378 F.3d 1269 (11th Cir. 2004), 03-12723, Global Satellite Communication Co. v. Starmill U.K. Ltd.

Docket Nº:03-12723.
Citation:378 F.3d 1269
Party Name:GLOBAL SATELLITE COMMUNICATION CO., d.b.a. Group GSC, a Florida corporation, Plaintiff-Counter-Defendant-Appellee, v. STARMILL U.K. LIMITED, a foreign corporation, Defendant-Counter-Claimant-Appellant.
Case Date:July 29, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1269

378 F.3d 1269 (11th Cir. 2004)

GLOBAL SATELLITE COMMUNICATION CO., d.b.a. Group GSC, a Florida corporation, Plaintiff-Counter-Defendant-Appellee,

v.

STARMILL U.K. LIMITED, a foreign corporation, Defendant-Counter-Claimant-Appellant.

No. 03-12723.

United States Court of Appeals, Eleventh Circuit

July 29, 2004

Page 1270

Jack H. Bariton, Plantation, FL, for Plaintiff-Counter-Defendant-Appellee.

Julissa Rodriguez, Samuel J. Rabin, Jr., P.A., Elliot H. Scherker, Greenberg, Traurig et. al, Miami, FL, for Defendant-Counter-Claimant-Appellant.

Appeal from the United States District Court for the Southern District of Florida.

Before BIRCH, KRAVITCH and OAKES [*], Circuit Judges.

OAKES, Circuit Judge:

Defendant-appellant Starmill U.K. Limited ("Starmill") appeals from the April 22, 2003, order of Alan S. Gold, United States District Judge for the Southern District of Florida, remanding this breach of contract action to the Florida state court from which it had been removed. We reverse the order and remand to the district court for further proceedings.

I.

Plaintiff-appellee Global Satellite Communication Co. ("Global Satellite"), a Florida corporation, filed suit in the Florida Circuit Court of the Seventeenth Judicial Circuit, Broward County, for breach of a contract involving cellular telephones ordered by Starmill. Starmill, incorporated under the laws of England and Wales with its principal place of business in London, filed notice of removal on grounds of diversity jurisdiction in the courthouse for the United States District Court in Fort Lauderdale, Florida, in Broward County. The case was assigned to Judge Gold, who maintains chambers at the federal courthouse in Miami, Florida, in Dade County. Global moved to remand the action, and Judge Gold granted the motion, holding that the forum selection clause in the parties' contract mandated venue in state court in Broward County, and that defendants

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had contractually waived their removal rights.

II.

We have jurisdiction to review the instant remand order. Snapper, Inc. v. Redan, 171 F.3d 1249, 1260 (11th Cir. 1999) (28 U.S.C. § 1447(d) does not bar review of remand order based upon a forum selection clause); Florida Polk County v. Prison Health Servs., Inc., 170 F.3d 1081, 1083 (11th Cir. 1999) (same). We review the construction of a written contract de novo. Nat'l Fire Ins. Co. of Hartford v. Fortune Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003). "[I]n the context of removal based solely on diversity jurisdiction, ordinary contract principles govern a contractual waiver" of removal. Snapper, 171 F.3d at 1261 (footnote omitted). However, when ordinary contract principles fail to elucidate a single reasonable interpretation for an ambiguous provision, and instead the provision is " 'subject to opposing, yet reasonable interpretation, an interpretation is preferred which operates more strongly against the party from whom the words proceeded.' " Citro Florida, Inc. v. Citrovale, S.A., 760 F.2d 1231, 1232 (11th Cir. 1985) (per curiam) (quoting Zapata Marine Serv. v. O/Y Finnlines, Ltd., 571 F.2d 208, 209 (5th Cir. 1978)).

The relevant portion of the contract between Global Satellite and Starmill, Section 18, entitled "Governing Law," states:

This Agreement shall be construed and enforced in accordance with the laws of the United States of America. Venue shall be in Broward County, Florida. In the event of litigation, the prevailing party shall be entitled to reasonable attorney's fees both at the trial and appellate levels. The parties to this agreement herein expressly waive the right to contest any issues regarding venue or in personam jurisdiction and agree in the event of litigation to submit to the jurisdiction of Broward County, Florida.

A defendant's right to remove an action against it from state to federal court "is purely statutory and therefore its scope and the terms of its availability are entirely dependent on the will of Congress." 14B Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure§ 3721, pp. 285-86 (3d ed.1998). The federal general removal statute, 28 U.S.C. § 1441, permits removal of certain actions from state court "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) (2003). Section 1441(a), and not the ordinary federal venue statute, 28 U.S.C. § 1391, governs venue in removed cases. See Polizzi v. Cowles Magazines, Inc. 345 U.S. 663, 665-66, 73 S.Ct. 900, 97 L.Ed. 1331 (1953) ("even on the question of venue, § 1391 has no application to this case because this is a removed action.... Section 1441(a) expressly provides that the proper venue of a removed action is 'the district court of the United States for the district and division embracing the place where such action is pending.' "); Peterson v. BMI Refractories, 124 F.3d 1386, 1392-94 (11th Cir. 1997) (following Polizzi 's holding that § 1441(a) is a venue provision). Defendants are also instructed to file notice of removal in that venue. 28 U.S.C. § 1446(a) (2003) (a defendant "shall file in the district court of the United States for the district and division within which such action is pending").

Broward County is one of nine counties comprised in the Southern District of Florida. 28 U.S.C. § 89(c) (2003) (listing counties of "Broward, Dade, Highlands, Indian River, Martin, Monroe, Okeechobee, Palm Beach and Saint Lucie."). The district courts for the Southern District of Florida are located in the cities of Fort Lauderdale

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(in Broward County), Fort Pierce (in Saint Lucie County), Key West (in Monroe County), Miami (in Dade County), and West Palm Beach (in Palm Beach County). See id. The Local Rules for the Southern District of Florida subdivide the district and provide for assignment of cases:

The District is divided into five...

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