Milk 'N' More, Inc. v. Beavert, No. 88-2746

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore HOLLOWAY and McWILLIAMS, Circuit Judges, and BABCOCK; HOLLOWAY
Citation963 F.2d 1342
PartiesMILK 'N' MORE, INC., a corporation, Plaintiff-Appellee, v. Jack D. BEAVERT, Defendant-Appellant.
Docket NumberNo. 88-2746
Decision Date08 May 1992

Page 1342

963 F.2d 1342
MILK 'N' MORE, INC., a corporation, Plaintiff-Appellee,
Jack D. BEAVERT, Defendant-Appellant.
No. 88-2746.
United States Court of Appeals,
Tenth Circuit.
May 8, 1992.

Page 1343

Gregory M. Hopkins of Hopkins & Erwin, P.A., Little Rock, Ark., for defendant-appellant.

Thaine Q. Blumer and Rik N. Siro of Blumer & Nally, Kansas City, Mo., for plaintiff-appellee.

Before HOLLOWAY and McWILLIAMS, Circuit Judges, and BABCOCK, District Judge. *

HOLLOWAY, Circuit Judge

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant-appellant Jack D. Beavert (Beavert) appeals an order remanding this breach of contract action to a Kansas state court. The order was based on the court's view that the remand was required by an enforceable forum selection clause in the agreement. We agree and affirm.


Under the 1986 written contract, Beavert agreed to lease, with an option to purchase, some convenience stores from plaintiff-appellee Milk 'N' More, Inc. (Milk 'N' More), in southwestern Arkansas. A clause in the agreement provided that:

The parties herein have mutually agreed that said lease and the purchase option agreement contained herein, where applicable, shall be governed by the laws of the State of Kansas and the parties further agree that venue shall be proper under this agreement in Johnson County, Kansas.

I R. Doc. 1, Ex. A at 7 (emphasis added).

The instant suit was commenced by Milk 'N' More in the state District Court of Johnson County, Kansas. Following removal by Beavert, the district court was confronted with a motion by Beavert to transfer the suit to the United States District Court for the Western District of Arkansas, or alternatively to stay the proceedings until completion of litigation pending

Page 1344

in Arkansas. About a month later, Milk 'N' More filed a motion for the federal court in Kansas to remand the case to the state District Court of Johnson County, Kansas, arguing that Milk 'N' More was entitled to such remand under the clause quoted above. Milk 'N' More maintains that the clause is a valid and enforceable forum selection clause.

The federal district court granted the motion to remand on the ground that the contractual agreement contained an enforceable forum selection clause, relying on the principle that forum selection clauses are "prima facie valid and should be enforced" unless shown to be unreasonable. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972); see I R. Doc. 20, at 1. Concluding that the provision was intended to benefit Milk 'N' More, the district court reasoned that forum selection clauses "should be enforced when invoked by the party for whose benefit they are intended." Furry v. First Nat'l Monetary Corp., 602 F.Supp. 6, 9 (W.D.Okla.1984); see I R. Doc. 20, at 2. The district court said that Beavert's motion to transfer or stay was moot in view of its decision to grant the motion to remand, and accordingly the motion to transfer or stay was denied. I R. Doc. 20, at 3.

On appeal, Beavert contends that the district judge erred in construing the clause as a mandatory agreement between the parties to resolve any disputes under the contract exclusively in the state court in Johnson County, Kansas; he says instead that the clause should have been construed as merely a permissive designation on venue. Beavert also contends that the district judge failed to properly consider his motion to transfer or stay the action.


While the parties have not suggested any doubt concerning our appellate jurisdiction, we have considered, and feel it proper to discuss, two questions: (1) whether the remand order could not be reviewed on appeal due to the prohibitions of 28 U.S.C. § 1447(d); and (2) whether the remand order in question was appealable as a final decision or under an exception to the final judgment rule. For reasons that follow, we are satisfied that we properly have appellate jurisdiction here.

The removal statute in force when the remand order in question was entered obligated a federal district court to remand to state court an action that "was removed improvidently and without jurisdiction." 28 U.S.C. § 1447(c), amended by Pub.L. No. 100-702, tit. X, § 1016(c), 102 Stat. 4670 (1988). A district court's order remanding a case on such statutory grounds is not reviewable. 28 U.S.C. § 1447(d); Midland Mortgage Co. v. Winner, 532 F.2d 1342, 1344 (10th Cir.1976); see also Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976). In the instant case it is clear that the district judge remanded the case after concluding that the removal was contrary to the contractual forum selection clause. The judge granted the motion to remand in order to enforce the clause, not on the basis of one of the grounds specified in former § 1447(c). Accordingly, the remand order is appealable. See Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 276-77 (9th Cir.1984) (holding a remand to enforce a forum selection clause was not based on a ground specified in § 1447(c)); see also Karl Koch Erecting Co. v. New York Convention Ctr. Dev. Corp., 838 F.2d 656, 658 (2d...

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