Continental Casualty v. American Nat'l Insur

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 04-1615
CONTINENTAL CASUALTY COMPANY,
an Illinois insurance company,
Plaintiff-Appellant,
v.

AMERICAN NATIONAL INSURANCE
COMPANY, a Texas insurance company,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 6607—Charles R. Norgle, Sr., Judge.
____________
ARGUED NOVEMBER 4, 2004—DECIDED AUGUST 5, 2005
____________

Before BAUER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Continental Casualty Co.
(“Continental”) filed suit against American National
Insurance Co. (“ANICO”), a co-participant in the Associated
Accident and Health Reinsurance Underwriters
(“AAHRU”) reinsurance pool managed by IOA Re, Inc.
(“IOA Re”). Continental attempted to leave the reinsurance
2 No. 04-1615

arrangement in 2000. It sought a declaratory judgment that
it owed no duty to indemnify ANICO pursuant to a Quota
Share Personal Accident Retrocession Contract (“Quota
Share Contract”) executed in 2001 by ANICO and IOA Re.
Continental maintained that IOA Re lacked the authority to
enter into the contract on Continental’s behalf. In response,
ANICO moved for dismissal on the grounds, among others,
that arbitration clauses in the Quota Share Contract between
IOA Re and ANICO, and in the AAHRU Participation
Agreement between IOA Re and Continental, required the
parties to arbitrate.
The district court agreed with ANICO, holding that IOA
Re had apparent authority as a matter of law to bind
Continental to the Quota Share Contract and that the
Participation Agreement’s arbitration clause also compelled
arbitration. Because the arbitration venue was not the
Northern District of Illinois, the district court dismissed the
action and Continental appeals. For the reasons set forth in
the following opinion, we affirm the judgment of the district
court.

I
BACKGROUND
A. Facts
Continental and ANICO were major participants in the
1
reinsurance pool, AAHRU. As part of the participation

1
“In essence, reinsurance is insurance for insurance companies.”
1A Lee R. Russ et al., Couch on Insurance § 9.1 (3d ed. 1995).
Under the typical reinsurance arrangement, a participant in the
pool (the “reinsured”) transfers (“cedes”) its risk on the ceded
(continued...)
No. 04-1615 3

agreements covering each member’s participation in the
pool, the fund manager, IOA Re, was granted the authority
to enter into reinsurance contracts on behalf of the members.
On July 5, 2000, Continental notified IOA Re of its intent to
terminate its participation in AAHRU at the end of 2000. It
followed this communication with two more notices on July
21 and November 29. On August 22, 2000, Continental also
revoked certain aspects of IOA Re’s agency authority,
including the authority to enter into multiple-year contracts
on Continental’s behalf and to back-date reinsurance
policies. Continental did not notify any of the other three
AAHRU members of its withdrawal. It notified only the
pool manager IOA Re.
ANICO claims that in 2000 it sought to cede certain
reinsurance business to AAHRU. This cession was reduced
to writing in a Quota Share Contract. For reasons that are
unexplained by ANICO and are not clear from the record,
the formal Contract was not executed until April 20, 2001—
after Continental’s withdrawal from the pool. However, the
Contract was back-dated and given an effective date of
January 1, 2000. The ceded block of policies included risks
covering the World Trade Center that were implicated by

1
(...continued)
policies to another participant (the “reinsurer”). This arrange-
ment allows the reinsured to spread its risk of loss. See generally
1A id. § 9.2.
In the year 2000, Continental’s contribution constituted 48.8%
($20 million) of the total value of AAHRU. ANICO’s contribution
represented 42.5% ($17.4 million). Two other participants made
up the remainder. In the decade of its participation, Continental’s
contribution to the AAHRU fund had increased from 5% to 48.8%
as other participants left; ANICO’s first year as a participant was
2000.
4 No. 04-1615

the terrorist attacks of September 11, 2001. Continental
asserts that it learned of the Quota Share Contract when, in
the wake of the attacks, ANICO asked for partial indemnifi-
cation under the agreement.
Continental’s participation is important to ANICO be-
cause, in 2000, Continental represented almost 50% of the
total AAHRU participation. Without Continental, ANICO’s
indemnification from other insurers would be reduced
significantly. ANICO claims that it would not have entered
into the reinsurance contract with IOA Re if it had known
that Continental would not be a participant in the reinsur-
ance pool.

B. District Court Proceedings
Continental filed this action against ANICO, seeking a
declaratory judgment that it was not bound by, and owed
ANICO no duty under, the Quota Share Contract. ANICO
then filed a motion to dismiss, contending that (1) the Quota
Share Contract contained an arbitration clause, and arbitra-
tion was required under the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 1 et seq.; (2) the venue was improper, see
Fed. R. Civ. P. 12(b)(3); and (3) Continental had failed to join
IOA Re, an indispensable party, see id. 12(b)(7).
ANICO grounded its arbitration argument in the arbitra-
tion clauses of two different agreements: the Quota Share
Contract entered into by IOA Re and ANICO and the
Participation Agreement between IOA Re and Continental
establishing Continental’s membership in AAHRU. The
district court first determined, as a matter of law, that IOA
Re had the apparent authority to bind Continental to the
Quota Share Contract that IOA Re had signed with ANICO.
Therefore, held the court, Continental was bound to arbi-
trate any disputes under the Quota Share Contract.
No. 04-1615 5

In the alternative, the court determined that the dispute
over Continental’s liability under the Quota Share Contract
arose under the Participation Agreement. The court rea-
soned that, although ANICO was not a signatory to the
Continental/IOA Re agreement, ANICO was a third-party
beneficiary to the Participation Agreement and thus was
entitled to invoke the Agreement’s arbitration clause. As the
district court viewed the matter, then, the dispute before it
was subject to two arbitration clauses: the Quota Share
Contract required arbitration and Continental’s Participa-
tion Agreement’s arbitration clause also covered “any
dispute” arising from the arrangement. Accordingly, the
district court held that “under either the Quota Share
Contract or the Participation Agreement, a valid arbitration
agreement exists; however, in either case, the forum for
arbitration is not in the Northern District of Illinois.” R.18 at
8. The court accordingly dismissed the action. See Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Lauer, 49 F.3d 323, 328
(7th Cir. 1995); Snyder v. Smith, 736 F.2d 409, 420 (7th Cir.
1984), overruled on other grounds by Felzen v. Andreas, 134 F.3d
873 (7th Cir. 1998).
Continental then brought this appeal, seeking review of
the two alternative holdings of the district court.

II
DISCUSSION
Before embarking on our analysis, we pause to set forth
some basic governing principles. “Although the Federal
Arbitration Act favors resolution of disputes through arbi-
tration, its provisions are not to be construed so broadly as
to include claims that were never intended for arbitration.”
American United Logistics, Inc. v. Catellus Dev. Corp., 319 F.3d
921, 929 (7th Cir. 2003). Whether the parties have agreed to
6 No. 04-1615

arbitrate is a question normally answered by the court
rather than by an arbitrator. The issue is governed by state
law principles governing contract formation. First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995); Reliance Ins.
Co. v. Raybestos Prods. Co., 382 F.3d 676, 678-79 (7th Cir.
2004). Nevertheless, we must be mindful that the FAA “is a
congressional declaration of a liberal federal policy favoring
arbitration agreements” and “that questions of arbitrability
must be addressed with a healthy regard for the federal
policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v.
Mercury Const. Corp., 460 U.S. 1, 24 (1983). “[A]s a matter of
federal law, any doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration . . . .” Id. at
24-25.

A.
We begin our analysis by dealing with a threshold issue
on which the parties have spent a great deal of time and
energy in the course of this appeal. In this court the parties
dispute the procedural posture in which this case comes to
us. ANICO takes the view that the district court acted under
Federal Rule of Civil Procedure 12(b)(1) and dismissed the
case for want of jurisdiction. Continental contends, how-
ever, that the district court dismissed the case under Rule
12(b)(6) for failure to state a claim. The parties believe that
this disagreement is important for two reasons. First,
Continental submits that, if the motion was decided under
Rule 12(b)(6), the district court erred by considering matters
outside of the pleadings, specifically the Participation
Agreement, without affording Continental Rule 56 proce-
No. 04-1615 7
2
dural protections. See Fed. R. Civ. P. 12(b). Continental
points out that the only Rule 12(b) ground with an eviden-
tiary limitation is 12(b)(6); thus, Continental argues, the
district court’s taking the time to explain why it considered
the Participation Agreement to be part of the pleadings
3
indicates that it was proceeding under Rule 12(b)(6).

2
Rule 12(b) provides, in relevant part:
If, on a motion asserting the defense numbered (6) to dismiss
for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable opportunity
to present all material made pertinent to such a motion by
Rule 56.
Fed. R. Civ. P. 12(b).
At oral argument, it became clear that Continental’s interpreta-
tion of the district court’s action as a Rule 12(b)(6) dismissal is
grounded in the first footnote of the district court’s order. There,
the court stated its rationale for considering the arbitration clause
in the Participation Agreement and cited a case construing Rule
12(b)(6):
Documents that a defendant attaches to a motion to dismiss
are considered part of the pleadings if they are referred to in
the plaintiff’s complaint and are central to the claim. See
Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,
431 (7th Cir. 1993); see also Federal Rule of Civil Procedure
10(c).
R.18 at 3 n.1.
3
As the district court recognized, the bar on considering matters
outside the pleadings is not absolute. Under Rule 10(c), “[a] copy
of any written instrument which is an exhibit to a pleading is a
part thereof for all purposes.” We have held that “this rule
(continued...)
8 No. 04-1615

Second, the parties believe that the procedural character-
ization of the district court’s action is important because it
affects our standard of review or, more particularly, our
presumptions in exercising that review. If ANICO is correct,
and the district court dismissed the action under Rule
12(b)(1), we review the district court’s legal conclusions de
novo and its findings of fact, in particular, the court’s
finding that ANICO had apparent authority, for clear error.
United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946
(7th Cir. 2003) (en banc). If, as Continental urges, the motion
to dismiss came under Rule 12(b)(6) or was an improperly
converted Rule 56 motion, then we must review the district
court’s ruling de novo but draw all reasonable inferences in
favor of the plaintiff. See Anderer v. Jones, 385 F.3d 1043, 1064
(7th Cir. 2004); Jet, Inc. v. Shell Oil Co., 381 F.3d 627, 629 (7th
Cir. 2004).
There is some authority to support the view of each party.
Some courts have taken the view that, if a district court
determines that parties have agreed to arbitrate a dispute,
the district court, at least temporarily, no longer has the

3
(...continued)
includes a limited class of attachments to Rule 12(b)(6) motions”
that are “central to [the plaintiff’s] claim,” especially when the
court must interpret a contract to determine whether the plaintiff
stated a claim. Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661
(7th Cir. 2002). For reasons discussed below, the Participation
Agreement is central to ANICO’s claim. Thus, even if we
accepted Continental’s argument that the district court dismissed
under Rule 12(b)(6), the court properly considered the Participa-
tion Agreement as part of the pleadings.
No. 04-1615 9
4
authority to resolve arbitrable claims. See 9 U.S.C. § 3.
Those courts consider that such a determination is jurisdic-
tional and therefore, a Rule 12(b)(1) dismissal is appropri-
5
ate. Other courts characterize the action as the plaintiff’s
failure to state a claim cognizable in federal court, a Rule

4
Under 9 U.S.C. § 3:
If any suit or proceeding be brought in any of the courts of
the United States upon any issue referable to arbitration
under an agreement in writing for such arbitration, the court
in which such suit is pending, upon being satisfied that the
issue involved in such suit or proceeding is referable to
arbitration under such an agreement, shall on application of
one of the parties stay the trial of the action until such
arbitration has been had in accordance with the terms of the
agreement, providing the applicant for the stay is not in
default in proceeding with such arbitration.
5
ANICO points to a number of district court decisions from this
circuit adopting the jurisdictional theory. See, e.g., Jacobsen v. J.K.
Pontiac GMC Truck, Inc., No. 01 C 4312, 2001 WL 1568817 (N.D.
Ill. Dec. 10, 2001); Johnson v. Universal Fin. Group, Inc., No. 02 C
1875, 2002 WL 1968388 (N.D. Ill. Aug. 22, 2002); see also Harris v.
United States, 841 F.2d 1097, 1099 (Fed. Cir. 1988) (upholding
district court dismissal under Rule 12(b)(1)); Atkins v. Louisville &
Nashville R.R. Co., 819 F.2d 644, 647 (6th Cir. 1987) (treating
dismissal as under Rule 12(b)(1)). This view stems from Evans v.
Hudson Coal Co., 165 F.2d 970 (3d Cir. 1948), a case that analogized
a motion to stay pending arbitration to an assertion that the
district court lacked subject matter jurisdiction—a Rule 12(b)(1)
assertion, id. at 972 (“[The district court] is thus, pending arbi-
tration, deprived of jurisdiction of the subject matter.”). It would
appear, however, that the Third Circuit has rejected the jurisdic-
tional approach of Evans. See infra note 6.
10 No. 04-1615
6
12(b)(6) dismissal. Indeed, there is authority indicating that
7
the dismissal is entirely separate from the Rule 12(b) rubric.
We need not—indeed we cannot—choose between the
competing characterizations offered by the parties. We think
it is clear that, despite the mis-citation to a case decided
under Rule 12(b)(6), the district court proceeded under Rule
12(b)(3)—improper venue—when it disposed of the case.
This approach makes eminent sense both in terms of the
actual substance of the district court’s action and in terms of
our precedent. The district court ultimately dismissed this

6
Notably, the Third Circuit appears to have adopted this view
in lieu of the earlier jurisdictional theory articulated in Evans. See
Lloyd v. HOVENSA, LLC, 369 F.3d 263, 272 (3d Cir. 2004);
Nationwide Ins. Co. of Columbus, Ohio v. Patterson, 953 F.2d 44, 45
n.1 (3d Cir. 1991); cf. Robinson v. Union Pac. R.R., 245 F.3d 1188,
1191 (10th Cir. 2001) (describing the parties’ dispute about
whether Rule 12(b)(1) or Rule 12(b)(6) applied and concluding
that “[b]ecause we determine that the question of whether the
Board exceeded the scope of its jurisdiction in interpreting the
parties’ collective bargaining agreement is both a jurisdictional
issue and a substantive factual determination, and because the
court relied on evidence outside the complaint, the motion was
properly considered as one for summary judgment”).
7
We have noted that the proper course of action when a party
seeks to invoke an arbitration clause is to stay the proceedings
pending arbitration rather than to dismiss outright. See Tice v.
American Airlines, Inc., 288 F.3d 313, 318 (7th Cir. 2002). The
authority to stay proceedings does not derive from Rule 12(b), cf.
Fed. R. Civ. P. 12(b) (“If, on a motion asserting the defense
numbered (6) to dismiss for failure . . . to state a claim . . . .”
(emphasis added)), but rather from the FAA, 9 U.S.C. § 3, see 5C
Charles Alan Wright et al., Federal Practice and Procedure § 1360,
at 87-89 (3d ed. 2004) (categorizing a motion to stay pending
arbitration as “Not Enumerated in Rule 12(b)”).
No. 04-1615 11

case because the forum selection clauses in the Quota Share
Contract and in the Participation Agreement required
arbitration in other districts. We have held dismissal under
these circumstances to be appropriate, see Merrill Lynch, 49
F.3d at 328; see also Mgmt. Recruiters Int’l, Inc. v. Bloor, 129
F.3d 851, 854 (6th Cir. 1997), and, when the question has
arisen, we have held that such dismissal properly is re-
quested under Rule 12(b)(3), see Frietsch v. Refco, Inc., 56 F.3d
825, 830 (7th Cir. 1995). Under Rule 12(b)(3), the district
court was not obligated to limit its consideration to the
pleadings nor to convert the motion to one for summary
judgment. The district court thus properly considered the
Participation Agreement.
The central issue in this case is whether Continental
agreed to arbitrate this dispute. Our review of that question
is plenary. See Continental Ins. Co. v. M/V Orsula, 354 F.3d
603, 607 (7th Cir. 2003) (“Our review of the enforceability
and applicability of a forum-selection clause, a contractual
term used to select a specific venue, is de novo.”); Hawkins
v. Aid Ass’n for Lutherans, 338 F.3d 801, 805 (7th Cir. 2003)
(“We review de novo the court’s decision to compel arbitra-
tion based on its finding that the parties entered into an
enforceable agreement.”). “[I]nsofar as [the district court’s]
decision rests on findings of fact, . . . we use the clearly
erroneous standard.” Reliance Ins. Co., 382 F.3d at 678; see
Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1140 (9th Cir.
2004) (“Upon holding an evidentiary hearing to resolve
material disputed facts, the district court may weigh
evidence, assess credibility, and make findings of fact that
are dispositive on the Rule 12(b)(3) motion. These factual
findings, when based upon an evidentiary hearing and
findings on disputed material issues, will be entitled to
deference.”).
12 No. 04-1615

B.
We have determined that the district court properly
considered the Participation Agreement. We now review the
Participation Agreement to determine its proper role in
resolving the situation before us. The first factor that must
be noted is the comprehensiveness of this document. This
agreement is central to the role of Continental in the reinsur-
ance relationship. The Participation Agreement is the only
agreement to which Continental is a party; it is the basis of
any relationship among Continental, ANICO, AAHRU and
IOA Re. It governs the basic duties and responsibilities of
Continental as a member of the reinsurance pool, the role of
the advisory committee of members in coordinating the
activities of all the members, and the termination of a
member from the arrangement. The Participation Agree-
ment also is central to Continental’s position in bringing this
action for declaratory relief. The Participation Agreement
demonstrates the interrelatedness and, indeed, interdepen-
dence of this agreement with the similar agreements of the
other participants. Indeed, the Participation Agreement
acknowledges this interdependence, see R.8, Ex.A, art.V, and
Continental’s complaint in this action specifically refers to
the aggregate of these participation agreements as the basis
for the relationship of its members. Finally, the arbitration
clause in the Participation Agreement is broad. It governs
“any dispute arising out of this Agreement.” R.8, Ex.A,
art.XIII.
Continental nevertheless submits that the Participation
Agreement is irrelevant to the present dispute which, in its
view, concerns only its obligations under the Quota Share
Contract. Indeed, Continental points out that ANICO is not
a party to the Participation Agreement between Continental
and IOA Re and therefore cannot enforce its provisions. We
cannot accept this perspective. As our earlier discussion
No. 04-1615 13

makes clear, the Participation Agreement is central to
Continental’s relationship to all other entities involved in
this reinsurance arrangement. Any obligation of Continental
in the Quota Share Contract transaction arose from its parti-
cipation in AAHRU, the specifics of which are governed by
the Participation Agreement. Although ANICO is not a party
to Continental’s Participation Agreement, it is clear that the
Agreement was undertaken precisely to provide a frame-
work to facilitate underwriting relationships between
Continental and other carriers such as ANICO.
The same characteristics of the Participation Agreement
make it clear that ANICO can indeed enforce the provisions
8
at issue in this litigation. As a general matter in Illinois,
“[o]nly signatories to an arbitration agreement can file a
motion to compel arbitration.” Bishop v. We Care Hair Dev.
Corp., 738 N.E.2d 610, 619 (Ill. App. Ct. 2000). This principle
is subject to certain “contract-based theories under which a
nonsignatory may be bound to the arbitration agreements of
9
others,” including the third-party beneficiary doctrine. Ervin
v. Nokia, Inc., 812 N.E.2d 534, 539 (Ill. App. Ct. 2004).

8
We note that the district court applied the law of the forum,
Illinois; although both the Quota Share Contract and the Partici-
pation Agreement arguably have separate provisions choosing
the law of Texas and Pennsylvania, respectively, the parties have
not challenged the district court’s decision to apply Illinois law.
Thus we, too, shall apply the law of the state of Illinois. See Sphere
Drake Ins. Ltd. v. American Gen. Life Ins. Co., 376 F.3d 664, 671 (7th
Cir. 2004); Gould v. Artisoft, Inc., 1 F.3d 544, 549 n.7 (7th Cir. 1993)
(“Where the parties have not identified a conflict between the two
bodies of state law that might apply to their dispute, we will
apply the law of the forum state . . . .”).
9
Other contract-based theories include agency or estoppel,
neither of which are before this court.
14 No. 04-1615

“Illinois recognizes two types of third-party beneficiaries,
intended and incidental. An intended beneficiary is intended
by the parties to the contract to receive a benefit for the
performance of the agreement and has rights and may sue
under the contract; an incidental beneficiary has no rights
and may not sue to enforce them.” Estate of Willis v.
Kiferbaum Const. Corp., 830 N.E.2d 636, 2005 WL 1251340,
at *5 (Ill. App. Ct. 2005). For an intended third-party bene-
ficiary to enforce contract terms, the liability of a promisor to
the beneficiary “’must affirmatively appear from the lan-
guage of the instrument,’ ” id. (quoting Carson Pirie Scott &
Co. v. Parrett, 178 N.E. 498 (1931)), and the contract must be
made for the direct benefit of the third party, Swavely v.
Freeway Ford Truck Sales, Inc., 700 N.E.2d 181, 185 (Ill. App.
Ct. 1998); see also Cahill v. E. Benefit Sys., Inc., 603 N.E.2d 788,
791 (Ill. App. Ct. 1992). It is not necessary that the beneficiary
be identified by name in the contract, but it must be identi-
fied in some manner, for example, by describing the class to
which it belongs. Holmes v. Fed. Ins. Co., 820 N.E.2d 526, 530
(Ill. App. Ct. 2004).
Despite Illinois’ stringent requirements to demonstrate
third-party beneficiary standing, we believe that ANICO
may enforce terms of the Participation Agreement. ANICO
is a beneficiary of the Participation Agreement as a pool
participant. The Participation Agreement contemplates that
Continental will participate to the extent of its agreed share
in any reinsurance business accepted by IOA Re, see R.8,
Ex.A, art.V § 2, including the block of reinsurance ceded by
ANICO, if that business was ceded before Continental
revoked IOA Re’s agency. Thus, we agree with the district
court that ANICO may enforce the Participation Agree-
ment’s arbitration provision as a third-party beneficiary of
the Continental/IOA Re Agreement.
No. 04-1615 15

C.
Given our discussion of the Participation Agreement, we
have little difficulty in concluding that the district court
properly determined that the issue of whether Continental
has any liability for the risks involved in the Quota Share
Contract is an issue for the arbitrator. The breadth of the
language in the Participation Agreement makes clear that
Continental’s liability must be decided in that forum.
Continental’s complaint asserted that IOA Re had no
authority to enter into the Quota Share Contract on its behalf
because Continental had withdrawn from AAHRU at the
time that the block of reinsurance at issue was ceded.
Resolution of whether Continental has any liability therefore
will require a determination of when the block of reinsur-
ance at issue was ceded. Concluding that this transaction
took place prior to Continental’s claimed withdrawal will re-
quire the antecedent conclusion that the arrangement among
the parties, as memorialized in the various participation
agreements, permitted the cession of such reinsurance in a
form other than writing. If, however, the cession became
effective after Continental’s attempt to withdraw, there will
be questions as to whether Continental had communicated
effectively its withdrawal to its fellow members through its
notification of IOA Re. This issue will require a determi-
nation of whether the contractual arrangement among the
participating insurance companies permitted notification
through IOA Re or whether it required more on the part of
Continental. This issue also may require a determination
of the nature of the fiduciary obligation under these inter-
dependent participation agreements between IOA Re and
each of the participating companies. The interpretation of
this multi-dimensional contractual arrangement, and the
significance of the parties’ actions in relation to that arrange-
16 No. 04-1615
10
ment, are complicated questions for the arbitrator.

Conclusion
We conclude that the issues presented by the complaint
are subject to arbitration under the Participation Agreement.
Moreover, because the Federal Arbitration Act forbids the
district court to compel arbitration outside the confines of
the district, the court properly dismissed the action. The
judgment of the district court is affirmed.
AFFIRMED

A true Copy:
Teste:

_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

10
We need not address the question of IOA Re’s apparent
authority, because we conclude that the Participation Agreement
requires arbitration of this dispute.

USCA-02-C-0072—8-5-05