PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FINDWHERE HOLDINGS,
INCORPORATED,
Plaintiff-Appellee,
v.
SYSTEMS ENVIRONMENT
OPTIMIZATION, LLC; FRANK
WILLIAMS; MATTHEW WILLIAMS, No. 09-2155
Defendants-Appellants,
and
HOMELAND SECURITY NETWORKS,
INCORPORATED; TERRY A. COLLS;
TED DEWINTER,
Defendants.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:09-cv-00809-GBL-TRJ)
Argued: October 28, 2010
Decided: November 29, 2010
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opin-
ion, in which Judge King and Judge Keenan joined.
2 FINDWHERE HOLDINGS v. SYSTEMS ENVIRONMENT
COUNSEL
ARGUED: Philip J. Harvey, FISKE & HARVEY, PLC,
Alexandria, Virginia, for Appellants. Alan Bruce Croft,
MCCANDLISH & LILLARD, Leesburg, Virginia, for Appel-
lee. ON BRIEF: Adrien C. Pickard, FISKE & HARVEY,
PLC, Alexandria, Virginia, for Appellants. Lawrence J.
McClafferty, MCCANDLISH & LILLARD, Leesburg, Vir-
ginia, for Appellee.
OPINION
DAVIS, Circuit Judge:
Appellee FindWhere Holdings, Inc. ("FindWhere") filed
suit in the Circuit Court for Loudoun County, Virginia, seek-
ing damages for breach of contract against Homeland Security
Networks, Inc. ("Homeland Security") and others, including
Appellants Systems Environment Optimization, LLC ("SEO,
LLC"), Frank Williams and Matthew Williams. FindWhere
alleged that SEO, LLC, was potentially liable as a subsidiary
of Homeland Security. FindWhere also alleged that the entity
defendants never properly formed, thereby exposing the four
individual defendants to potential liability for the obligations
of the corporate defendants.
Appellants removed the case to the United States District
Court for the Eastern District of Virginia. FindWhere filed a
timely motion to remand the case to state court based on the
contract’s forum selection clause. Following a hearing, the
district court granted the motion and remanded the case. On
appeal, Appellants contend that the district court erred in con-
cluding that the forum selection clause confers jurisdiction
over the parties’ dispute exclusively to the state courts of Vir-
ginia.1 We reject Appellants’ contention and affirm.
1
For clarity and consistency, we use the language of the contract and
refer to the Commonwealth of Virginia as a "state."
FINDWHERE HOLDINGS v. SYSTEMS ENVIRONMENT 3
I.
A.
FindWhere sells global positioning systems and provides
follow-up tracking services. FindWhere and Homeland Secur-
ity entered into a contract in May 2008 wherein Homeland
Security agreed to act as FindWhere’s exclusive reseller in
several countries in the Middle East.
FindWhere filed suit in the Circuit Court for Loudoun
County, Virginia, in June 2009 for breach of contract. Find-
Where alleged that Homeland Security failed to pay for units
ordered by SEO, LLC (a Homeland Security subsidiary).
SEO, LLC, Frank Williams, and Matthew Williams removed
the case to the United States District Court for the Eastern
District of Virginia on July 22, 2009, on the basis of diversity
of citizenship jurisdiction.2 FindWhere filed a motion to
remand the case to state court based on the contract’s forum
selection clause, which states:
This Agreement will be governed by and construed
in accordance with the laws of the State of Delaware,
USA. Jurisdiction and venue of any dispute or legal
action brought by either party arising out of or relat-
ing to this Agreement or the commercial relationship
of the parties, shall lie exclusively in, or be trans-
ferred to, the courts of the State of Virginia, USA.
Company [Homeland Securities] hereby submits,
consents, and agrees not to contest such jurisdiction
and venue . . . .
At the hearing conducted by the district court, the parties
and the court focused attention on the phrase "or be trans-
2
The remaining defendants, Homeland Security, Terry Colls, and Ted
Dewinter, did not join in or consent to the removal, but FindWhere failed
to seek remand to state court on that ground.
4 FINDWHERE HOLDINGS v. SYSTEMS ENVIRONMENT
ferred to, the courts of the State of Virginia." Appellants
argued that the presence of the phrase — "or to be transferred
to" — in the forum selection clause must contemplate federal
court jurisdiction over contractual disputes because a state
court cannot "transfer" a case to another state’s courts,
whereas federal courts, alone, have authority to transfer venue
to a federal court in a different state. See, e.g., 28 U.S.C.
§ 1404(a). FindWhere, relying on more expansive definitions
of the word "transfer," responded that the provision allowing
transfer should not be interpreted so narrowly as Appellants
suggested. FindWhere contended that "the simple meaning of
transferred is to go to or to be taken from one place to
another." Mot. Hr’g Tr. 4.
The district court, in granting the motion to remand, stated:
. . . I’m of the opinion that the clause here is one that
is focused on sovereignty. "Exclusively in" refers to,
in my view, the court in the State of Virginia. I
understand the defense position that "or be trans-
ferred to" language that it’s not possible to transfer
a case from one state to another, and that viewing the
clause in its entirely, I still think that it is a clause
that selects a sovereignty. And I do not think that the
federal court is a federal court of the State of Vir-
ginia.
Mot. Hr’g Tr. 15.
B.
Upon this timely appeal, we have jurisdiction pursuant to
28 U.S.C. § 1291. Although the appeal is from the district
court’s remand order, the case does not fall within the general
prohibition of appellate review for remand orders pursuant to
28 U.S.C. § 1447(d). The general prohibition of section
1447(d) extends only to remand orders based on a lack of sub-
ject matter jurisdiction or a timely raised defect in removal
FINDWHERE HOLDINGS v. SYSTEMS ENVIRONMENT 5
procedure. See Ellenburg v. Spartan Motors Chassis, 519
F.3d 192, 194 (4th Cir. 2008) (citing Things Remembered,
Inc. v. Petrarca, 516 U.S. 124, 127 (1995)). Every circuit to
have considered the issue has held that a remand order based
on a forum selection clause is reviewable on appeal. See
Autoridad de Energia Electrica de Puerto Rico v. Ericsson,
201 F.3d 15 (1st Cir. 2000); Yakin v. Tyler Hill Corp., 566
F.3d 72, 75 (2d Cir. 2009); Foster v. Chesapeake Ins., 933
F.2d 1207 (3d Cir. 1991); Waters v. Browning-Ferris Indus-
tries, 252 F.3d 796 (5th Cir. 2001); DaWalt v. Purdue
Pharma, 397 F.3d 392, 399 (6th Cir. 2005); Cruthis v. Metro-
politan Life Ins. Co., 356 F.3d 816 (7th Cir. 2004); Kamm v.
ITEX Corp., 568 F.3d 752, 755 (9th Cir. 2009); Milk "N"
More v. Beavert, 963 F.2d 1342 (10th Cir. 1992); Global Sat-
ellite Communication v. Starmill, 378 F.3d 1269 (11th Cir.
2004).
II.
This court reviews "de novo a district court’s decision on
an issue of contract interpretation." Seabulk Offshore v. Amer-
ican Home Assurance, 377 F.3d 408, 418 (4th Cir. 2004). The
parties’ agreement provides that it is to be construed under the
law of Delaware. It is settled in Delaware that "a court must
construe the agreement as a whole, giving effect to all provi-
sions therein." E.I. du Pont de Nemours & Co., Inc. v. Shell
Oil Co., 498 A.2d 1108, 1113 (Del. 1985).
In granting the motion to remand, the district court applied
the widely-accepted rule that forum selection clauses that use
the term "in [a state]" express the parties’ intent as a matter
of geography, permitting jurisdiction in both the state and fed-
eral courts of the named state, whereas forum selection
clauses that use the term "of [a state]" connote sovereignty,
limiting jurisdiction over the parties’ dispute to the state
courts of the named state. Doe 1 v. AOL, LLC, 552 F.3d 1077,
1082 (9th Cir. 2009) (reasoning that the phrase "courts ‘of’
Virginia refers to courts proceeding from, with their origin in,
6 FINDWHERE HOLDINGS v. SYSTEMS ENVIRONMENT
Virginia-i.e., the state courts of Virginia. Federal district
courts, in contrast, proceed from, and find their origin in, the
federal government.")(per curiam); Am. Soda, LLP v. U.S.
Filter Wastewater Group, Inc., 428 F.3d 921, 926 (10th Cir.
2005) (term "Courts of the State of Colorado" restricts juris-
diction to state courts); Dixon v. TSE Int’l Inc., 330 F.3d 396,
398 (5th Cir. 2003) (term "Courts of Texas, U.S.A." restricts
jurisdiction to state courts); LFC Lessors, Inc. v. Pac. Sewer
Maint. Corp., 739 F.2d 4, 7 (1st Cir. 1984) (term "in the
courts of the Commonwealth of Massachusetts" restricts juris-
diction to state courts).
We think the rule is sound and join our sister circuits in
adopting it here. The forum selection clause before us is
unambiguously expressed in terms of sovereignty and there-
fore excludes jurisdiction in the federal courts in Virginia.
The clause provides that jurisdiction and venue "shall lie
exclusively in . . . the courts of the State of Virginia." As fed-
eral courts are not courts "of" the state of Virginia, the con-
tract language at issue refers to sovereignty rather than
geography and limits jurisdiction over the parties’ dispute to
state court. Id.
Appellants’ contention that the insertion of the additional
language "or be transferred to" necessarily implies that the
parties intended that there be concurrent federal and state
court jurisdiction within Virginia is unpersuasive. It is true, of
course, that one narrow, strict meaning of a "transfer" of a
case describes the result of a federal judge’s order transferring
venue under 28 U.S.C. § 1404(a), an order not within the
power of a judge of a state court. But there is scant reason to
adopt so crabbed a meaning of the word "transfer." First,
acceptance of this argument would require us to disregard the
plain language of an unambiguous clause assigning exclusive
jurisdiction over disputes to an identified state court.3 Second,
3
Adoption of Appellants’ contention would require us to interpret the
forum selection clause in a manner that assumes one of the contracting
FINDWHERE HOLDINGS v. SYSTEMS ENVIRONMENT 7
interpreting the phrase "or be transferred to" in its ordinary
and usual meaning retains the significance of the entire forum
selection clause. See Black’s Law Dictionary (8th Ed. 2004)
(defining "transfer" as "[t]o convey or remove from one place
. . . to another"); Merriam-Webster Dictionary, available at
http://www.merriam-webster.com/dictionary/transfer (defin-
ing "transfer" as "to convey from one person, place, or situa-
tion to another: move, shift"). We do so here.
III.
The district court did not err when it remanded this action
to state court based on the forum selection clause before us.
Accordingly, the judgment is
AFFIRMED.
parties might bring suit in a state or federal court outside of Virginia alto-
gether, in clear violation of the grant of exclusive jurisdiction in Virginia.
Such an assumption would further compel us to indulge the possibility of
a removal of such an action from a non-Virginia state court to a non-
Virginia federal district court, followed by a motion to transfer venue over
such an action to a federal district court in Virginia. In light of the plain
language of the forum selection clause and the well-settled guidance dis-
cussed in the text, we see no reason to engage in such speculative interpre-
tive machinations.