Milos Sovak, M.d.; Biophysica, Inc., Plaintiffs-appellants, v. Chugai Pharmaceutical Co., a Corporation of the Empire of Japan; Cook Imaging Corporation, an Indiana Corporation, Defendants-appellees, 289 F.3d 615 (9th Cir. 2002)

ORDER

The opinion filed February 19, 2002 (280 F.3d 1266) is hereby ordered amended as follows:

Slip Op. at 2702 [280 F.3d at 1271]: Delete the entire text of footnote 1 and replace with:

On appeal, Sovak contends that if federal law applies, the district court improperly ordered arbitration in Chicago, as opposed to the Southern District of California. Compare Cont'l Grain Co. v. Dant & Russell, 118 F.2d 967, 968-69 (9th Cir. 1941) (holding that § 4 of the FAA limits a court to ordering arbitration within the district in which the suit was filed) with Dupuy-Busching Gen. Agency v. Ambassador Ins. Co., 524 F.2d 1275, 1276-78 (5th Cir. 1975) (concluding that § 4 bars ordering arbitration in another judicial district only when the party seeking to compel arbitration filed the federal suit). Sovak failed to raise this issue in opposing Cook's motion to compel arbitration. As such, we decline to address it. See, e.g., Animal Prot. Inst. of Am. v. Hodel, 860 F.2d 920, 927 (9th Cir. 1988) ("Federal appellate courts generally do not consider issues first raised on appeal.").

With this amendment, the panel has voted unanimously to deny the petition for rehearing. Judges O'Scannlain and Paez have voted to deny the petition for rehearing en banc. Judge King recommended that the petition for rehearing en banc be denied.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.