USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 95-1495

MENORAH INSURANCE COMPANY, LTD.,

Plaintiff-Appellee,

v.

INX REINSURANCE CORPORATION,

Defendant-Appellant.

____________________

No. 95-1497

MENORAH INSURANCE COMPANY, LTD.,

Plaintiff-Appellant,

v.

INX REINSURANCE CORPORATION

Defendant-Appellee.

_______________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

____________________

Before

Lynch, Circuit Judge,

_____________
Campbell, Senior Circuit Judge,
____________________
Watson,* Senior Judge.
_____________

____________________

Luis A. Melendez-Albizu,
_________________________

Jaime Sifre Rodriguez,

_______________________

and Sanch
_____

Betances & Sifre, were on brief for Menorah Insurance Company, Ltd.
________________
Juan H. Saavedra Castro
__________________________

was

on

brief

for

INX

Reinsura

Corporation.

____________________

December 26, 1995

____________________

_________________
*Of

the

United

designation.

States

Court of

International

Trade,

sitting

-2-

LYNCH,
LYNCH,

Circuit
Judge.
Circuit
Judge.
_______________

After

unsuccessfully

attempting to invoke arbitration under international business

contracts,

Menorah Insurance

default judgment in an

Corporation

and then

Puerto Rican court.

obtained an

$812,907

Israeli court against INX Reinsurance

sought to

After waiting

having an exequatur judgment

the action to the

Company

enforce the

judgment in

a year, and on the eve of

entered against it, INX removed

U.S. District Court for Puerto

Rico under

the Convention on the

Arbitral

(1994).1

Awards,

The

Recognition and Enforcement of Foreign

implemented

federal

arbitration and

court

remanded.

in 9

U.S.C.

found

that

We affirm

201 et
__

INX

had

because INX

seq.
____

waived

has both

explicitly and implicitly waived arbitration.

Under

Menorah,

an

seven

Israeli

corporation, agreed

reinsurance

company,

and

INX,

that "all disputes"

be arbitrated and should be

than

treaties

between

them,

Puerto

Rican

between them would

settled "in an equitable

in a strictly legal manner."2

rather

The locus of arbitration

____________________

1.
330

The Convention was opened for signature on June 10, 1958,

U.N.T.S. 38,

(West Supp. 1995).

and is

reprinted in

9 U.S.C.A.

201 n.

2.

The

arbitration

clause

presented

by

INX

as

being

representative provides that:

All disputes which

may arise between the

two contracting parties with reference to

the Interpretation or the carrying out of
this

Agreement

originating
connected

or

therefrom
with

the

to
or
same,

any
in
and

matter
any

way

whether

-33

was

to be

Tel Aviv, Israel.

Each

side was

to appoint an

arbitrator and

should the two arbitrators

disagree, then an

"Umpire," previously designated by the two arbitrators, would

decide.

There

was a

default provision

of sorts:

"In the

event of either party failing to appoint an umpire within two

months after

the

arbitration has

question

in dispute,

been supplied [sic]

then

arbitrators and/or umpire shall

for

the

time

being

of

the

in

either

such

for under

case

the

be appointed by the chairman

Israeli

Fire

Insurance

Association."

Menorah made a claim to INX for over $750,000 under

the reinsurance treaties,

to which INX replied

that it owed

no more than $178,000 and intimated that fraud accounted

the

$500,000 difference.

After

for

unsuccessful negotiations,

Menorah,

on July

would seek

and

1, 1992,

informed INX

arbitration, asked

by letter

INX to assent

that it

to arbitration

appoint its arbitrator, said if INX failed to appoint an

____________________

arising before or
of

after the

notice under this

entitled
than a

[sic]

in

termination

agreement shall be
an equitable

rather

strictly legal manner and in such

cases the parties agree to submit

decision
by

the

to the

of arbitrator, one to be chosen

Company

Reinsurer

and

and

the

in

other

the

disagreement between these

by the

event

of

two, then

an

Umpire, who shall have been chosen by the

said

two

arbitrators previous

entering

upon

the

to their

reference,

arbitrators

and/or

umpire

shall

managers

chief

officials

of

or

the
be
fire

Insurance and/or reinsurance companies.

-44

arbitrator, Menorah would ask that one

and that if

"free

to

available."

INX failed

pursue

INX

all

to assent, then

other

responded

arbitrate, that its financial

that even

if ordered

be appointed for INX,

legal

and

promptly

Menorah would

judicial

not

condition was precarious,

and

would preclude it from doing so.

it

measures

would

to arbitrate, its

that

feel

financial condition

On September

Aviv against INX.

10, 1992,

Menorah filed suit

in Tel

Although actually served, INX chose not to

respond or contest, and

default judgment was entered against

it for $812,907, interest at an annual rate of 11%, costs and

attorneys' fees.

INX did not pay nor did

it seek to remove

the default.

On September

action

in

judgment.

that

the

arbitrated.

the Superior

2, 1993, Menorah filed

Court in

San

Juan to

an exequatur3

enforce the

INX moved to dismiss, claiming for the first time

controversies

between

the

parties

had

to

be

On August 8, 1994, the court denied the motion,

finding that INX had waived arbitration

and that the Israeli

judgment was valid, and ordered INX to answer.

INX answered,

again claiming arbitration, and counterclaimed that Menorah's

____________________

3.

"Exequatur"

from another

refers to

jurisdiction.

an action

to execute

a judgment

See Seetransport Wiking Trader

___ ___________________________

Schiffahrtsgesellschaft
MBH & Co.
_____________________________________

v.

Navala, 29 F.3d 79, 81-82 (2d Cir. 1994).

______

-55

Navimpex Centrala
__________________

failure to submit the exequatur action

to arbitration was in

breach of its contractual duty of good faith.

On October 14,

1994,

show cause why

the

the Superior Court issued

petition

for

exequatur

an order to

should

not

be

granted.

In

response, INX removed the action to the federal court under 9

U.S.C.

205.4

The federal

1995,

finding

that

court remanded

INX

had

remaining claims were not

scheme.

Now, over

this matter

arbitration

March 15,

and

the

subject to the federal arbitration

three

request for arbitration

waived

the case on

years

after Menorah's

was refused and after the

internationally through three

original

travel of

different courts,

____________________

4.

Section 205 provides:

Where the subject matter

proceeding
relates

pending

to

in

of an action or
a

State

an arbitration

award falling under

court

agreement or

the Convention,

the

defendant or

the defendants may,

at any

time

the

remove

before

trial thereof,

such action or proceeding to the district

court

of

the

United

States

for

the

district and division embracing the place

where

the

pending.
causes

action
The

or

proceeding

procedure for

otherwise

provided by

is

removal of
law shall

apply, except that the ground for removal

provided in this
on the

face of the complaint

shown in the

action

this section
been

but may be

petition for removal.

the purposes of
any

section need not appear

Chapter 1 of this

or proceeding
shall

brought in

the

which it is removed.

For
title

removed under

be deemed

to

district court

have
to

-66

INX asks us to reverse the district court and send the matter

to arbitration.

Review

of

district

waiver of arbitration is plenary.

court's

determination

of

See Commercial Union Ins.

___ ______________________

Co. v. Gilbane Bldg. Co., 992 F.2d 386, 390 (1st Cir. 1993);
___
__________________

Leadertex, Inc. v.
________________

F.3d 20, 25

[legal]

Morganton Dyeing & Finishing Corp., 67

____________________________________

(2d Cir. 1995).

conclusion

[of

"[T]he

waiver]

findings upon which the

is

based

are

predicate

questions of fact, which may not be overturned unless clearly

erroneous."

Price v. Drexel Burnham Lambert, Inc., 791 F.2d

_____
_____________________________

1156, 1159 (5th Cir. 1986).

In the increasingly

the

use

of

arbitration

international business

agreements

may

be

particularly

important to avoid the

uncertainty [that] will almost inevitably

exist

with

respect

to

any

contract

touching two or more countries, each with

its own substantive laws and conflict-oflaws

rules.

specifying

contractual

provision

in advance the forum in which

disputes shall

be litigated and

to

is, therefore,

be applied

world,

the law
an almost

indispensable precondition to achievement

of

the

orderliness

essential

to any

and

predictability

international business

transaction.

Scherk
______

These

v.

Alberto-Culver Co.,
__________________

same interests

implement the

motivated

417

U.S.

this country

Convention, under which this

to federal court:

-77

506, 516

(1974).

to adopt

and

case was removed

The

goal

principal

of

the

Convention,

purpose

underlying

and

the

American

adoption and implementation of it, was to

encourage the recognition and enforcement
of

commercial arbitration

agreements in

international contracts and to

standards

by

which

arbitrate

are

observed

unify the

agreements
and

to

arbitral

awardsareenforcedinthesignatorycountries.

Id. at 520 n.15.

___

Against

policy

favoring

arguments.

that it

this backdrop

arbitration,

The district court

waived arbitration in

of a

INX

strong United

essentially

erred, it says,

the events of

States

makes

two

in deciding

1992.

In

any

event, INX says, it now has the right to have the question of

the enforceability of the

Israeli judgment, including

INX's

counterclaim, determined by an arbitrator.

The district court did not

or the law.

The explicit waiver came when INX was invited to

arbitrate in July 1992.

saved from

offered

that

in the

was

INX

expressly declined.

declination by

July 1,

appointed for INX.

it

err on either the facts

the fact

1992 letter

It is

not

that Menorah

had

to have

an arbitrator

That offer too was declined and INX said

both unwilling

and

unable

to

participate in

the

arbitration.5

____________________

5.

INX

claims

the

agreement

required
________

an

arbitrator

be

appointed
hardly

for it

if it declined

to do

so.

The language,

a model of clarity, does not so directly provide, and

easily could have done so were that the intent.

-88

The implicit waiver

of conduct.

came from INX's entire

course

This court has repeatedly held that "parties may

waive their right to arbitration and present their dispute to

court."

Caribbean Insurance Services, Inc.

___________________________________

v. American
________

Bankers Life Assurance Co., 715 F.2d 17, 19 (1st Cir. 1983).
___________________________

In

Caribbean,
_________

found

waiver where

the

arbitration delayed doing

so until six

months after it

sued

we

and it had entered a stipulation

exchange

for a

Id. at 20.
___

"reprieve from

Helpers Local Union No. 633,

_____________________________

cert.
_____

denied, 459
______

eleven months

U.S. 943

Chauffeurs, Teamsters and

_________________________

671 F.2d

(1982), we

38, 43

(1st Cir.),

found waiver

that

parties

go

to

arbitration despite their having advanced

so

far

in

court

proceedings

where

arbitration was

first raised, saying:

require

was

contempt finding."

of litigation occurred before

[T]o

claiming

for a speedy trial in

a likely

In Jones Motor Co. v.

_______________

party

before

seeking

arbitration

would

often

unfair, for it would effectively

be

allow a

party sensing an adverse court decision a

second chance in another forum.

That

sentiment applies here.

Packer Co.,
___________

waiver

493 F.2d

where a

In Gutor Int'l AG v. Raymond

_______________
_______

938, 945

(1st

party unconditionally

Cir. 1974),

we found

submitted part

arbitrable matter to the courts, but later attempted to

advantage of

the arbitration clause when

counterclaimed.

Cf.
___

Raytheon Co.
_____________

Systems, Inc.,
______________

882 F.2d

6,

8 (1st

-99

v.

Cir.

of an

take

the opposing party

Automated Business
__________________

1989) (defendant

waived issue of

damages being

raising it

whether it

consented to

issue of

submitted to arbitration by

in desultory manner

punitive

delaying and then

on first day

of arbitration

and not pursuing it).

It

for plaintiffs

must

has been the rule in this Circuit that in order

to prevail on

show prejudice."

"their claim

Sevinor v.
_______

Fenner & Smith, Inc., 807

_______________________

F.2d

of waiver,

they

Merrill Lynch, Pierce,

_______________________

16,

18

(1st Cir.

1986)

(finding

no

prejudice

where

promptly raised arbitration as

Commercial Union, 992 F.2d

________________

prejudice

reason

showing

here, as

the

prejudice to

found,

was ample

we have

apply the litmus

establish

waiver

and

suit); accord
______

Because there

district court

totality of circumstances test,

explicitly

a defense to a

at 390.

to reconsider whether to

of

defendants

or to

no

test of a

apply

as other circuits have done.

See Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39

___ ____
_____________________________________________

F.3d 1482, 1489 (10th Cir. 1994) (applying a "totality of the

circumstances"

test for

prejudice was but

the determination of

one factor);

waiver, where

S+L+H S.p.A. v.
____________

Nazianz, Inc., 988 F.2d 1518, 1527 (7th Cir. 1993).

_____________

Miller-St.
__________

Ignoring

action,6

its

failure

INX characterizes

its

to appear

in

delay

over a

of

the

Israeli

year

in

____________________

6.

INX asserts

that its inaction during

Israel was justified by

challenge the
voluntarily
Israeli

its desire to preserve its

jurisdiction of the
entered

the proceedings in

into

Israeli court.

reinsurance

corporation that specified Tel

-1010

agreements

right to
But

INX

with

an

Aviv as the site for

seeking arbitration as insufficient to show prejudice.

is

no per
___

se
__

rule that

sufficient to support waiver.

one

year delay

is

or is

month delay and participation in

resolution

discovery.

one in

of

which

the

Cf.
___

The period of delay here

information useful

dispute

was

(thirteen

discovery was not enough to

constitute a showing of prejudice).

not

not

Cf. J & S Constr. Co., Inc. v.

___ _______________________

Travelers Indem. Co., 520 F.2d 809 (1st Cir. 1975)

____________________

was

There

being

to

the ultimate

procured

Cabinetree of Wis., Inc.

___________________________

v.

through

Kraftmaid
_________

Cabinetry, Inc., 50 F.3d 388, 391 (7th Cir. 1995) (explaining

_______________

that delay alone

is not automatically a source

and that on occasion

it can comprise time the

of prejudice

parties spend

in

determining information

anyway).

until

to

they would

obtain the sums

1988) (waiver

demand

found where

for

error in

owed.

862 F.2d 754,

See Van Ness

___ ________

759 (9th

party made conscious

arbitration

judicial determination

the costs of proceeding

it thought

Townhouses v. Mar Indus. Co.,

__________
_______________

delay

arbitration

INX chose not to invoke arbitration from July 1992

October 1993 and Menorah bore

try to

need in

while

the district court's finding

decision to

continuing

of arbitrable claims).

Cir.

to

seek

There was no

that Menorah incurred

____________________

any

arbitration proceedings.

forum selection

clause,

In

even one

the commercial
for arbitration,

context a
confers

personal jurisdiction on the courts of the chosen forum.

Unionmutual Stock Life Ins. Co. of Am.
________________________________________

See
___

v. Beneficial Life
________________

Ins. Co., 774 F.2d 524, 527 (1st Cir. 1985).

________

-1111

expenses as a

direct result of

INX's dilatory behavior

and

that that was prejudice enough.

INX

suggests that

the

question of

arbitrability

should be decided

As

to that

and to

enforceability

arbitrated,

v. Kaplan,
______

faced

decide

with

in the first

of

INX's

the

argument that

Israeli

we are guided by

115 S.

Ct. 1920

the question

whether parties

their dispute.

the

judgment

arbitrator.

issue of

must

the

itself

be

First Options of Chicago, Inc.

______________________________

(1995).

of who

agreed

Id. at 1923.
___

question -- who has

instance by the

There, the court

has

the primary

to arbitrate

was

power to

the merits

of

Here, we face a variant of that

the primary power to decide

whether the

parties agreed to arbitrate the issue of enforceability of

default

judgment following

arbitration clause.

is

conceivable

That

that

failure

to

arbitrate under

an

question is appropriate because it

parties

could

decide

that

such

enforceability

disputes

"[A]rbitration

is simply

parties; it is a

subject

a matter

to

arbitration.

of contract

way to resolve those

those disputes -- that

arbitration."7

are

between the

disputes -- but

the parties have agreed to

only

submit to

Id. at 1924.
___

____________________

7.

There is precedent that,

enforce

foreign

money

as a matter of law,

judgments,

even

those

actions to
confirming

arbitration awards, are not preempted by the Convention.

Island Territory of Curacao
____________________________
F.2d

1313, 1319 (2d Cir.

(1974).

See
___

v. Solitron Devices, Inc., 489

_______________________

1973), cert. denied,

_____ ______

416 U.S. 986

We think, however, the better rule here is to follow

First Options.
______________

See
___

also
____

Mastrobuono
___________

-1212

v. Shearson Lehman
________________

So we apply the

First Options rule: "Courts should

_____________

not assume that the parties agreed to arbitrate arbitrability

unless there

did

is 'clear and unmistakable'

so." Id. (citations omitted).

___

agreement between

question of

INX and

evidence that they

There is

Menorah clearly stating

arbitrability of judgments should

an arbitrator.

nothing in the

that the

be decided by

Thequestion is onefor resolution by thecourt.

We

also

agree

with

the

arbitration of the enforceability

not required.

"[G]iven the

forced

to arbitrate

agreed

to submit

interpret

the

issues it

to arbitration,"

the

create a right of arbitration.

court

that

of the Israeli judgment is

principle that a

only those

silence of

district

id. at
___

agreement on

party can

be

specifically has

1925, we

this

do not

point to

And if the agreement could be

read for such an implication, INX has nevertheless waived its

right to arbitrate enforceability of the judgment.

The

ultimately,

and

law does not

the strong

underlying

undercut,

not

the

policy reasons

adoption

served,

Arbitration clauses

lend itself to

by

of the

acceptance

were not meant

INX's claims and

favoring arbitration

Convention

of

would

be

INX's

position.

to be another

weapon in

the

arsenal

for imposing

delay

and costs

in

the dispute

____________________

Hutton, Inc., 115 S. Ct. 1212, 1216 (1995) (issue of whether

_____________
arbitrator may award punitive damages "comes down to what the
contract has

to say about the

arbitrability of petitioners'

claim for punitive damages").

-1313

resolution

process.

contracts to

agree

to a

Underlying

arbitrate is

the policy

a belief that

mutually optimal

method and

of

enforcing

where parties

forum for

can

dispute

resolution, it serves the interests of efficiency and economy

to allow them to do so.

Chrysler-Plymouth, Inc.,
_______________________

Cf. Mitsubishi Motors Corp. v. Soler

___ _______________________
_____

473 U.S.

614, 633 (1985);

Allied Workers Int'l Union, Local 182B

_______________________________________

Co.,
___

56 F.3d

844, 848

service sold in a

the sellers

(7th Cir.

Glass &
_______

v. Excelsior Foundry
_________________

1995) ("Arbitration

competitive market.

The rules

are presumptively efficient.");

is a

adopted by

see also Steven

___ ____

Shavell,

Alternative
Dispute
Resolution: An
Economic
__________________________________________________

Analysis,
________

24

J.

Legal

Stud.

1,

8-9

(1995)

(a

central

rationale for

encouraging parties to contract

for their own

method of dispute resolution is that they are likely to agree

to the most efficient forum to serve their needs).

In

the context

of

international

contracts,

the

opportunities for increasing the cost, time and complexity of

resolving disputes are magnified

by the presence of multiple

possible fora, each with its own different substantive rules,

procedural schematas,

and legal

cultures.

This

is fertile

ground for manipulation and mischief, and acceptance of INX's

arguments

sought

would lead

to

avoid.

to

the very

Cf.
___

problems the

Elizabeth

Warren,

Policymaking in an Imperfect World,

___________________________________

92 Mich.

348-49

legal

(1993)

(Differences

among

Convention

Bankruptcy
__________

L. Rev.

systems

336,

provide

-1414

incentives

for "nonproductive strategic behavior" as debtors

attempt to take advantage

that

behind

are wasteful

such

and

of opportunities presented in ways

drive up

[arbitration]

costs.).

clauses,

and

"The

the

intention

reason

for

judicial enforcement of

them, are not to

parties to proceed, either

multiple forums."

Neither

adopting

party

allow or encourage

simultaneously or sequentially in

Cabinetree, 50 F.3d at 390.

__________

efficiency

INX's arguments.

nor

The

economy

are

scenario here --

served

by

in which a

knowingly opts out of the arbitration for which it has

contracted (even

if driven by looming

its

a default

hands while

insolvency8), sits on

judgment is

entered against

it

after service, refuses to pay, requires an enforcement action

be filed

against it,

undermines

both

the

and only

certainty

then cries

and

predictability

arbitration agreements

are meant to foster.

Motors,
______

631

473

U.S.

at

(Courts

"arbitration" --

should

which

Cf. Mitsubishi
___ __________

avoid

inviting

"'unseemly

and mutually destructive jockeying by the parties

to secure tactical litigation

damage the

imperil the

fabric of

advantages. . . .

[It would]

international commerce and

willingness and ability of

trade, and

businessmen to enter

____________________

8.

Ordinarily

players

in

far

dispute

between

on-going

commercial

"reputational" costs serve to soften inclinations to

obtain an advantage
is

in a single dispute.

in financial distress,

But

where a party

these reputational

checks become

less effective. Cf. Ronald J.

___

Gilson, Value Creation by

_________________

Business Lawyers: Legal Skills and Asset Pricing, 94 Yale L.

_________________________________________________
J. 239, 289-90 (1984).

-1515

into international commercial agreements.'") (quoting Scherk,

______

417

U.S.

at 516-17);

Express Inc., 811

_____________

should

not

arbitration

make the

be

F.2d

see
___

108, 112

permitted

to

as a "tactic in

litigation too

also
____

use

Gilmore v.
_______

(2d

a war of

expensive for

Shearson/Am.
____________

Cir. 1987)

delayed

(parties

assertion of

attrition designed to

plaintiff"); Allied_______

Bruce Terminix Cos. v. Dobson, 115 S. Ct. 834, 841 (1995) (in
___________________
______

interpreting

the

Federal Arbitration

Act court

notes that

Congress intended to help parties avoid costs and delay).

The order remanding this case to the Superior Court

of Puerto

Rico

is also

appropriate,

alternative interpretations of the

allows

removal if

action "relates

under the

Convention.

the subject matter

to an

under either

of the

arbitration agreement

Convention," and it

of

two

Section

205

[state] court

. .

. falling

is arguable, though

far from

certain, that an action to enforce a default judgment where a

defense

is that the parties agreed to arbitrate is an action

"relating

to an

viewed as being

arbitration

agreement."

properly removed

If

on the basis

the case

is

of both

the

plaintiff's enforcement action and the counterclaim, then the

finding of

waiver ultimately

jurisdiction.9

removed the basis

for federal

____________________

9.

Menorah

jurisdiction
based on

argues

this

because the district

determination

jurisdiction over
1447(d)

that

the

of

court

lacks

appellate

court's remand

order was

its lack

removed case

and

of

subject

that 28

matter

U.S.C.

(1994) bars the review of such a determination.

See
___

-1616

If, on the other hand, the removal was based on the

counterclaim alone,

the

pendent claim

could

be

remanded.

Principles of pendent jurisdiction allowed the district court

to exercise its discretion and relinquish jurisdiction over a

removed

case where all the federal claims were gone and only

pendent

exequatur claims remained.

See
___

28 U.S.C.

(1994); Carnegie-Mellon Univ. v. Cohill, 484

______________________
______

52,

355 n.11 (1988); Rodriguez

_________

n.20 (1st

Cir.

1989).

Since

Commonwealth's courts for

U.S. 343, 348-

v. Comas, 888
_____

this case

over a year

prior to its

verge of resolution, the court's

discretion

remand

the pendent

F.2d 899, 904

had been

and was on the

to

claims

1367(c)

in

the

removal

exercise of

was particularly

appropriate.

The district

court's order

remanding the

case to

the

Superior Court

of

Puerto Rico,

so that

the exequatur

____________________

Things Remembered, Inc. v. Petrarca, 64

________________________
________
(U.S. Dec. 5, 1995).
district court

Menorah

also

erred in granting removal

U.S.L.W. 4035, 4036

argues

that

the

of the proceedings

in

the first place.

Since Menorah easily wins an affirmance

on

the substantive issue of waiver, we decline to decide the

jurisdictional issues raised

427

U.S.

resolved

524, 528-33
in favor

of

by it.

(1976)

See Norton
___ ______

(where merits

the party

v. Mathews,
_______

can

challenging

be easily

jurisdiction,

resolution of complex jurisdictional inquiry may be avoided);

Lambert v. Kysar, 983
_______
_____

F.2d 1110, 1118 n.11 (1st

Cir. 1993);

Rhode Island Hosp. Trust Nat'l Bank v. Howard Communications

____________________________________
_____________________
Corp., 980 F.2d 823, 829 (1st Cir. 1992).
_____

INX in turn argues

that there is no jurisdiction to hear Menorah's argument that

the case was improperly removed to federal court.
do

not

reach those

arguments,

jurisdictional issue either.

we

need

Because we

not address

that

-1717

action may proceed, is affirmed.

________

Menorah.
_______

Double costs are awarded to

___________________________

-1818