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Frosty Valley Country Club Inc. v. Integrity Golf Company, LLC

United States District Court, M.D. Pennsylvania

June 27, 2018



          Matthew W. Brann United States District Judge

         Before the Court for disposition is Plaintiff Frosty Valley Country Club, Inc.'s Motion for Remand. For the following reason, this Motion will be granted and this case remanded to the Court of Common Pleas of Montour County, Pennsylvania.

         I. BACKGROUND

         Plaintiff Frosty Valley Country Club, Inc. (“Plaintiff”) brings this suit alleging (1) fraud against Defendant Eugene Garrote (“Defendant Garrote”); (2) breach of contract against Defendant IGC-Frosty Valley Country Club, LLC (“Defendant IGC-Frosty Valley”); (3) piercing the corporate veil against Defendants Garrote and Integrity Golf Company, LLC (“Defendant Integrity Golf”), and (4) civil conspiracy against all Defendants.[1] The relevant factual underpinning of these claims is as follows.

         Plaintiff Frosty Valley Country Club, Inc. is a country club located in Danville, Pennsylvania.[2] In 2015, Plaintiff explored the possibility of hiring a qualified and experienced golf-club management company.[3] Thereafter, based on numerous representations by Defendant Eugene Garrote, the managing member of Defendant Integrity Golf, LLC, Plaintiff entered into a Lease Agreement dated September 21, 2015 with Defendant IGC-Frosty Valley.[4] While not directly pertinent to the disposition of the Motion to Remand, Plaintiff alleges, inter alia, that IGC-Frosty Valley subsequently breached this Lease Agreement by (1) failing to pay lease fees to Plaintiff, real estate property taxes, and sales and use taxes on behalf of the Club, and expenses of the Club; (2) failing to establish and fund the Reserve for Capital Improvements, and (3) unilaterally terminating the Lease Agreement well prior to the expiration of its 10-year term.[5] Plaintiff also alleges that Defendant Garrote is liable for fraud and misrepresentations associated with Defendant Integrity Golf's operation and management of the Club.[6] Finally, Plaintiff lodges a civil conspiracy claim against all Defendants.[7]

         This action, commenced in the Court of Common Pleas of Montour County, Pennsylvania was timely removed to this Court on November 20, 2017.[8] Shortly thereafter, Defendants filed a Motion to Dismiss for failure to state a claim.[9]

         Plaintiff followed by filing a Motion to Remand to the Court of Common Pleas of Montour County.[10] The basis for this Motion is a forum selection clause in the Lease Agreement between Plaintiff and Defendant IGC-Frosty Valley which Plaintiff argues prevents removal of this action.[11] This forum selection clause, Section 17.9 of the Lease Agreement, provides as follows:

The venue of any suit or proceeding brought for the enforcement of or otherwise with respect to this Lease shall always be lodged in the State Courts of the Pennsylvania Judicial Circuit in and for Montour County, Pennsylvania; or if the Circuit Court does not have jurisdiction, then before the United States District Court for the District of Pennsylvania (___Division); or if neither of such courts shall have jurisdiction, then before any other court sitting in Montour County, Pennsylvania, having subject matter jurisdiction, regardless of whether, under any applicable principle of law, venue may also be properly lodged in the courts of any other federal, state or county jurisdiction. . . .

         This motion to remand has since been fully briefed and is now ripe for disposition.[12]

         II. LAW

         Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants.” However, if before the entry of final judgment, it appears that the district court lacks subject matter jurisdiction over the matter, that case must be remanded to the state court.[13] When faced with a motion for remand, “the party asserting federal jurisdiction . . . bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court, ”[14] and “any doubt about the right of removal requires resolution in favor of remand.”[15]

         III. ANALYSIS

         A. Whether Remand is Appropriate Because a Forum Selection Clause Divests this Court of Subject Matter Jurisdiction

         The threshold question in this matter concerns whether remand is necessary because this Court lacks subject matter jurisdiction pursuant to a forum selection clause contained within the Lease Agreement between Plaintiff and Defendant IGC-Frosty Valley. The Notice of Removal in this case stipulates, and the parties agree, that this Court's jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. §§ 1332(a), 1441, & 1446.[16] Removal of an action to federal court under 28 U.S.C. § 1446 based on diversity jurisdiction ordinarily requires all defendants to give consent.[17] Indeed, “[u]nder this ‘rule of unanimity,' all defendants must join in the notice of removal or otherwise consent to the removal within the thirty-day period set forth in Section 1446(b) in order to perfect removal.”[18] A defendant may however contractually waive his right to remove an action brought in state court.[19] A contractual waiver of the right to remove exists where a valid and enforceable forum selection clause excludes federal jurisdiction.[20]

         Here, the Defendants argue that the forum selection clause at issue does not prohibit removal of this action, but rather precludes the parties from filing suit in federal court.[21] Indeed, in the absence of any intimation that this clause is unreasonable or not mandatory, they argue that, because the term “lodged” means “to file” or “commence” a lawsuit, the plain meaning of the forum selection clause does not prohibit Defendant IGC-Frosty Valley from consenting to removal following the proper commencement of the action in Montour County court.[22] To support this argument, Defendants attempt to factually distinguish the cases cited by Plaintiff and the underlying language of the forum selection clauses at issue therein.[23]

         To determine whether a party has contractually waived the right to remove an action to federal court, a court should “‘simply . . . use[e] the same benchmarks of construction and, if applicable, interpretation as it employs in resolving all preliminary contractual questions.' ”[24] A court should “look to the ‘plain and ordinary meaning' of the forum selection clause to determine whether it amounted to a waiver of the right to remove.”[25] Here, I find that the plain language of forum selection clause forecloses the removal of this action. Indeed, while I recognize the argument made by Defendants, acceptance of this argument would contradict the self-evident purpose of this forum-selection clause. Further, the case law cited by Plaintiff dispelling this argument is highly persuasive.

         For example, in Karl Koch Erecting Co. v. New York Convention CenterDevelopment Corporation, the United States Court of Appeals for the Second Circuit held that a similar forum selection clause which stated that “[n]o action or proceeding shall be commenced ... except in the Supreme Court of the State of New York, County of New York, ” meant that an action brought in that court could not properly be removed to federal ...

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