428 F.3d 921 (10th Cir. 2005), 03-1492, American Soda, LLP v. U.S. Filter Wastewater Group, Inc.

Docket Nº:03-1492.
Citation:428 F.3d 921
Party Name:AMERICAN SODA, LLP, a Colorado corporation, Plaintiff-Appellee, v. U.S. FILTER WASTEWATER GROUP, INC., a Delaware corporation, Defendant-Appellant.
Case Date:November 07, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 921

428 F.3d 921 (10th Cir. 2005)

AMERICAN SODA, LLP, a Colorado corporation, Plaintiff-Appellee,

v.

U.S. FILTER WASTEWATER GROUP, INC., a Delaware corporation, Defendant-Appellant.

No. 03-1492.

United States Court of Appeals, Tenth Circuit.

Nov. 7, 2005

Page 922

[Copyrighted Material Omitted]

Page 923

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO, D.C. No. 03-MK-1579 (CBS)

Submitted on the briefs:we[*] Michael G. Bohn, Griffith A. Kundahl, and Bret M. Heidemann, Campbell, Bohn, Killin, Brittan & Ray, LLC, Denver, Colorado for Defendant-Appellant.

Lawrence R. Green, Balcomb & Green, P.C., Glenwood Springs, Colorado, for Plaintiff-Appellee.

Before KELLY, SEYMOUR, and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.

Defendant U.S. Filter Wastewater Group, Inc. (U.S. Filter) appeals the district court's order remanding this breach of contract action to state court based on a mandatory forum selection clause in the parties' contract. U.S. Filter also appeals the district court's award of attorneys' fees and costs to plaintiff American Soda, LLP (American Soda). Because we agree with the district court that the parties' contract contained a mandatory forum selection clause designating Colorado state court as the exclusive forum for resolution of disputes arising out of their contract, we affirm the remand order. We also conclude this court lacks jurisdiction to review the district court's order concerning attorneys' fees.

Background

In July 2003, American Soda, a mining company, filed a breach of contract action against U.S. Filter in the Garfield County District Court in Glenwood Springs, Colorado. American Soda alleges that U.S. Filter failed to perform under an April 13, 2001, contract pursuant to which U.S. Filter was to construct and integrate a Deca Crystallizer system into American Soda's processing facilities in Garfield County, Colorado. The purpose of the Deca Crystallizer was to enhance the production rate and product quality of American Soda's mining operations. U.S. Filter timely removed the action to the United States District Court for the District of Colorado based on diversity jurisdiction pursuant to 28 U.S.C. § 1332, §1441 and § 1446. On October 20, 2003, upon motion by American Soda, the district court remanded the case to state court, finding that U.S. Filter waived its right to remove by a mandatory forum selection clause in the parties' contract. The clause at issue is contained in paragraph 20.0 of Exhibit B to the parties' agreement. It provides:

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Both Contractor and Company hereby submit to the jurisdiction of the Courts of the State of Colorado and agree that the Courts of the State of Colorado/Arbitrator shall be the exclusive forum for the resolution of any disputes related to or arising out of this Term Agreement.

Aplt. App. at 59.

The district court held that by using this language the parties unequivocally and exclusively designated any court of the State of Colorado for the resolution of disputes arising out of the contract and that the United States District Court was not a court of the State of Colorado. The court further held that enforcement of the forum selection clause was not unreasonable under the circumstances. Accordingly, the district court concluded that remand was proper.

In addition, pursuant to 28 U.S.C. §1447(c), the court ordered U.S. Filter to pay all costs and attorneys' fees incurred by American Soda in connection with the removal. Thereafter, American Soda filed an attorneys' fees affidavit. However, to date, the district court has not fixed the amount of attorneys' fees and costs to be awarded.

Appellate Jurisdiction

On December 2, 2003, we issued an order directing the parties to show cause why this appeal should not be dismissed for lack of appellate jurisdiction. Following briefing, we reserved judgment on the issues of whether the district court's remand order is appealable and whether the award of attorneys' fees and costs is appealable where no amount certain has been determined by the district court. We now hold that the remand order is appealable, but that the portion of the district court's order regarding attorneys' fees and costs is not.

As we have previously stated, the threshold question in an appeal of a remand order is whether the district court's decision is reviewable notwithstanding the proscription set forth in 28 U.S.C. § 1447(d). SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578, 580 (10th Cir.1997). Section 1447(d) Section 1447(d) provides that "[a]n...

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