The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
This action was referred to the undersigned by Honorable
Richard J. Arcara on December 8, 2004, for all pretrial matters.
The matter is presently before the court on Plaintiff's motion to
remand the action to New York Supreme Court, filed November 10,
2004 (Doc. No. 4).*fn1 BACKGROUND and FACTS*fn2
Plaintiff ServiceCorp, Inc. ("Plaintiff"), a New York
corporation with its principal place of business in Niagara
County, New York, commenced this contract action against
Defendant Cascades, Inc. ("Defendant"), a Canadian corporation
with its principal place of business in Quebec, Canada, in New
York Supreme Court, Niagara County, on October 4, 2004. On
October 23, 2004, Defendant removed the action to this court,
asserting complete diversity of the parties as the basis for
federal jurisdiction. Notice of Removal (Doc. No. 1) ("Removal
Notice"), ¶ 2.
On November 10, 2004, Plaintiff filed the instant motion to
remand the matter to New York Supreme Court, Niagara County (Doc.
No. 4) ("Remand Motion"), and requested an award of the costs and
expenses, including attorney's fees, incurred as a result of the
removal. Attached in support of the Remand Motion are the
Affidavit of Michael R. Law, Esq., ("Law Affidavit"), the
Affidavit of ServiceCorp, Inc. President Raymond R. O'Keefe
("O'Keefe Affidavit") with exhibits, and a Memorandum of Law in
Support of Plaintiff's Motion to Remand Pursuant to
28 U.S.C. § 1447 ("Plaintiff's Memorandum").
Defendant, on January 7, 2005, filed Defendant's Memorandum of
Law in Opposition to Plaintiff's Motion to Remand (Doc. No. 11)
("Defendant's Memorandum"). On January 18, 2005, Plaintiff filed
in further support of remand the Reply Affidavit of ServiceCorp, Inc. President Raymond T. O'Keefe (Doc. No. 13)
("O'Keefe Reply Affidavit"), and Plaintiff's Memorandum of Law in
Further Support of Plaintiff's Motion to Remand Pursuant to
28 U.S.C. § 1447 (Doc. No. 14) ("Plaintiff's Reply Memorandum").
Oral argument was deemed unnecessary.
Based on the following, the motion to remand is DENIED.
Removal of a state court proceeding to federal court is
provided for under 28 U.S.C. § 1441(a) which states in pertinent
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 the defendants, to the district court of
the United States for the district and division
embracing the place where such action is pending.
Because federal courts are courts of limited jurisdiction, and as
removal of a case raises issues of federalism, removal statutes
are narrowly construed and doubts are resolved against removal.
Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043
(2d Cir. 1991). The removal statute is construed according to
federal law. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
104 (1941); Somlyo, supra, at 1047.
Whether an action is removable based on diversity jurisdiction
is determined based on the pleadings as originally filed.
Crucible Materials Corporation v. Coltec Industries, Inc.,
986 F.Supp. 130 131-32 (N.D.N.Y. 1997). Accordingly,
28 U.S.C. § 1441(a) permits removal of only those actions which originally
could have been filed in federal district court. Further, it is
the removing party's burden to demonstrate the existence of federal jurisdiction. United Food & Commercial
Workers Union, Local 919, AFL-CIO v. Centermark Properties
Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) ("Where,
as here, jurisdiction is asserted by a defendant in a removal
petition, it follows that the defendant has the burden of
establishing that removal is proper. . . .").
In the instant case, Defendant removed the matter to this court
on the basis of complete diversity under 28 U.S.C. § 1332(a)(2),
given that Plaintiff is a New York citizen, whereas Defendant is
a Canadian citizen, and the amount in controversy exceeds
$75,000, the statutory minimum for diversity jurisdiction.
Removal Notice ¶¶ 2-7. See 28 U.S.C. § 1332(a)(2). Plaintiff does
not dispute that the citizenship of Plaintiff and Defendant is
completely diverse, nor that the amount in controversy exceeds
$75,000; rather, Plaintiff maintains that the contract's forum
selection clause requires the instant action be litigated in New
York Supreme Court, Niagara County and Defendant, by executing
the contract, waived its right to remove the action to federal
district court.*fn3 Plaintiff's Memorandum, passim; Law
Affidavit ¶ 4; O'Keefe Affidavit ¶¶ 7-9.
As relevant, the forum selection clause at issue states:
[t]his Agreement has been delivered to [Plaintiff] in
Youngstown, New York and shall be governed by the
laws of the State of New York in all respects,
including all matters of construction, validity, and
performance of this Agreement. Any disputes relating
to or arising from this Agreement shall be filed in
the court of competent jurisdiction in Niagara
County, New York. The prevailing party shall be
entitled to recover all reasonable costs and
attorney's fees arising from any such dispute.
Contract, Article 8.A (emphasis added). According to Plaintiff, the forum selection clause language
requiring disputes arising from the contract "be filed in the
court of competent jurisdiction in Niagara County, New York,"
Plaintiff's Memorandum at 1 (bolding in original), establishes
that the instant action may only be filed in New York Supreme
Court, Niagara County, as that is the only court for which the
courthouse is physically located in Niagara County and which
would also have jurisdiction over both the parties and the amount
in dispute. Plaintiff's Memorandum at 1-2 and 4. Plaintiff
further contends that two letters exchanged between the parties
while negotiating the contract establish that "[t]he clear
intention of the parties with respect to [the forum selection
clause] was that any dispute would be litigated in Niagara
County." Plaintiff's Memorandum at 4. See O'Keefe Affidavit ¶¶
8-10 (explaining that because the forum selection clause "clearly
indicates the agreement and intent of the parties ? to have any
dispute litigated in the New York Supreme Court in Niagara
County," and referencing letters exchanged between the parties on
March 1, 1999 (O'Keefe Affidavit Exhibit 2) and March 5, 1999
(O'Keefe Affidavit Exhibit 3) to demonstrate the importance of
the forum selection clause to Plaintiff, which is a much smaller
company than Defendant).
Defendant does not dispute the forum selection clause's
validity but, rather, maintains the clause "does not specify an
exclusive venue in which all disputes must be resolved, not does
it preclude [Defendant] from removing the action to this court."
Defendant's Memorandum at 1. Defendant further argues that
although no federal courthouse is physically located within
Niagara County, the district court for the Western District of
New York is a court of competent jurisdiction within the meaning
of the forum selection clause because the Western District of New
York encompasses Niagara County. Defendant's Memorandum at 2. Alternatively, Defendant
maintains that the forum selection clause is ambiguous and, as
such, must be construed against Plaintiff, the party responsible
for its inclusion, and consistent with the parties' intent, which
was to exclude a Canadian court as the forum for resolving any
contract dispute. Defendant's Memorandum at 4-5.
Plaintiff, in further support of remand, characterizes
Defendant's interpretation of the forum selection clause as
"strained" and contrary to the parties' intent. Plaintiff's Reply
Memorandum at 2. Alternatively, Plaintiff maintains even if the
forum selection clause is ambiguous, the clause was negotiated at
arms-length by both parties and, as such, need not be construed
against Plaintiff. Plaintiff's Reply at 3-4. Plaintiff further
maintains that although venue, for purposes of federal court, is
stated in terms of a "judicial district," 28 U.S.C. § ...