Stateline Power Corp. v. Richard Kremer

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED
No. 05-10269 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
June 23, 2005
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-21927-CV-JLK

STATELINE POWER CORP.,
f.k.a. Southeast Diesel Acquisition Sub, Inc.,

Plaintiff-Appellee,

versus

RICHARD KREMER,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Florida

(June 23, 2005)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

The district court remanded this diversity case to state court based on the
forum selection clause of the parties’ contract, which states:

18. Governing Law. This Agreement and the rights and obligations
hereunder shall be governed by the laws of the State of Florida and
the parties to this Agreement specifically consent to the jurisdiction
of the courts of the State of Florida over any action arising out of or
relating to this Agreement.

The non-resident defendant appeals,1 contending that the remand order

misconstrues and therefore misapplies the forum selection clause. We agree.

Contrary to the district court’s view, the phrase “the courts of the State of

Florida” is ambiguous, potentially including not only state courts but federal

courts as well. Plaintiff drafted the agreement; hence, the ambiguity must be

resolved in favor of the defendant, Global Satellite Communication Co. V.

Starmill U.K. Ltd., 378 F.3d 1269, 1274 (11th Cir. 2004), so that the phrase

includes federal courts, as well as state courts, in Florida.

Alternatively, if the phrase is unambiguous and refers only to Florida’s state

courts, we must consider an issue the district court failed to address: whether

paragraph 18 is a “permissive” or a “mandatory” forum selection clause. Id. At

1272. The paragraph contains no mandatory language to indicate that the parties

meant to foreclose litigation anywhere else. Moreover, nothing in the paragraph’s

1
We have jurisdiction to review the remand order. Snapper, Inc. V. Redan, 171 F. 3d
1249, 1260 (11th Cir. 1999) (28 U.S.C. § 1447(d) does not bar review of remand order based on a
forum selection clause.).
2
language suggests that the defendant waived his right to remove the case to federal

court. In short, paragraph 18 is permissive.

The district court’s remand order is vacated. The case is returned to the

district court for further proceedings.

SO ORDERED.

3