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NEWLY WEDS FOODS, INC. v. A. M. TODD GROUP

United States District Court, N.D. Illinois


February 18, 2004.

NEWLY WEDS FOODS, INC., a Delaware corporation, Plaintiff,
v.
A. M. TODD GROUP, INC., a Michigan corporation, Defendant

The opinion of the court was delivered by: JAMES MORAN, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Newly Weds Foods, Inc. filed this action against defendant A.M. Todd Group, Inc. in the Circuit Court of Cook County, Illinois, alleging breach of contract Defendant removed the case to this court and plaintiff filed a motion to remand, arguing that the purchase agreement prohibits removal. For the following reasons, plaintiff's motion is denied.

Plaintiff's claims concern alleged violations of a purchase agreement executed by the parties on October 1, 2000. Section 11.13 of that agreement provides:

11.13 Submission to Venue. Purchaser and Seller hereby irrevocably submit to the exclusive jurisdiction of any state court located within the County of Cook, State of Illinois, or any federal court within the Northern District of Illinois. Purchaser and Seller hereby irrevocably acknowledge that (1) the sole and exclusive appropriate venue for any suit or proceeding shall be in such a court, (ii) all claims shall be heard and determined exclusively hi such a court, (iii) any such court shall have exclusive jurisdiction over the person of Purchaser and Seller and (iv) each hereby waives any and all objections to personal or subject matter jurisdiction as they may relate to an application for such injunctive relief in a suit or proceeding brought before such a court in accordance with the provision of this Section 11.13.
Forum selection clauses should be enforced unless they are unjust or unreasonable. Page 2 M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972). In some cases, such a clause may constitute waiver of defendant's right to remove a suit to federal court. Newman/Haas Racing v. Unelko Corp., 813 F. Supp. 1345, 1347 (N.D. Ill. 1993). Any waiver must be clear and unequivocal. Oberweis Dairy, Inc. v. Maplehurst Farms. Inc., 1989 WL 2078, *1 (N.D Ill.).

  Section 11.13 represents the parties' consent to the jurisdiction of any state or federal court within a geographic region, not the waiver of defendant's right to remove. See Newman/Haas, 813 F. Supp. at 1347. There are innumerable ways the parties could have used the forum selection to limit defendant's right to remove, yet they failed to do so. See Euzzino v. London & Edinburgh Ins. Co. Ltd., 228 F. Supp. 431 (NJ). Ill. 1964) (holding that a clause explicitly stating that defendant must submit to jurisdiction at the request of the plaintiff constitutes a waiver of the right to remove). Clauses (iii) and (iv) do not change this result Clause (iii) simply prohibits a party from filing a competing lawsuit in another jurisdiction with the goal of circumventing the choice-of-venue clause, and clause (iv) deals solely with suits for injunctive relief, eliminating the defense of lack of personal jurisdiction. These clauses cannot be construed as demonstrating an unequivocal waiver by defendant of its right to remove a lawsuit to federal court

  The cases upon which plaintiff relies are easily distinguishable. In Waters v. Browning-Ferris Industries, Inc., 252 F.3d 796 (5th Cir. 2001), the court found that a similar clause constituted a knowing waiver of the right to remove. The clause in Waters, however, explicitly stated that the "Company" (the defendant in the case) irrevocably agreed to jurisdiction in the venue chosen by the plaintiff. Id at 797. The venue clause In the present case binds both parties to Illinois rather than allowing one party to choose the forum. Moreover, as Judge Page 3 Garza wrote in dissent, the "contract simply does not address whether the suit should be adjudicated ultimately in federal or state court," Id, at 798.

  Likewise, in Snapper. Inc. v. Redan, 171 F.3d 1249 (11th Cir. 1999), the court determined that the defendants had waived their right of removal. Again, that specific clause was much more restrictive, granting to the plaintiff the exclusive right to choose the forum. Id. at 1260. The defendants also expressly waived all rights based on their residency, which the court found included the right to remove as well as the right to object to personal jurisdiction. Id. As stated above, there is no such waiver of rights at issue here. Instead, the contract simply places a reasonable restriction on the location of the litigation.

  CONCLUSION

  For the foregoing reasons, plaintiffs motion to remand is denied.

20040218

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