United States District Court, S.D. Ohio, Western Division
ORDER DENYING PLAINTIFFS' MOTION TO REMAND (DOC.
Timothy S. Black United States District Judge
civil case is before the Court on Plaintiffs' motion to
remand (Doc. 15) and the parties' responsive memoranda
(Docs. 19, 21, 24).
The Bidwell Family Corporation, an aluminum-extrusion
company, and its shareholders (“Bidwell”), filed
this action against Defendants, Shape Corp. and Magnode, LLC
(“Shape”), in the Butler County Court of Common
Pleas in anticipation of an alleged breach of the agreement
governing Bidwell's sale of assets to Shape. (Doc. 1-3).
The Asset Purchase Agreement (“agreement”)
governing this multimillion-dollar sale contains a forum
selection clause, which states as follows:
ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR BASED
UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED
IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA O3R THE
COURTS OF THE STATE OF OHIO IN EACH CASE LOCATED IN THE
COUNTY OF BUTLER, AND EACH PARTY HERETO IRREVOCABLY SUBMITS
TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH
SUIT, ACTION, OR PROCEEDING . . . . THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE
LAYING OF VENUE OF ANY SUIT, ACTION, OR ANY PROCEEDING IN
SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR
CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION, OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
(Doc. 1-3 at 104-105, § 11.10(b)). Defendants timely
removed the case to this Court on March 14, 2019. (Doc. 1).
Plaintiffs seek to enforce the forum selection clause and to
remand the case to Butler County. (Doc. 15).
argue that pursuant to the language of the clause, Defendants
have waived their right to removal, having agreed to
“submit to the exclusive jurisdiction of”
federal courts or the state courts of Ohio “in each
case located in the county of Butler.” (Id.).
Because there is no federal court physically located in
Butler County, Plaintiffs argue that the parties agreed to
the exclusive jurisdiction of only state courts located in
Butler County. (Id. at 8-9). Plaintiffs also argue
Defendants have waived removal based on the language of the
clause stating that “the parties hereto irrevocably and
unconditionally waive any objection to the laying of venue of
any suit . . . in such courts.” (Id. at 10).
assert that the clause does not constitute a “clear and
unequivocal” waiver of the right to remove, as is
required under Sixth Circuit precedent. (Doc. 19). In
Defendants' view, the phrase “in each case located
in the County of Butler” modifies only “the
courts of the state of Ohio, ” such that the line
should be read as follows: “each party hereto
irrevocably submits to the exclusive jurisdiction of
either “the federal courts of the United
States of America” or “the courts of the
state of Ohio in each case located in the county of
Butler.” (Id. at 9-10). In the alternative,
Defendants suggest that because “[n]either party would
ever voluntarily and willingly agree to include a provision
that on its face was a complete nullity, ” the
agreement could also be read as including federal courts
covering or having jurisdiction over Butler County, not just
federal courts physically located in Butler County-of which
there are none. (Id. at 11). For the reasons stated
below, Plaintiffs' motion to remand is denied.
right to removal provided by 28 U.S.C. § 1441 states in
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 where such
action is pending.
28 U.S.C. § 1441(a). Pursuant to the removal statute, a
“defendant is entitled to have the suit removed to a
proper federal court as a matter of right, on complying with
the conditions prescribed by the statute.” Regis
Assocs. v. Rank Hotels (Mgmt.), Ltd., 894 F.2d 193, 195
(6th Cir. 1990). When the requirements are met, this right
“is absolute.” Id.
defendant may waive the right to removal by way of a
contractual provision. However, such a waiver must be
“clear and unequivocal.” Cadle Co. v. Reiner,
Reiner, & Bendett, P.C., 307 Fed.Appx. 884, 886 (6th
Cir. 2009); see also EBI-Detroit, Inc. v. City of
Detroit, 279 Fed.Appx. 340, 347 (6th Cir. 2008). The
Sixth Circuit's standard for demonstrating waiver of
removal is more stringent than that of many other circuits.
See Zehentbauer Family Land LP v. Chesapeake Expl.,
LLC, No. 4:15-cv-2449, 2016 WL 3903391, at *2 (N.D. Ohio
July 19, 2016) (citing LaSalle Grp., Inc. v. Tiger
Masonry, Inc., No. 10-11328, 2010 WL 4167257, at *3
(E.D. Mich. Oct. 15, 2010)). In Cadle, the Sixth
Circuit found waiver lacking where the relevant forum
selection clause stated, “[a]ll disputes . . . shall be
resolved in the Newton Falls, Ohio Municipal Court or the
Trumbull County, Ohio Common Pleas Court.” 307
Fed.Appx. at 885. The Court reasoned that “the forum
selection clause at issue here neither mentions removal nor
sets forth an explicit waiver of that right by [the
defendant].” Id. at 888.
principles of contract interpretation apply when determining
whether a clause explicitly waives the right of
removal.” Id. at 886. Thus, the language
“should be given its ordinary meaning, the intent of
the parties is ...