879 N.E.2d 27, 33 (Mass.

2008) ([“[b]ecause the procedures in 9 U.S.C.

§ 4 do not apply to State courts, a State court

may apply its own law”].)

Other state courts, however, have applied or at

least suggested that the FAA’s procedural provisions

do apply in state court.

22

• Missouri: Bunge Corp. v. Perryville Feed &

Produce, Inc., 685 S.W.2d 837, 839–40 (Mo.

1985) (en banc) (when the Federal Act applies

to a dispute, the state court “is obliged to apply

federal law, and may not apply state law,

substantive or procedural, [that] is in

derogation of federal law.”).

• Texas: Eurocapital Group Ltd. v. Goldman

Sachs & Co., 17 S.W.3d 426, 431 (Tex. App.

1999) (“When the very statute that creates a

right of action incorporates an express

limitation on the time within which the suit

can be brought, the statute of limitation is

considered substantive. Furthermore, we view

FAA sections 10 and 12 together as part of an

enforcement scheme intended to promote the

federal policy favoring arbitration when the

underlying contract concerns interstate

commerce. … We hold that the three-month

limitation of the FAA applies under the facts of

this case.”)

Therefore, because establishing the correct

limitations period is essential to litigants and courts

alike, review by this Court is necessary to allow the

Court to reconcile divergent state court rulings and

clearly establish the nature of section 12’s limitation

period. As noted above, additional percolation on

this issue is unnecessary. Courts have addressed

this issue over the course of decades. Litigants must

have advance notice of the limitation period for

vacatur of an arbitration award governed by the

23

FAA. This Court, therefore, should grant the

petition and resolve this important question.

CONCLUSION

For the foregoing reasons, this Court should

grant Quest’s petition for certiorari.

Respectfully submitted,

August 31, 2021

Mohammed K. Ghods

Counsel of Record

Lori L. Speak

LEX OPUS

2100 N. Broadway, Suite 210

Santa Ana, CA 92706

(714) 558-8580

mghods@lexopusfirm.com

Counsel for Petitioner