United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, UNITED STATES DISTRICT JUDGE
Shaw's Menswear, Inc. has moved to remand this case to
the Superior Court of Putnam County. Doc. 13. Shaw's has
also moved for attorney's fees incurred as a result of
filing the motion to remand. Doc. 21. For the following
reasons, Shaw's motion to remand (Doc. 13) is
GRANTED,  and Shaw's motion for
attorney's fees (Doc. 21) is DENIED.
January 12, 2009, Shaw's entered into a consignment
contract with Defendants G.C. of Winter Park, Inc. and
JCNAPLES, Inc. Doc. 1-1 at 41-50. On January 6, 2016,
Shaw's entered into another consignment contract with
Defendant JCWP, LLC. Id. at 52-59. Defendant H.
Craig Delongy signed the 2009 contract on behalf of Winter
Park and JCNAPLES, and he signed the 2016 contract on behalf
of JCWP. Doc. 1-1 at 50, 59. The contracts, which were both
drafted by Shaw's, contain identical forum selection
The parties agree that the situs and venue of any suit
commenced under this contract shall be Putnam County,
Georgia. The parties further agree that any negotiations on
transactions affecting this contract and the entry into this
contract shall be deemed to have taken place in Putnam
County, Eatonton, Georgia. Owner hereby consents to the
personal jurisdiction of the courts of Putnam County,
Georgia, and agrees to acknowledge service of any suit filed
against Owner by Supplier in Putnam County, Georgia.
Docs. 1-1 at 49, 58; 19-1 ¶ 3.
February 8, 2019, Shaw's filed suit in the Superior Court
of Putnam County alleging the Defendants breached both
contracts. Doc. 1-1. On March 21, the Defendants removed the
case to this Court. Doc. 1. On April 8, Shaw's filed a
motion to remand the case to Putnam County, citing the forum
selection clause, and subsequently filed a motion for
attorney's fees. Docs. 13; 21.
MOTION TO REMAND
removing a case from state to federal court, a party may file
a motion to remand the case to state court “on the
basis of any defect other than lack of subject matter
jurisdiction . . . within 30 days.” 28 U.S.C. §
1447. A forum selection clause constitutes such a defect.
Snapper, Inc. v. Redan, 171 F.3d 1249, 1263 n.26
(11th Cir. 1999). The enforceability of a forum selection
clause in a diversity jurisdiction case is governed by
federal law, and ordinary contract interpretation principles
apply. See P & S Bus. Machs., Inc. v. Canon USA,
Inc., 331 F.3d 804, 807 (11th Cir. 2003); Glob.
Satellite Commc'n Co. v. Starmill U.K. Ltd., 378
F.3d 1269, 1272 (11th Cir. 2004). Significantly, in the
Eleventh Circuit, a “clear and unequivocal”
contractual waiver of the statutory right of removal within
the forum selection clause is not required to grant a motion
to remand. Snapper, Inc., 171 F.3d at 1260-61.
a case in which the Southern District of Ohio denied a motion
to remand, the Defendants contend that the word
“commenced” as used in the forum selection clause
only requires that a suit be filed in Putnam County, and thus
removal after filing is not precluded. Doc. 19 at 4-5 (citing
Huntington Copper Moody & Maguire, Inc. v.
Cypert, 2005 WL 2290318 (S.D. Ohio 2005)). In
Huntington, the forum selection clause stated that
“any legal action . . . commenced under this
Agreement shall be filed in the Court of Common Pleas,
Hamilton County, Ohio.” 2005 WL 2290318, at *1
(emphasis added). The court denied the motion to remand
because the forum selection clause did not contain an
additional waiver, which is required by the Sixth Circuit.
Id. (using the same reasoning as the Sixth Circuit
in Regis Assocs. v. Rank Hotels (Mgmt.) Ltd., 894
F.2d 193, 195 (6th Cir. 1990), where the Sixth Circuit held
that a forum selection clause must contain and additional
“clear and unequivocal waiver” of the right to
remove because the right is absolute, even when the
clause's existing language was unambiguous). The Eleventh
Circuit, however, has rejected the argument that forum
selection clauses must, in addition to setting the forum,
clearly and unequivocally waive any right to remove.
Snapper, Inc., 171 F.3d at 1260-61 (“We need
not decide whether the clause rises to the level of a clear
and unequivocal waiver because we do not agree that such a
high standard is desirable.”) (footnote omitted).
ordinary contract principles to the parties' forum
selection clause, the Court concludes that the clause
requires the parties to resolve their disputes in Putnam
County and that the Defendants waived their right to federal
court. The clause does not merely require that any suit
arising under the contract “shall commence” in
Putnam County, thereby allowing a party to later remove the
case, as the Defendants argue.See Doc. 19 at 3. Rather,
the clause states that “the situs and venue of any suit
commenced under this contract shall be Putnam County.”
Id. at 2. In other words, “commenced under
this contract” defines the scope of the clause, and for
actions within that scope, “the situs and venue . . .
shall be Putnam County.” The forum selection clause
thus requires the suit to take place in Putnam County.
Accordingly, Shaw's motion to remand (Doc. 13) is
MOTION FOR ATTORNEY'S FEES
to 28 U.S.C. § 1447(c), “[a]n order remanding the
case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of
the removal.” Though the award of costs and
attorney's fees under this provision is discretionary,
“the standard for awarding fees should turn on the
reasonableness of the removal.” Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005). Thus,
“[a]bsent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal. Conversely, when an objectively reasonable
basis exists, fees should be denied.” Id.
Although the Defendants' interpretation of the forum
selection clause was incorrect, it was not unreasonable. The
Court concludes the Defendants had an objectively reasonable
basis for removal and declines to award fees and costs.
Accordingly, Shaw's motion for attorney's fees (Doc.
21) is DENIED.