838 F.2d 656 (2nd Cir. 1988), 23, Karl Koch Erecting Co., Inc. v. New York Convention Center Development Corp.
|Docket Nº:||23, 24, Dockets 87-7306, 87-7308.|
|Citation:||838 F.2d 656|
|Party Name:||KARL KOCH ERECTING CO., INC., Plaintiff-Appellant, v. NEW YORK CONVENTION CENTER DEVELOPMENT CORPORATION, Defendant-Appellee. NEW YORK CONVENTION CENTER DEVELOPMENT CORPORATION, Plaintiff-Appellee, v. KARL KOCH ERECTING CO., INC., and Federal Insurance Company, Defendants-Appellants.|
|Case Date:||February 03, 1988|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Nov. 2, 1987.
Roger S. Markowitz, New York City (Tony Berman, Howard Burger, Berman, Paley, Goldstein & Berman, New York City, of counsel), for defendants-appellants.
Joseph P. Dineen, New York City (Jerome Reiss, Kalvin Kamien, Max E. Greenberg, Cantor & Reiss, New York City, of counsel), for plaintiff-appellee.
Before PIERCE, WINTER and MINER, Circuit Judges.
WINTER, Circuit Judge:
These appeals concern the meaning and validity of a forum-selection clause. The New York Convention Center Development Corporation ("NYCCDC"), a public benefit corporation organized to develop the Jacob K. Javits Convention Center in New York City, brought a suit against a contractor working on the Center, Karl Koch Erecting Co., Inc. ("Koch"), in state court. Koch then brought a diversity action against NYCCDC in the Southern District and removed NYCCDC's state suit to that court. On NYCCDC's motion to dismiss the former action and remand the latter, Judge Sweet held that the forum-selection clause applied both to Koch's original diversity action and to its removal of NYCCDC's suit from state court. He also held that Koch, a sophisticated contractor, had failed to make a strong showing that the forum-selection clause should be set aside as unreasonable, unjust or contrary to the public policy of the forum. Karl Koch Erecting Co. v. New York Convention Center Dev. Corp., 656 F.Supp. 464, 466-67 (S.D.N.Y.1987). We affirm.
The relevant facts are not in dispute. On or about September 5, 1980, Koch, a Delaware corporation with its principal place of business in New Jersey, entered into a contract with the NYCCDC to design, manufacture and construct the space frame for
the Convention Center. Article 30.10 of the contract, entitled "Limitations on Actions," provided in part that: "No action or proceeding shall be commenced by [Koch] against [NYCCDC] except in the Supreme Court of the State of New York, County of New York." On November 14, 1986, after problems in the construction of the space frame had delayed completion of the Center, the NYCCDC brought suit against Koch in New York State Supreme Court, County of New York, seeking damages totalling more than $50 million for breach of contract, breach of express and implied warranties, negligence, fraud and misrepresentation. Federal Insurance Company, Koch's performance bond surety on the project, was also named as a defendant.
On November 20, 1986, Koch brought a separate diversity action against NYCCDC in the Southern District claiming damages of more than $13 million. On November 25, Koch removed NYCCDC's suit from the state court to the Southern District. NYCCDC then moved to dismiss Koch's diversity suit pursuant to the forum-selection clause and to remand the removed action to state court under 28 U.S.C. Sec. 1447(c) (1982). Both motions were granted on March 19, 1987, and Koch appealed.
Before turning to the merits, we must determine whether we have appellate jurisdiction over Judge Sweet's remand order. With the exception of civil rights cases, "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. Sec. 1447(d). The Supreme Court held in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), that Section 1447(d) was not a blanket rule. In that case, the district court had ordered remand solely because its docket...
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