Forum and venue selection clauses pick a jurisdiction/place (or jurisdictions/places) where contracting parties must (or may) litigate disputes. "Mandatory" clauses dictate the parties’ exclusive options — and usually they specify just one. "Permissive" ones grant the parties the right to file in a particular forum/spot but don’t prohibit them from suing elsewhere. A "hybrid" clause permits action at a particular somewhere but prohibits a second suit in another somewhere.
Yesterday, the Eleventh Circuit dealt with one of the hybrids.
A contract for the purchase of Florida real estate provided that the parties "waive any objection to the venue of any action filed in any court situated in the jurisdiction in which the property is located and waive any right to tranfer any such action filed in any court to any other court." One of the parties sued in Florida state court, but — notwithstanding the waiver of "any right to transfer [from] any court to any other court" — the defendant removed the case to U.S. District Court for the Middle District of Florida. The district court remanded it to state court. The Eleventh Circuit affirmed:
The forum selection clause at issue here is likewise one such hybrid clause. The first portion of it is permissive. A party need not sue in Orange County, Florida, but if a suit is initiated there, the defendant’s consent to venue in Orange County is contractually provided. The second portion, however, waives the parties’ rights to “transfer” the suit, when filed, to “any other court.” To “transfer” means to “convey or remove from one place or one person to another.” Black’s Law Dictionary 1536 (8th ed. 2004). The clause is not susceptible to more than one interpretation; therefore, its plain meaning governs. Based upon the plain meaning of the word “transfer,” we find that the forum selection clause waived Harvard’s right to remove in addition to its right to transfer for the convenience of the parties and witnesses.
Ocwen Orlando Holdings Corp. v. Harvard Property Trust, LLC, No. 07-13920 (11th Cir. May 12, 2008).
Blawgletter would have thought that "transfer" doesn’t include "remove". That Black’s Law Dictionary defines "transfer" as "convey or remove" strikes us as happenchance. Yet the clause does say "to any other court", which of course includes the federal court sitting in the same geographic area as the state court. So we have a hard time disagreeing with the result.