Collin County v. Siemens Business Services, Inc.

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT Fifth Circuit

FILED
October 3, 2007
No. 06-40302
Charles R. Fulbruge III
Clerk

COLLIN COUNTY, TEXAS,

Plaintiff–Appellee,
versus

SIEMENS BUSINESS SERVICES, INC.; ET AL,

Defendants,

SIEMENS BUSINESS SERVICES, INC., BEN L. KRAGE,

Defendants–Appellants.

Appeal from the United States District Court
for the Eastern District of Texas
4:05-CV-141

Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:*

The district court remanded this diversity case to state court

based on a clause in the sued on contracts that the removing

defendants–appellants SAP, Public Services, Inc. (“SAP”) and

Siemens Business Services, Inc. (“Siemens”), respectively entered

*
Pursuant to 5TH CIR. R.47.5 the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
into with plaintiff–appellee Collin County, Texas (“the County”).

The district court held that this contractual clause, which states

that “venue for all actions in connection with this Agreement shall

lie exclusively in Collin County, Texas,” constitutes a valid

waiver of federal removal rights because there currently is no

federal district courthouse within Collin County and because the

clause refers to a county rather than a district. Because we

agree, under the particular facts here, with the former, although

not the latter, reasoning of the district court, we affirm.

FACTS AND PROCEEDINGS BELOW

In 2003, the County decided to replace and to consolidate its

computer systems using an Enterprise Resource Planning Software

System (“ERP System”), which the County hoped would manage all

aspects of its business. ERP Systems incorporate large bodies of

software from companies such as Microsoft, Oracle, and SAP.

Because such systems are large and complex, those wishing to use an

ERP System often seek out a third party, like Siemens, to implement

it. For this reason, in September 2003, the County circulated a

request for proposals. In October 2003, SAP and Siemens submitted

a written proposal for the County’s project.

In March 2004, after an earlier meeting with Siemens and SAP

representatives, the County entered into two contracts: a software

end-user license agreement with SAP and a services agreement with

Siemens. These contracts stipulated that SAP would license the

2
software to the County while Siemens would implement the ERP

System. Both contracts stated that “venue for all actions in

connection with this Agreement shall lie exclusively in Collin

County, Texas.”

The County alleges that after Siemens and SAP started the ERP

System project for the County, they encountered problems with

matching the ERP System to the County’s requirements and that, on

March 18, 2005, Siemens and SAP informed the County that it could

not implement the ERP System as promised. On March 22, 2005, the

County brought suit against Siemens and SAP in the 219th Judicial

District Court of Collin County, Texas. That court is located in

Plano, Texas. The County asserted claims against Siemens and SAP

for fraud, negligent misrepresentation, and breach of contract, all

in relation to the above referenced contracts and subject matter.

On April 15, 2005, based solely on diversity jurisdiction,

Siemens removed the action to the Sherman Division of the United

States District Court for the Eastern District of Texas. SAP

timely consented to removal. On May 12, 2005, the County timely

moved to remand, arguing that Siemens and SAP had waived their

right to remove by agreeing to the clause in their respective

contracts fixing exclusive venue in Collin County, Texas.

By order entered January 24, 2006, the district court granted

the County’s motion to remand. The district court agreed with the

County that Siemens and SAP had waived their removal rights by

3
agreeing that venue “shall lie exclusively in Collin County,

Texas.” The district court reasoned that the venue clause

constituted such a waiver because, first, “there currently is no

federal district court located in Collin County, Texas,” and

second, “because the SAP and Siemens Agreements stated venue in

terms of a county as opposed to a federal district.” Siemens and

SAP timely filed notices of appeal.

DISCUSSION

I.

We begin by confirming our jurisdiction to review the district

court’s remand order.1 District courts frequently remand for lack

of subject matter jurisdiction under 28 U.S.C. § 1447(c), and 28

U.S.C. § 1447(d) bars appellate review of such remands.2 Waters v.

Browning-Ferris Indus., Inc., 252 F.3d 796, 797 (5th Cir. 2001);

McDermott Int’l, Inc. v. Lloyds Underwriters of London, 944 F.2d

1199, 1203 (5th Cir. 1991). In this case, however, the district

court based its remand order on the contractual venue clause fixing

1
“This court necessarily has the inherent jurisdiction to determine its
own jurisdiction.” Scherbatskoy v. Halliburton Co., 125 F.3d 288, 290 (5th
Cir. 1997). Likewise, even when the parties to a suit do not challenge our
jurisdiction, “it is always appropriate for us to confirm our jurisdiction.”
Waters v. Browning-Ferris Indus., Inc., 252 F.3d 796, 797 (5th Cir. 2001).
2
Subsection (c) of 28 U.S.C. § 1447 dictates, “[i]f at any time before
final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” Subsection (d) of 28 U.S.C. §
1447, “Procedure after removal generally,” states that “[a]n order remanding a
case to the State court from which it was removed is not reviewable on appeal
or otherwise, except that an order remanding a case to the State court from
which it was removed pursuant to section 1443 of this title shall be
reviewable by appeal or otherwise.” 28 U.S.C. § 1443 is inapplicable to the
instant appeal as it addresses civil rights cases.

4
venue in Collin County. Thus, the district court’s remand order

was “not based on lack of subject matter jurisdiction and is

therefore outside of the statutory prohibition on our appellate

review.”3 Waters, 252 F.3d at 797. “Contractual remand orders are

reviewable by direct appeal.” Id.; see Dixon v. TSE Int’l Inc.,

330 F.3d 396, 398 (5th Cir. 2003) (per curiam). Our review is de

novo as it involves determining whether the district court

correctly interpreted the County’s contracts with SAP and Siemens.

See McDermott Int’l, Inc., 944 F.2d at 1204 (reviewing, in a case

analyzing district court’s remand order based on insurance policy,

“the district court’s interpretation of the policy de novo”); see

also Southland Oil Co. v. Mississippi Ins. Guaranty Association,

182 F. App’x 358, 360 (5th Cir. 2006) (“A remand order is reviewed

de novo.”). We proceed to consider this appeal’s merits.

II.

Siemens and SAP assert various reasons why this court should

hold that the district court erred in ordering remand: because the

clause in their contracts with the County was not a “clear and

unequivocal” waiver of federal removal rights; because the district

3
See also McDermott Int’l, Inc., 944 F.2d at 1201 (“[T]he availability
and means of appellate review for a district court’s remand order depend
entirely on the court’s reason for issuing the order. . . . Congress denies
us authority to review remand orders that district courts issue under 28
U.S.C. § 1447(c) for lack of subject-matter jurisdiction. 28 U.S.C. §
1447(d). . . . The district court remanded this case pursuant to the
[insurance] policy’s service-of-suit clause, a reason outside the scope of
section 1447(c). Section 1447(d) does not bar our review.” (footnotes and
internal citations omitted)).

5
court for the Eastern District of Texas has jurisdiction over

Collin County; and because, since the contract clause at issue is

susceptible to disparate readings, it should be construed against

the County as the drafter of the clause. Siemens argues further

that the County’s fraud and negligent misrepresentation causes of

action do not arise “in connection” with Siemens and SAP’s

contracts with the County, and therefore are not subject to the

contract clause at issue. Lastly, SAP argues that construing the

contractual venue clause to proscribe removal would require

litigation in state court of patent-related claims that can only be

litigated in federal court. As explained below, we reject these

arguments.

A.

SAP argues that the district court erred in ordering remand

because reading the venue clause to prohibit removal would require

litigating patent claims in state court that should only be

litigated in federal court. We disagree. It is true that the

County’s license agreement with SAP refers to SAP’s patent rights,4

and that 28 U.S.C. § 1338 dictates that federal district courts

“have exclusive original jurisdiction of any civil action arising

under any Act of Congress relating to patents.” Scherbatskoy v.

Halliburton Co., 125 F.3d 288, 290 (5th Cir. 1997). Siemens and

4
The license agreement states that “all intellectual property rights,
including patent . . . rights, in the SAP Proprietary Information are and
shall remain in SAP and its licensors.”

6
SAP, however, premised their motion to remove solely on diversity

of citizenship; removal was not based on jurisdiction over patent-

related disputes under section 1338. Nor could Siemens and SAP

have removed this case under section 1338, because the instant

action does not deal with patents in any way. “To determine

whether jurisdiction is present for removal, we consider the claims

in the state court petition as they existed at the time of

removal.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d

720, 723 (5th Cir. 2002). Section 1338 grants district courts

exclusive jurisdiction of suits that “include[] allegations that

federal patent law creates the cause of action or federal patent

law is a necessary element of the claim.” Scherbatskoy, 125 F.3d

at 291. The County’s stated claims for fraud, negligent

misrepresentation, and breach of contract do not create such an

action. The possibility of some ancillary patent-related issue

does not confer jurisdiction; not all patent law questions demand

federal jurisdiction—state courts can and do resolve such issues.

Speedco, Inc. v. Estes, 853 F.2d 909, 913 (Fed. Cir. 1988); see

also Am. Tel. & Tel. Co. v. Integrated Network Corp., 972 F.2d

1321, 1324 (Fed. Cir. 1992) (stating that an ancillary issue

relating to patent law “cannot of itself sustain [federal]

jurisdiction”); Lang v. Patent Tile Co., 216 F.2d 254, 255 (5th

Cir. 1954) (“Questions under the patent laws may arise in the

course of the litigation, but this is not a case arising under

7
those laws.”). Moreover, we decline to conclude that the venue

clause in this case is ambiguous due to the possibility that, at

some future date, an action will be instituted that does arise

under the patent laws. As the County points out, in such a case,

the venue clause simply would not apply. See Highland Supply Co.

v. Klerk’s Flexible Packaging, B.V., No. 05-CV-482-DRH, 2005 WL

3534211, at *2, *4 (S.D. Ill. Dec. 21, 2005) (explaining that

“because federal courts have exclusive jurisdiction over patent

claims, the Agreement’s forum-selection clause is of no

consequence”).

B.

We also reject Siemens’s argument that two of the County’s

claims—fraud and negligent misrepresentation—do not arise “in

connection” with Siemens and SAP’s contracts with the County and

therefore are not subject to the venue clause at issue. Siemens

reasons that “the County’s fraud and negligent misrepresentation

claims allegedly arise from conduct which occurred before any

contract was entered between the parties and thus cannot be

governed by the subject venue clause.” Siemens relies primarily on

two cases: Major Help Ctr., Inc. v. Ivy, Crews & Elliott, P.C., No.

03-99-00285-CV, 2000 WL 298282 (Tex. App.—Austin Mar. 23, 2000, no

pet.) (unpublished), and Busse v. Pac. Cattle Feeding Fund #1,

Ltd., 896 S.W.2d 807 (Tex. App.—Texarkana 1995, writ denied). The

Busse case, in which the Texas Court of Appeals in Texarkana held

8
that a forum selection clause did not control a fraudulent

inducement claim, is immediately distinguishable because the

plaintiffs in that action “were not parties to the contract sought

to be enforced.” Clark v. Power Mktg. Direct, Inc., 192 S.W.3d

796, 798 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In the

unpublished Major opinion, the Texas Court of Appeals in Austin

found the plaintiffs’ Deceptive Trade Practices Act (“DTPA”) claim

fell outside of the forum-selection clause on which the defendants

relied in their motion to dismiss. 2000 WL 298282, at *2–3. The

court found the forum-selection clause inapplicable because the

plaintiffs did not rely on their contract with the defendant to

maintain their DTPA claim and did not seek to enforce the

obligations or duties arising under the contract. Id. at *3.

We agree with the County that the venue clause in this case

encompasses the fraud and negligent misrepresentation claims

asserted by the County. Texas courts have indicated that claims

for fraud in the inducement of a contract relate to the contract

and are therefore subject to the contract’s forum selection

clause—even though the fraud claim is based on pre-contractual

conduct. See, e.g., In re J.D. Edwards World Solutions Co., 87

S.W.3d 546, 551 (Tex. 2002) (per curiam) (stating that whether

contract “was induced by fraud is a dispute ‘involving’ [the

9
parties’] agreement”)5; Clark, 192 S.W.3d at 799–800 (providing

that claims related to defendant’s alleged conduct in inducing

plaintiffs to sign contracts encompassed by those contracts’ forum-

selection clauses). There is no indication that the County’s fraud

and negligent misrepresentation claims could be maintained without

reference to its contracts with Siemens and SAP. Thus, we find

that they are subject to the contracts’ venue clause.

C.

We thus arrive at the central issue in this appeal: whether

the contract clause fixing exclusive venue in Collin County, Texas

constitutes a waiver of Siemens and SAP’s removal rights. It is

established that “[a] party may remove an action from state court

to federal court if the action is one over which the federal court

possesses subject matter jurisdiction.” Manguno, 276 F.3d at 723

(citing 28 U.S.C. § 1441(a)).6 It is likewise established law that

5
In In re J.D. Edwards World Solutions Co., the parties entered into a
contract that included a provision stating that “disputes involving this
Agreement . . . shall be determined under the law of the State of Colorado.”
87 S.W.3d at 548 (internal quotations omitted). The Texas Supreme Court gave
no indication, however, that its decision—that the fraudulent inducement claim
was covered by the contract—would have been different under Texas law.
Moreover, the Texas Supreme Court noted, “[a]lthough there remains a question
about whether federal law, Colorado law or the [Uniform Arbitration Act]
controls the resolution of the disputed issues in this case, we need not
decide which applies, or to what extent, because the result is the same under
all three.” Id. at 550.
6
28 U.S.C. § 1441(a) states, in pertinent part:
“Except as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed by
the defendant or the defendants, to the district court of the
United States for the district and division embracing the place

10
a party may waive its removal rights by contract—even without the

use of “explicit words, such as ‘waiver of right of removal.’”

Waters, 252 F.3d at 797; see also City of Rose City v. Nutmeg Ins.

Co., 931 F.2d 13, 15 (5th Cir. 1991) (directing remand to state

court based on contract, even though the contract did “not

specifically mention the right of a defendant to remove an

action”). Still, contractual clauses purporting to waive federal

jurisdiction must be mandatory and not merely permissive. See

Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 956–57 (5th Cir.

1974) (finding that federal district court erred in dismissing

action where forum-selection clause was merely permissive).

Further, contractual clauses that waive federal jurisdiction will

be enforced only if enforcement is reasonable. See In re Fireman’s

Fund Ins. Cos., 588 F.2d 93, 95 (5th Cir. 1979) (“Where the parties

have by contract selected a forum, it is incumbent upon the party

resisting to establish that the choice was unreasonable, unfair, or

unjust.” (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92

S.Ct. 1907, 32 L.Ed.2d 513 (1972))). Here, it is undisputed that

the venue clause at issue is mandatory. Moreover, while SAP weakly

attempts to challenge the reasonableness of enforcing the venue

clause, the record is devoid of evidence demonstrating that

enforcement would be unreasonable.7 Defendants–appellants Siemens

where such action is pending.”
7
Indeed, Siemens concedes that there is no issue in regards to whether
the venue clause is reasonable.

11
and SAP are large, sophisticated companies, and the venue clause in

the contracts they entered into with the County “appears to be a

voluntary, bargained for arrangement between . . . strong

contracting parties.” Id. We therefore conclude that the venue

clause in this case is both mandatory and enforceable. We next

consider the district court’s reasons for holding that the

contractual clause, which dictates that venue “shall lie

exclusively in Collin County, Texas,” constitutes a waiver of

federal removal rights.

First, we disagree with the district court’s remand order to

the extent that it says that when a contractual clause refers to a

“county” rather than a “district,” the right to remove to federal

court is waived. In its order to remand, the district court stated

that one way by which a defendant may waive the right to remove

under 28 U.S.C. § 1441 is by “consenting to a forum selection

clause which designates exclusive venue in a county rather than a

judicial district.” For this proposition, the district court

cited, inter alia, the Tenth Circuit opinion in Excell, Inc. v.

Sterling Boiler & Mech., 106 F.3d 318 (10th Cir. 1997). In Excell,

the Tenth Circuit affirmed the district court’s remand order after

agreeing that a forum selection clause that stated, “[j]urisdiction

shall be in the State of Colorado, and venue shall lie in the

County of El Paso, Colorado,” constituted a waiver of federal

jurisdiction. 106 F.3d at 320-21. The Tenth Circuit reasoned:

12
 “Although [the appellant] argues the clause can be
reasonably interpreted to allow removal of the case to
federal district court that sits in El Paso County, we
reject this argument. For federal court purposes, venue
is not stated in terms of ‘counties.’ Rather, it is
stated in terms of ‘judicial districts.’ See 28 U.S.C.
§ 1391. Because the language of the clause refers only
to a specific county and not to a specific judicial
district, we conclude venue is intended to lie only in
state district court.”

Id. at 321. As indicated in the above quotation, the Tenth Circuit

relied on section 1391 for the proposition that venue in terms of

federal district courts should be stated in terms of “districts”

and not “counties.” However, “[s]ection 1441(a), and not the

ordinary federal venue statute, 28 U.S.C. § 1391, governs venue in

removed cases.” Global Satellite Commc’n Co. v. Starmill U.K.

Ltd., 378 F.3d 1269, 1271 (11th Cir. 2004) (citing Polizzi v.

Cowles Magazines, Inc., 345 U.S. 663, 665–66, 73 S.Ct. 900, 97

L.Ed. 1331 (1953)). “The federal general removal statute, 28

U.S.C. § 1441, permits removal of certain actions from state court

‘to the district court of the United States for the district and

division embracing the place where such action is pending.’” Id.

(quoting 28 U.S.C. § 1441(a)). While section 1441(a) refers to the

“district” and the “division” of the federal court, it does so only

in relation to location of the federal court that may hear the

removed case. Given that section 1441, and not section 1391,

governs venue in removal cases, the use of the term “county” rather

than “district” at the very least falls short of a clear and

unequivocal waiver of federal jurisdiction. Thus, we cannot agree

13
with the district court’s first reason for concluding that the

clause at issue in this case constituted such a waiver.

The district court’s second reason for concluding that the

venue clause constituted a waiver of federal removal rights and for

ordering remand was that there currently is no federal district

courthouse in Collin County. We agree that, under the facts of

this case, Collin County’s lack of a federal courthouse renders the

clause at issue such a waiver.

First, we think it clear that the clause at issue in this case

was intended to relate to where there is a sitting court. Siemens

and SAP argue that the clause’s language allows removal to a

federal district court whose jurisdiction encompasses, as well as

those courts actually regularly sitting in, Collin County. We have

previously declined to lump these two categories of courts

together. In Argyll Equities LLC v. Paolino, 211 F. App’x 317, 318

(5th Cir. 2006) (per curiam) (unpublished), this court held that a

forum selection clause rendered venue proper only in a state court

in Kendall County, Texas. Although the San Antonio Division of the

United States District Court for the Western District of Texas

encompasses Kendall County within its jurisdiction, 28 U.S.C. §

124(d)(4), court for the San Antonio Division is held only in San

Antonio, which is in Bexar County. 28 U.S.C. § 124(d)(4); Paolino,

211 F. App’x at 318-19. This court declined to allow suit to

proceed in the San Antonio Division when the parties had agreed to

a forum selection clause limiting venue to Kendall County.

14
Paolino, Id. at 319. We also rejected the appellant’s argument

that suit was properly in the federal court because “28 U.S.C. §

141(a) allows special sessions of the district court to be held

anywhere in the district.” Id. at 319. We reasoned that “for

purposes of the forum selection clause at issue here, the district

court ‘sits’ where it regularly holds court, not in the potentially

infinite number of places in the Western District of Texas where it

could hold a special session.” Id. Admittedly, the forum

selection clause in Paolino expressly stated that “the courts

sitting in Kendall County, Texas, United States of America” would

have “exclusive jurisdiction.” Id. at 318 (emphasis added). But

we nevertheless find persuasive its distinction between courts

encompassing an area and those sitting in or hearing cases in an

area.

The instant case, however, presents an additional twist not

found in the Paolino decision. While the only currently completed,

functioning federal courthouse within the Sherman Division of the

United States District Court for the Eastern District of Texas—the

division that encompasses Collin County within its jurisdiction—is

located in Sherman, Texas, outside of Collin County, the Sherman

Division’s enabling statute states, “[c]ourt for the Sherman

Division shall be held at Sherman and Plano.” 28 U.S.C. §

124(c)(3) (emphasis added). Plano is located primarily, although

not completely, within Collin County. Thus, unlike the San Antonio

15
Division in Paolino, which encompassed Kendall County within its

jurisdiction but did not and was not statutorily directed to hold

court there, Congress instructed that the Sherman Division both

encompass Collin County within its jurisdiction and hold court in

Plano (as well as in Sherman)—and therefore hold court likely in

Collin County. Presently the Sherman Division district court does

not hear—and has never heard—cases in Plano because of the lack of

a place to do so (there never having been a federal district

courthouse in Plano).

While Congress’s mandate that the Sherman Division hold court

in Plano makes construction and application of the instant forum

selection clause more difficult than that of the clause in Paolino,

in this case we view as determinative the fact that

defendants–appellants Siemens and SAP never contemplated that the

instant action would be tried in a federal court within Collin

County’s confines; although Siemens and SAP both refer to or cite

28 U.S.C. § 124(c)(3) in their respective briefs, and Siemens

referred to that provision in its brief below, neither company

appears to have ever suggested that the Sherman Division actually

ought to hear the instant action in Plano.

As both Siemens and SAP point out, however, plans exist to

build a new federal courthouse in Plano, within Collin County, for

the Sherman Division of the Eastern District. Once the new federal

courthouse is built the district court that granted the motion to

remand in this case will hold court in Plano, which stretches into

16
both Collin and Denton Counties (Denton County also being in the

Sherman Division).

The planned courthouse’s completion date might well be

conclusive of removal rights in future suits under the County’s

contracts with SAP and Siemens. But it seems clear that neither

the district court nor Congress would have considered the district

court to be in violation of the Sherman Division’s enabling

statute, or of the Eastern District’s General Order No. 03-15

which reaffirmed the District’s prior resolution to “authoriz[e]

Plano as a place of holding court in the Sherman Division,”8 by

failing to hold court in Plano prior to the completion of a federal

district courthouse in which court could be held. We cannot say

that the enabling statute’s mandate that the Sherman Division

“shall hold court” in Plano can be read to become effective before

there is a place for the district court to hold court.9

8
General Order No. 03-15 is available at
http://www.txed.uscourts.gov/Rules/GeneralOrders/2003/go03-15.pdf. It was
entered on June 16, 2003, before the enabling statute was amended in December
2003 to include “Plano.”
9
An October 2006 press release, available at
http://www.samjohnson.house.gov/News/DocumentSingle.aspx?DocumentID=51199,
indicates that the federal government has leased land on which to build the
courthouse. This lease was signed in October 2006, but it appears that at the
time the design phase of the project to construct the courthouse had not yet
begun. The press release further indicates that occupancy of the courthouse
was estimated to be in the fall of 2007. Siemens and SAP removed this action
in April 2005, and we ordinarily analyze the propriety of removal as of the
removal date. The district court’s order to remand, dated January 2006,
accurately reflected that at the time of removal there was no federal
courthouse in Collin County. Furthermore, it appears that throughout the
parties’ presentation of their arguments to the district court, the parties
never considered that a courthouse would be completed within Collin County
during the pendency of this action.

17
 This would likely be a different case if, for example, there

had been a federal courthouse in Collin County prior to the

defendants–appellants’ removal of the action but the courthouse had

burned to the ground in a fire. Catastrophic events such as

Hurricane Katrina demonstrate that there may sometimes be reasons

beyond a party’s control that will deprive the party of its ability

to try a case in federal or state court in a particular area.

Here, however, there was not, and never had been, a functioning

federal courthouse, and no federal district court was then sitting

or had ever sat, in Collin County at the time that Siemens and SAP

removed the action. All of the parties assumed that it would be

impossible to try the case in federal court in Collin County; no

party argued that the federal courthouse could or would be

completed in time for a trial in this case.10

We consider the circumstances of this appeal to present a very

narrow, one-time question.11

CONCLUSION

10
It is true that the United States Bankruptcy Court for the Eastern
District of Texas currently sits in Plano and that the bankruptcy court was
probably hearing cases in Plano at the time this case was removed. But
Siemens and SAP did not raise the possibility that the district court could
hear their case in the bankruptcy court’s quarters until on appeal. Further,
it appears that they never expected this possibility to control the outcome of
the County’s motion to remand.
11
SAP also makes arguments related to interpreting the venue clause if
it is construed as ambiguous. Specifically, SAP argues that because the
County drafted the forum selection clause, if the provision is at all
ambiguous, it should be interpreted against the County and in favor of SAP and
Siemens. SAP argues further that under Texas law, when a contract provision
is ambiguous, extrinsic evidence is admissible to show the parties’ intent.
Because we necessarily conclude that the venue clause is unambiguous as
applied in these circumstances, we do not address these arguments.

18
 For the foregoing reasons, we affirm the district court’s

order of remand.

AFFIRMED.

19