[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 12, 2008
No. 07-13920 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 07-01113-CV-ORL-31-DAB
OCWEN ORLANDO HOLDINGS CORP.,
a Florida corporation,
Plaintiff–Appellee,
versus
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company,
d.b.a. Behringer Harvard,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 12, 2008)
Before BARKETT, FAY and STAPLETON,* Circuit Judges.
*
Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit Court
of Appeals, sitting by designation.
BARKETT, Circuit Judge:
Ocwen Orlando Holdings Corp. and Harvard Property Trust, LLC entered
into an agreement on April 27, 2007 for the purchase of property in Orange
County, Florida. In relevant part and in its original capitalization,1 the agreement
contained the following provision:
SELLER AND PURCHASER, WAIVE ANY OBJECTION TO THE
VENUE OF ANY ACTION FILED IN ANY COURT SITUATED IN
THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED
AND WAIVE ANY RIGHT TO TRANSFER ANY SUCH ACTION
FILED IN ANY COURT TO ANY OTHER COURT.
Shortly after entering into the agreement, Ocwen sued Harvard in Orange County
Circuit Court for declaratory relief and breach of contract. Harvard removed the
suit to federal court, the district court remanded it to state court on the basis of the
above-quoted language in the agreement, and Harvard now appeals.
Harvard argues that the language of the forum selection clause—“waive any
right to transfer”—waived only its right to transfer the suit for the convenience of
the parties and witnesses but did not waive its right to remove the case from state
to federal court.
Forum selection clauses are interpreted according to ordinary contract
principles and may constitute waivers of the right to remove. Global Satellite
1
Ocwen argues that the conspicuous capitalization of the forum selection clause in the
agreement reinforces its importance. We do not consider that argument here.
2
Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271–72 (11th Cir. 2004);
Snapper, Inc. v. Redan, 171 F.3d 1249, 1260–61 (11th Cir. 1999) (“We need not
decide whether the clause rises to the level of a clear and unequivocal waiver
because we do not agree that such a high standard is required or desirable.”). They
are frequently categorized as either permissive or mandatory. “A permissive
clause authorizes jurisdiction in a designated forum but does not prohibit litigation
elsewhere. A mandatory clause, in contrast, ‘dictates an exclusive forum for
litigation under the contract.’” Global Satellite, 378 F.3d at 1272 (quoting Snapper,
171 F.3d at 1262 n.24). Notwithstanding this oft-repeated taxonomy, courts have
implicitly recognized an intermediate category that provides for permissive
jurisdiction in one forum that becomes mandatory upon the party sued. In
Snapper, for example, we found that although the contract at issue permissively
authorized suit in one forum, the forum became “‘mandatory’ as to the [parties
sued] because it requires an absolute submission by them to the jurisdiction of
whichever of these fora [the suing party] chooses.” 171 F.3d at 1262.
The forum selection clause at issue here is likewise one such hybrid clause.
The first portion of it is permissive. A party need not sue in Orange County,
Florida, but if a suit is initiated there, the defendant’s consent to venue in Orange
County is contractually provided. The second portion, however, waives the
3
parties’ rights to “transfer” the suit, when filed, to “any other court.” To “transfer”
means to “convey or remove from one place or one person to another.” Black’s
Law Dictionary 1536 (8th ed. 2004). The clause is not susceptible to more than
one interpretation; therefore, its plain meaning governs. Based upon the plain
meaning of the word “transfer,” we find that the forum selection clause waived
Harvard’s right to remove in addition to its right to transfer for the convenience of
the parties and witnesses.
AFFIRMED.
4