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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2005 Decided November 15, 2005
No. 04-7162
AZHAR ALI KHAN AND
ASMA AZHAR KHAN,
APPELLANTS
v.
PARSONS GLOBAL SERVICES, LTD., ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01574)
Cyril V. Smith argued the cause for appellants. With him on
the briefs was Elaine Charlson Bredehoft.
Eugene Scalia argued the cause for appellees. With him on
the brief was Tanya Axenson Macallair.
Before: GINSBURG, Chief Judge, and ROGERS and BROWN,
Circuit Judges.
2
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: To recover for injuries resulting
from his kidnapping, Azhar Ali Khan and his wife, Asma Azhar
Khan, sued Parsons Global Services Limited (“PGSL”) and its
affiliates and agents (together, “Parsons”) for negligence and
intentional infliction of emotional distress. The district court
granted summary judgment to Parsons, ruling that the Khans’
tort claims were barred by Mr. Khan’s contractual agreement
with PGSL to accept workers’ compensation insurance as the
exclusive remedy for injuries arising out of and in the course of
his employment. On appeal, the Khans contend that the district
court abused its discretion by granting summary judgment
without permitting discovery requested under Fed. R. Civ. P.
56(f). They maintain that abuse of discretion is manifest where
a motion for summary judgment is filed at the outset of a case
prior to any discovery, key facts are in the defendant’s exclusive
possession, and the plaintiffs submit detailed affidavits
describing the discovery they seek. Whether this is so depends
principally on whether, as the Khans also contend, the district
court erred as a matter of law in interpreting the D.C. Workers’
Compensation Act (“WCA”), D.C. Code Ann. §§ 32-1501 et
seq., as it was incorporated in Mr. Khan’s employment contract.
Because Parsons considers Mr. Khan to have been a “traveling
employee” at the time of his kidnapping and because it regards
his injuries to have accrued due to the employment relationship,
Parsons maintains that workers’ compensation is Mr. Khan’s
sole avenue of relief. Because the traveling employee exception
under the WCA, as interpreted by the District of Columbia
Court of Appeals, is a narrow exception to the exclusion of
coverage for injuries suffered while away from an employer’s
premises, we reverse and remand the case for further
proceedings.
3
I.
In March 2001, Azhar Ali Khan, a British citizen, signed an
employment contract (the “Assignment Agreement” or
“agreement”) with PGSL, which has its principal place of
business in the District of Columbia. Mr. Khan agreed to work
as an accountant in Manila, the Philippines, for a term of two
years. At that time, Mr. Khan, Mrs. Khan, and their children
were living in Kuala Lumpur, Malaysia, where Mr. Khan
worked for Parsons. The agreement noted that Mrs. Khan and
the children would live with Mr. Khan in Manila, and provided
for a housing allowance as well as health benefits. The
agreement contained a clause requiring Mr. Khan to accept
workers’ compensation “as full and exclusive compensation for
any compensable bodily injury, occupational disease, or death
resulting therefrom, arising out of and in the course of
Employee’s employment hereunder,” (emphasis added), and a
clause requiring him to arbitrate in Geneva, Switzerland, under
the laws of the State of California, any claims “aris[ing] out of
or in connection with” his employment. Mr. Khan departed for
Manila on Tuesday, May 1, 2001, obtained lodging at a hotel,
and had intended to look for an apartment on Sunday, May 6,
2001.
On Saturday evening, May 5, a day when PGSL’s Manila
offices were closed, Mr. Khan dined alone, paying cash for his
meal in a local restaurant. As he returned to his hotel, he was
abducted by three men. The kidnappers held Mr. Khan for
approximately three weeks, during which time they chained him
to the floor, attempted to hang him, and tortured him in other
ways. During this period, the complaint alleges, Parsons
officials promised Mrs. Khan that Parsons would pay the ransom
demanded by the kidnappers; they also, however, took the
position that paying the ransom would undercut Parsons’ long-
term interests by providing an incentive to kidnap Parsons
employees in the future. On May 25, 2001, the kidnappers cut
4
off a portion of Mr. Khan’s ear and sent the videotape of the
event to Parsons. The next day, Mr. Khan was released after
Parsons paid the ransom.
Mr. and Mrs. Khan sued Parsons, alleging that PGSL,
various affiliated corporate entities (PGSL’s parent company,
Parsons Corp., and other Parsons Corp. subsidiaries), and
several agents of the Parsons entities were negligent and liable
for the intentional infliction of emotional distress. The alleged
torts were improperly conducting negotiations with the
kidnappers; delaying payment of the demanded ransom; refusing
to provide Mrs. Khan with information about the kidnapping,
including the amount of the ransom demand; telling her “lies”
and “inconsistent, illogical, negligent” explanations for the
actions taken; and forcing her to communicate with the
kidnappers and to give them false promises that payment of the
ransom was forthcoming. According to the complaint, if Mrs.
Khan had been aware of the kidnappers’ demands, she would
have been able to obtain the money to free Mr. Khan, which
could have prevented his torture and mutilation. Mr. Khan also
alleged that Parsons coerced him into employment negotiations
after his ordeal, required him to resume work “only a few weeks
after his release,” threatened to stop paying his housing
allowance, medical expenses, and other allowances, and
threatened to transfer him to Karachi, Pakistan, despite the fact
that Mr. Khan would not “feel safe” there.
The complaint was filed in D.C. Superior Court on May 20,
2003. On July 22, 2003, Parsons removed the case to the federal
district court pursuant to the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, implemented in 9
U.S.C. § 201 et seq., which provides federal jurisdiction in
matters involving an arbitration agreement arising out of a
commercial relationship where one party to the agreement is not
a United States citizen. 9 U.S.C. §§ 202-203. The notice of
5
removal included the Assignment Agreement as an attachment.
A week later, Parsons filed a motion to dismiss, or alternatively
for summary judgment or to compel arbitration, arguing that Mr.
Khan was “effectively still in travel status” at the time of his
kidnapping. The Khans filed an opposition, seeking denial
outright because, in part, the “horrifying injury and acts of
deliberate torture . . . neither arose from, nor occurred in the
course of, Mr. Khan’s work for [PGSL],” and alternatively
seeking the motion’s denial “pending plaintiffs’ opportunity to
take discovery under Rule 56(f).” Pls.’ Mem. Opp’n 1-2. They
attached to their opposition declarations describing the
discovery sought pursuant to Rule 56(f) as well as a statement
describing material facts in dispute pursuant to L.R. 7.1(H) and
56.1. The district court granted summary judgment to Parsons
and denied the Khans’ motion for reconsideration. The Khans
appeal. Our review of the grant of summary judgment is de
novo, Universal City Studios LLLP v. Peters, 402 F.3d 1238,
1241 (D.C. Cir. 2005), accepting the factual allegations in the
complaint as true, Information Handling Services, Inc. v.
Defense Automated Printing Services, 338 F.3d 1024, 1029
(D.C. Cir. 2003). Our review of the decision to grant summary
judgment instead of permitting discovery under Rule 56(f) is
reviewed for abuse of discretion. Paquin v. Fed. Nat’l
Mortgage Ass’n, 119 F.3d 23, 28 (D.C. Cir. 1997).
II.
The Assignment Agreement, which settles on workers’
compensation as the “full and exclusive compensation for any
compensable bodily injury, occupational disease, or death
resulting therefrom, arising out of and in the course of
Employee’s employment hereunder,” copies the standard
phrasing of many workers’ compensation statutes. See 1
ARTHUR LARSON & LEX K. LARSON, LARSON’S WORKERS’
COMPENSATION § 3.01 (2002) (hereinafter “LARSON’S”). As the
case comes to us, the parties agree that the WCA, which defines
6
compensable injury in the same terms, controls the interpretation
of the Assignment Agreement. In order to determine whether
the district court abused its discretion by granting summary
judgment before allowing the Khans to pursue requested
discovery as contemplated by Rule 56(f), the court must first
determine whether the district court’s interpretation of the
contractual bar reflected a proper construction of the WCA.
Although it would not be unusual for this court to certify a
“genuinely uncertain” question of District of Columbia law to
the District of Columbia Court of Appeals, see Sturdza v. United
Arab Emirates, 281 F.3d 1287, 1303 (D.C. Cir. 2002); D.C.
Code § 11-723(a) (2001), we conclude that the Court of Appeals
has already provided the guidance necessary to resolve this point
of law.
The WCA provides that workers’ compensation is an
employee’s exclusive remedy against the employer for injuries
“arising out of” and “in the course of” the employment. D.C.
Code § 32-1501(12). The District of Columbia has adopted the
“going and coming” rule. As explained by the District of
Columbia Court of Appeals in Kolson v. Department of
Employment Services, 699 A.2d 357, 359 (D.C. 1997), “[t]he
general rule [is] that the occurrence of employee injuries
sustained off the work premise, while enroute to or from work,
do not fall within the category of injuries in the course of
employment.” Id. at 359 (quoting 1 LARSON, THE LAW OF
WORKMEN’S COMPENSATION § 15.00) (internal quotation marks
omitted). The District of Columbia recognizes an exception to
this rule for the “traveling employee,” see, e.g., id. at 360, and
it is the scope of this exception that is at issue here.
The Khans contend that the district court erred as a matter
of law by concluding that Mr. Khan’s injuries arose out of and
occurred in the course of his employment because the travel
involved in his relocation to Manila was completed several days
7
prior to his kidnapping, his job as an accountant did not involve
travel, and his kidnapping occurred on a non-working day after
a non-business dinner. Under the district court’s interpretation
of the traveling employee exception, which the Khans maintain
is unprecedented and radically expansive, “the [workers’
compensation] statute covered every minute of every day of Mr.
Khan’s time in the Philippines.” Br. of Appellants at 9. Further,
the Khans contend, Mrs. Khan’s injuries, which are alleged to
have resulted from Parsons’ refusal to inform her of the ransom
demand, did not occur “in the course of” her husband’s
employment because those injuries resulted from Parsons’ post-
kidnapping refusal to divulge the ransom demand. Parsons
responds that the Khans’ injuries are covered by workers’
compensation because they arose as a result of the fact that Mr.
Khan was on a work assignment in a foreign country and his
“injury ha[d] its origin in a risk created by the necessity of
sleeping and eating away from home.” Br. of Appellees at 15
(quoting 1 LARSON’S § 25.03[1] (2002)) (internal quotation
marks omitted). Parsons therefore maintains that “all the natural
incidents of [a business] trip which would be contemplated by
the employer, such as the eating of meals in ordinary places at
ordinary times, were in the course of that employment.” Id. at
16 (quoting Hurley v. Lowe, 168 F.2d 553 (D.C. Cir. 1948))
(internal quotation marks omitted).
The district court appears to have treated Mr. Khan as a
“traveling employee” of Parsons, concluding that because Mr.
Khan’s “injuries arose as he walked between a restaurant and a
hotel he was patronizing as a consequence of his business-
related travel for defendant Parsons,” workers’ compensation
would be his exclusive remedy. Although Parsons, in support
of its “travel status” gloss on the traveling employee exception,
8
relies on cases from Virginia,1 California,2 New York,3 and
Minnesota,4 none is dispositive. Those cases where workers’
compensation coverage was found involved employees who
were required to travel away from the employer’s premises for
a brief period, or who engaged in continuous travel because of
the demands of their job. For example, in Capizzi v. Southern
District Reporters, Inc., 459 N.E.2d 847, 849-50 (N.Y. 1984), a
transcriber-typist employed by a New York firm slipped and fell
on the first day of a four-day business trip to Toronto, Canada.
In Southern Motor Lines Co. v. Alvis, 104 S.E.2d 735 (Va.
1958), a long-haul truck driver whose work “required [him] to
be on the road” died from an accidental fall from a hotel room,
where his employer was putting him overnight as he broke up
his journey on a long trip. Id. at 738. Neither of these cases, nor
any of the other cases cited by Parsons,5 indicates that an
1
S. Motor Lines Co. v. Alvis, 104 S.E.2d 735 (Va. 1958).
2
Leonard Van Stelle, Inc. v. Indus. Accident Comm’n, 382
P.2d 587, 591 (Cal. 1963).
3
Markoholtz v. Gen. Elec. Co., 193 N.E.2d 637 (N.Y. 1963);
Capizzi v. S. Dist. Reporters, Inc., 459 N.E.2d 847, 849-50 (N.Y.
1984).
4
Voight v. Rettinger Transp., Inc., 306 N.W.2d 133, 138
(Minn. 1981); Epp v. Midwestern Mach. Co., 208 N.W.2d 87, 89
(Minn. 1973).
5
In Leonard Van Stelle, 382 P.2d at 590-91, a real estate
saleswoman was injured on “the return trip from the inspection” of a
ranch property on behalf of her employer. In Markoholtz, 193 N.E.2d
637, the court found that the employee, who was killed in a plane
crash following a one-week vacation, was covered by workers’
compensation because the crash occurred when he was “on his way to
resume his employment” in Schenectady via Paris, “whither his
employer’s business had taken him” for a conference. Id. at 639.
9
employee who relocates in order to accept a new job would fall
within the exception. Mr. Khan was not on a trip away from a
home base of Parsons’ operations when he was injured, nor was
he an itinerant employee. So far as the record reveals, he was
hired to work at a fixed job site for a period of years.
The case with facts closest to those in the instant case is
Butera v. Fluor Daniel Construction Corp., 18 P.3d 278, 282
(Kan. App. 2001). In Butera, a fixed-site employee took up
residence at a hotel for six months in order to shorten his
commute to work. His work required that he be willing to
temporarily relocate to remote construction sites and find long-
term lodging convenient to the site. Id. at 280. The Kansas
court held that because the nature of the employee’s
employment did not increase his risk of a road accident, the
employee’s off-site injuries in such an accident would not be
covered by workers’ compensation. Id. at 282. Under Kansas
law, the court pointed out, an employee’s injury must both be
“reasonably foreseeable” and “result from a rational causal
connection between the work itself and the resulting injury.” Id.
at 283 (emphasis added). No such work connection was present
in Mr. Khan’s case; he was employed as an accountant, and his
injuries chiefly arose from his employer’s alleged action and
inaction, and that of its parent and affiliates, as negotiators for
his release from the kidnappers.
Butera alone would seem to settle the matter except for the
fact that the WCA may impose a less stringent causal
requirement than the Kansas statute does. See, e.g., Harrington
Neither of the Minnesota cases apply to Mr. Khan’s situation either.
The first, Voight, 306 N.W.2d at 134, involves a school bus driver
injured while on “a weekend charter run,” and the second, Epp, 208
N.W.2d at 87, involves a constantly itinerant truck driver injured
while on a “weekend layover.”
10
v. Moss, 407 A.2d 658, 662 (D.C. 1979). In the District of
Columbia, what is required is that “the obligations or conditions
of employment create the ‘zone of special danger’ out of which
the injury arose.” Id. (citing O’Leary v. Brown-Pacific-Maxon,
Inc., 340 U.S. 504, 507 (1951)). Even with this lesser causal
requirement, however, it is apparent that the traveling employee
exception does not extend to encompass every situation where
an employee ventures abroad.
In Kolson, relied upon by Parsons as the “leading case” on
this issue, Br. of Appellees at 12, the D.C. Court of Appeals
explained that “[t]raveling employees are employees for whom
travel is an integral part of their jobs, such as those who travel
to different locations to perform their duties, as differentiated
from employees who commute daily from home to a single
workplace.” Kolson, 699 A.2d at 360 (emphasis added).
Kolson was an interstate bus driver who sought coverage for
injuries sustained when he was assaulted at 4:30 a.m. while
walking to a hotel, arranged through his employer, because the
bus driver was too tired to travel back to his home after a
twelve-hour shift. Id. at 358. The court held that “when a
traveling employee is injured while engaging in a reasonable
and foreseeable activity that is reasonably related to or
incidental to his or her employment, the injury arises in the
course of employment.” Id. at 361. Because the bus driver’s
injuries resulted from a foreseeable risk of his employment,
which required traveling away from home for long and odd
hours, id., the court held that the injury rose in the course of and
out of his employment. Id. at 362.
Although Parsons takes refuge in the “foreseeable activity”
language of Kolson, it ignores the court’s emphasis on the nexus
between the travel, the work, and the injury that must exist if
workers’ compensation is to be obtained. Id. at 360-62. The
terms of the Assignment Agreement did not indicate that Mr.
11
Khan needed to “travel to different locations” to perform his
accounting duties; rather, he was to travel to a single location,
PGSL’s office in Manila, in order to take a new job as a Project
Finance Administration Manager and thereafter enjoy a
sedentary existence. Once in Manila, he commuted from home
(temporarily, a hotel) to a single workplace. Even assuming that
PGSL has more than one office location in Manila, there is
nothing to indicate that travel formed an “integral part” of Mr.
Khan’s job. Parsons has never contested Mr. Khan’s declaration
to that effect. Thus, his injuries had nothing to do with fulfilling
his responsibilities to PGSL as an accountant, much less with
“travel away from [his] employer’s premises” as that phrase is
used in cases applying the traveling employee exception. See,
e.g., Kolson, 699 A.2d at 362; Vieira v. D.C. Dep’t of
Employment Servs., 721 A.2d 579, 583 (D.C. 1998). The other
examples of a traveling employee discussed in Kolson, 699 A.2d
at 362, similarly indicate that the traveling employee exception
would not extend to an employee hired to relocate for a lengthy
period to a different city. As the Khans contend, were the rule
otherwise, workers’ compensation would cover all of the Mr.
Khan’s activities in Manila regardless of the work
connectedness required by Kolson.
Even assuming for purposes of argument the merit of
Parsons’ theory that workers’ compensation reaches injuries
incurred by employees who are on “travel status” by virtue of
having to relocate their permanent residence to accept a new job,
coverage under that theory would not reach Mr. Khan’s injuries.
The Assignment Agreement limited Mr. Khan’s relocation travel
time from Kuala Lumpur to Manila to two days, and he was
kidnapped several days after his arrival, on his day off, when
PGSL’s offices were closed. It is irrelevant that he was living
temporarily at a hotel when he was kidnapped; the Assignment
Agreement included payment of a housing allowance, so PGSL
would be subsidizing his housing no matter where he lived for
12
the term of his employment. That he ate in a restaurant on his
day off does not render him a traveling employee either; many
non-traveling employees eat in restaurants on their days off.
Parsons can cite to no authority, from within the District of
Columbia or without, that an employee is converted into a
traveling employee who is entitled to coverage under a state’s
workers’ compensation statute simply because he is at the start
of a new job at a fixed, out-of-state location.
The District of Columbia’s interpretation of the traveling
employee exception as a narrow exception to the going and
coming rule is buttressed by decisions from other jurisdictions.
For example, New York courts have not applied the traveling
employee exception to bring employees in Mr. Khan’s position
within the reach of its workers’ compensation statute. The New
York workers’ compensation statute does not apply to
employees who are “employed to work at a fixed place or places
outside the state,” as opposed to employees called upon to
perform “transitory work” outside of the state. Cameron v. Ellis
Constr. Co., 169 N.E. 622, 624 (N.Y. 1930). The New York
Court of Appeals explained that this result would obtain even if
the claimant were hired in New York; in other words, a New
York contract that creates a fixed-state employment outside of
New York does not confer upon the employee the status of being
a “traveling employee” from New York and hence such an
employee is not covered by the state’s workers’ compensation
law. Id.; see also Spomer v. Westron Corp., 312 N.Y.S.2d 730
(N.Y. App. Div. 1970); Root v. Workmen’s Comp. Appeal Bd.,
636 A.2d 1263 (Pa. Commw. Ct. 1994). These holdings accord
with the views of the authors of the leading treatise on workers’
compensation that when “regular employment becomes
centralized and fixed so clearly in another state that any return
to the original state would itself only be casual, incidental and
temporary by comparison,” then the employee ceases to be
considered to be “traveler” from the original state. 9 LARSON’S
13
§ 143.04[2][d] (citing cases); cf. Lewis v. Knappen Tippetts
Abbett Eng’g Co., 112 N.Y.S.2d 79 (N.Y. App. Div.), aff’d 108
N.E.2d 609 (N.Y. 1952). Like the employees in Cameron,
Spomer, and Root, and unlike the employee in Lewis, Mr.
Khan’s employment was from the outset of the employment
contract “fixed” and “centralized” in Manila, and neither the
Khans nor Parsons have claimed any ongoing work-related
contacts with Washington, D.C., where PGSL is located. Cf.
Hartham v. George A. Fuller Co., 453 N.Y.S.2d 843 (N.Y. App.
Div. 1982). Although most of these cases rest their holdings on
the territorial limitations of the state workers’ compensation
statute in question, the cases cited reflect the fact that the
traveling employee exception cannot be used to bypass the
jurisdictional limits of state workers’ compensation laws. Once
an employee lies outside a statute’s territorial limits, which
Parsons concedes Mr. Khan does, Br. of Appellees at 44, the
traveling employee exception does not bring that employee back
into the realm of the statute’s coverage.
Parsons’ position that any torts committed by Parsons
“arose from the employment relationship” need not detain us.
Mr. Khan contacted Parsons, the complaint alleges, at the
insistence of the kidnappers. See Compl. ¶ 42. Parsons’
contrary assertion is unsupported by affidavit, and, in any event,
Mr. Khan’s alleged injuries did not “arise out of and in the
course of” Mr. Khan’s status in the manner in which courts have
interpreted the phrase. See, e.g., Harrington, 407 A.2d at 662;
Joyner v. Sibley Mem’l Hosp., 826 A.2d 362, 374 (D.C. 2003).
Rather, courts have followed Professor Larson’s admonition that
the fundamental question for coverage is one of “work
connection.” 1 LARSON’S §3.01. Therefore, the question is
whether the injury is “reasonably related to or incidental to” the
employment. Kolson, 699 A.2d at 361. Holding the WCA to
apply to Mr. Khan’s injuries would override this “basic concept
of compensation coverage.” 1 LARSON’S §3.01. Because the
14
traveling employee exception, as construed in Kolson by the
District of Columbia’s highest court, does not extend to travel
status as defined by Parsons, the question whether Mr. Khan was
on a “personal break” during his kidnapping does not arise.
Because Mr. Khan was not properly considered a “traveling
employee” when he was kidnapped in Manila, the district court
erred in entering summary judgment for Parsons on the ground
that the Assignment Agreement barred tort recovery under the
Khans’ complaint. Because the agreement does not bar Mr.
Khan’s tort claims, the court has no occasion to address three
related workers’ compensation issues: whether there can be
recovery for the intentional infliction of emotional distress
notwithstanding WCA coverage, whether Mrs. Khan’s claims
are barred by the Assignment Agreement, and whether the
Khans’ claims against the Parsons’ agents and corporate
affiliates are likewise barred.
III.
We need only briefly discuss the Khans’ claim of Rule 56(f)
error. Rule 56(f) provides that the district court “may refuse the
application for [summary] judgment or may order a continuance
to permit affidavits to be obtained or depositions to be taken or
discovery to be had” if it “appear[s] from the affidavits of a
party opposing the motion that the party cannot for reasons
stated present by affidavit facts essential to justify the party’s
opposition.” The court has long recognized that a party
opposing summary judgment needs a “reasonable opportunity”
to complete discovery before responding to a summary
judgment motion and that “insufficient time or opportunity to
engage in discovery” is cause to defer decision on the motion.
Martin v. Malhoyt, 830 F.2d 237, 256 (D.C. Cir. 1987); see also
First Chi. Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C.
Cir. 1988).
15
Parsons attached three affidavits to its motion for summary
judgment. Its motion was filed in lieu of an answer, before a
scheduling order, discovery, or initial disclosures, and the
motion relied upon information in Parsons’ sole control. In
response to the motion, the Khans filed two Rule 56(f)
declarations by their counsel outlining the nature of the
discovery they sought. As the Khans suggest, “[i]t makes no
sense for [Parsons] to assert that the key issue [of WCA
coverage] in the case had already been ‘determined’ by its
insurance carrier,” Reply Br. at 3, and as it was, the Khans were
forced “to operate in the dark, with no discovery – not even a
copy of the alleged workmen’s compensation insurance
agreement.” Br. of Appellants at 15. Cf. Dean v. Motel 6
Operating L.P., 134 F.3d 1269, 1271 (6th Cir. 1998). Because
the district court never ruled on the Khans’ initial Rule 56(f)
discovery request, on remand, the district court should address
both Rule 56(f) declarations.
Accordingly, we reverse the grant of summary judgment
and remand the case to the district court for further proceedings.
We do not rule on the Khans’ challenges to the arbitration clause
in the Assignment Agreement as they still seek discovery
regarding it.