Opinion
Civil Action No. 1:05-cv-2613-GET.
February 15, 2006
ORDER
The above-styled matter is presently before the court on plaintiff's motion to remand [docket no. 3].
Plaintiff filed the instant action in the State Court of DeKalb County on July 1, 2005, seeking damages under a contract it had with The Inn at Gulf Shores, Inc. ("The Inn"). The contract licensed a hotel operated by the Inn in Gulf Shores as a Holiday Inn or Crowne Plaza brand hotel. Specifically, the Inn was permitted to use the Holiday Inn, Crowne Plaza, and Holiday Inn Crowne Plaza service marks, services provided by plaintiff such as marketing, and systems operated by plaintiff such as the reservation system. The contract was guaranteed by Mark Goldstein. The Inn voluntarily terminated the agreement and acknowledged that it owed liquidated damages in the amount of $624,442.70. To satisfy its obligation, the Inn paid $200,000 and agreed to either open a replacement hotel at another location or pay remaining liquidated damages in the amount of $494,442.70. Plaintiff complains that the Inn has not opened a replacement or paid the remaining damages. Plaintiff also seeks attorneys fees pursuant to O.C.G.A §§ 13-1-11, 13-6-11. On October 11, 2005, defendants removed the action to federal court pursuant to 28 U.S.C. § 1441, alleging diversity jurisdiction under 28 U.S.C. § 1332. On November 10, 2005, plaintiff filed a motion to remand.
Discussion
Diversity jurisdiction exists where the parties are citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. Plaintiff does not dispute the existence of diversity of citizenship between parties or the amount in controversy. Rather, plaintiff contends that defendant Goldstein waived his right to remove pursuant to a forum selection clause in the Guaranty. "[I]n cases involving multiple defendants, all defendants must consent to removal." Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1044 (11th Cir. 2001). Consequently, if Goldstein is prevented by the Guaranty from agreeing to removal, defendants cannot meet the unanimity requirement and the action must be remanded. The Guaranty provides:
To the extent permitted by law, the undersigned (i) consent and submit, at [plaintiff]'s election and without limiting [plaintiff]'s rights to commence an action in any other jurisdiction, to the personal jurisdiction and venue of any courts (federal, state or local) situated in the County of DeKalb, State of Georgia; (ii) waive any claim, defense or objection in any such proceeding based on lack of personal jurisdiction, improper venue, forum non conveniens or any similar basis.
Defendants argue that nothing within the provision mandates that the case remain in state court or waives Goldstein's right to remove.
"[T]he determination of whether such a clause constitutes a waiver, in the context of removal based solely on diversity jurisdiction, is to be determined according to ordinary contract principles." Global Satellite Commc'n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1272 (11th Cir. 2004). The language of clause (i) in the contract does not clearly establish whether the parties intended to permit or prohibit jurisdiction by the federal court. The clause specifically includes the federal court as a possible forum, yet also requires courts to be "situated in DeKalb County." Although the cardinal rule of construing the contract against the drafter usually aids courts interpreting such ambiguity, the contract between the parties provides that "interpretation shall be based on the reasonable intention of the parties without interpreting any provision in favor of, or against, any party hereto by reason of the draftsmanship of the party or its position relative to the other party." See id. at 1274.
The most reasonable interpretation permits defendants to remove the action. The contract specifically includes federal court as a possible forum, and the fact that the federal courthouse for DeKalb County is not physically located in DeKalb County does not affect the substantive law applied in the case, nor the convenience of the parties insomuch as the counties are adjacent.
Even if the court does not rely on the language of clause (i), the waiver language in clause (ii) supports the conclusion that the contract does not foreclose removal. Plaintiff argues that the waiver provision in the contract is sufficient to waive Goldstein's right to remove. The provision waives Goldstein's "claims, defenses or objections based on lack of personal jurisdiction, improper venue, forum non conveniens or any similar basis." In Global Satellite, a similar waiver provision was at issue, in which the parties consented to waive "any issues regarding venue or in personam jurisdiction." Id. at 1273. The Eleventh Circuit held that the express waiver was clearly limited to the categories listed therein, and did not encompass the right to remove. Id. It distinguished the waiver at issue from one which waived the right to remove by "expressly waiving whatever rights may correspond to it by reason of its present or future domicile." Id., discussing Snapper, Inc. v. Redan, 171 F.3d 1249, 1260 (11th Cir. 1999). After considering the parties' arguments, the court finds that the waiver in the instant matter is more similar to the Global Satellite waiver, because it lists specific categories of defenses waived, than the waiver at issue in Snapper, which expressly included the basis for a right of removal.
"If [plaintiff] intended to permit suit only in the state courts of [Georgia] located in [DeKalb] County, as it claims, it could have easily stated that intention precisely." See Global Satellite, 378 F.3d at 1274. Accordingly, plaintiff's motion to remand [docket no. 3] is hereby DENIED.
Summary
Plaintiff's motion to remand [docket no. 3] is hereby DENIED.
SO ORDERED.