United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 21, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-40858
Summary Calendar
RAYMOND DIXON,
Plaintiff-Appellee,
versus
TSE INTERNATIONAL INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:
The sole issue in this appeal is whether the contract entered
into by the plaintiff, Raymond Dixon, and the defendant, TSE
International, waived TSE’s right to remove this suit to federal
court. The district court concluded that it did, and we agree.
On January 10, 2002, Dixon, a Texas resident, filed suit
against TSE, a Louisiana corporation, in the district court of San
Augustine County, Texas. The petition asserted claims for breach
of contract, fraud, and misrepresentation concerning royalties
allegedly due from the sale of a certain Tree Trimmer product sold
by TSE.
On February 13, 2002, TSE removed the case to the United
States District Court for the Eastern District of Texas. Shortly
thereafter, Dixon filed a motion to remand, arguing that TSE was
contractually bound to have the dispute litigated in Texas state
court. The district court interpreted the contractual provision
cited by Dixon and agreed, finding that per the contract TSE had
waived its rights to defend suit in federal court.
Neither party disputes that the contract on which the suit is
based is an October 31, 1986 Technical Information and Patent
License Agreement entered into by Dixon and TSE. The section of
the contract in dispute provides:
This Agreement shall be deemed to be made in Texas,
U.S.A., and shall be governed by and construed in
accordance with the laws of the State of Texas, U.S.A.,
as if it were made and wholly performed there[;]
provided, however, that all questions concerning the
construction and effect of PATENTS shall be governed by
the laws of the country where the PATENT is issued. The
Courts of Texas, U.S.A., shall have jurisdiction over all
controversies with respect to the execution,
interpretation or performance of this Agreement, and the
parties waive any other venue to which they may be
entitled by virtue of domicile or otherwise.
The district court held that this contractual provision required
remand because it mandated that all disputes be litigated in the
Texas state court. Although TSE argued that the provision should
be read to include both state and federal courts in Texas, the
trial court concluded that “the word ‘of’ is ‘used as a function
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word to indicate belonging or a possessive relationship,’” and that
“the federal courts of the Eastern District of Texas are not courts
of Texas because they do not belong to Texas, but rather are courts
of the United States.”
We have jurisdiction to entertain this appeal of a contractual
remand order.* The district court correctly interpreted the
contract at issue. Federal district courts may be in Texas, but
they are not of Texas. Black’s Law Dictionary defines “of” as
“denoting that from which anything proceeds; indicating origin,
source, descent.”** Federal courts indisputably proceed from, and
find their origin in, the federal government, though located in
particular geographic regions. By agreeing to litigate all
relevant disputes solely in “the Courts of Texas,” TSE waived its
right to removal. The contractual remand order was proper.
AFFIRMED.
*
Waters v. Browning-Ferris Indus., Inc., 252 F.3d 796, 797
(5th Cir. 2001)
(“Contractual remand orders are reviewable by direct appeal.”).
**
BLACK’S LAW DICTIONARY 1232 (4th ed. 1968).
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