106 F.3d 318 (10th Cir. 1997), 96-1090, Excell, Inc. v. Sterling Boiler & Mechanical, Inc.

Docket Nº:96-1090.
Citation:106 F.3d 318
Party Name:EXCELL, INC., a Delaware corporation, Plaintiff-Counter-Defendant-Appellee, v. STERLING BOILER & MECHANICAL, INC., an Indiana corporation, Defendant-Counter-Claimant-Appellant.
Case Date:February 04, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 318

106 F.3d 318 (10th Cir. 1997)

EXCELL, INC., a Delaware corporation,

Plaintiff-Counter-Defendant-Appellee,

v.

STERLING BOILER & MECHANICAL, INC., an Indiana corporation,

Defendant-Counter-Claimant-Appellant.

No. 96-1090.

United States Court of Appeals, Tenth Circuit

February 4, 1997

Page 319

[Copyrighted Material Omitted]

Page 320

Alan C. Friedberg and Alicia B. Clark, of Pendleton, Friedberg, Wilson, Hennessey & Meyer, P.C., of Denver, Colorado, for the appellant.

Edward H. Flitton III and David S. Prince, of Holland & Hart, of Colorado Springs, Colorado for the appellee.

Before KELLY, McWILLIAMS, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Sterling Boiler & Mechanical, Inc. (Sterling) appeals the district court's order remanding this breach of contract action to Colorado state court, 916 F.Supp. 1063. Sterling also appeals the district court's award of attorney fees and costs to plaintiff Excell, Inc. (Excell). We affirm.

On April 15, 1995, Excell entered into a written contract with Sterling under which Excell agreed to provide consulting services to Sterling in return for monthly payments. Excell filed a complaint in the District Court of El Paso County, Colorado, on November 1, 1995, asserting Sterling had breached the contract by failing to pay for services. Sterling removed the action to federal district court on December 6, 1995, based on diversity of citizenship. On February 22, 1996, upon motion by Excell, the district court remanded the action to state court pursuant to an express forum selection clause in the parties' contract, which provides:

In the event that any dispute shall arise with regard to any provision or provisions of this Agreement, this Agreement shall be subject to, and shall be interpreted in accordance with, the laws of the State of Colorado. Jurisdiction shall be in the State of Colorado, and venue shall lie in the County of El Paso, Colorado.

916 F.Supp. at 1064.

Following remand, Excell submitted a statement of costs and fees to federal district court pursuant to 28 U.S.C. § 1447(c). On March 29, 1996, the federal district court granted fees and costs to Excell in the amount of $3,895.

I. Did the district court err in granting Excell's motion to remand?

The primary question raised by Sterling on appeal is whether the district court correctly interpreted the forum selection clause in the parties' contract to preclude removal of the case. According to Sterling, the clause is ambiguous and can be interpreted to allow venue in both state district court in El Paso County and in federal district court, which is also located in El...

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