United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion to
Remand. (Doc. No. 12) The motion is fully briefed and ready
for disposition. For the following reasons, the motion will
Lease LLC (“XTRA”), a Delaware limited liability
company with its principal place of business located in St.
Louis, Missouri, rents and leases trailers to various
companies. (Petition (“Pet.”), Doc. No. 6 at
¶¶ 1, 6). XTRA and Defendant 4D Daylight-To-Dark AG
Services, LLC (“4D”) entered into an Equipment
Lease Agreement and certain Equipment Rental Agreements
(collectively referred to as “Equipment Lease
Agreement”),  wherein XTRA agreed to lease and rent
certain identified trailers to 4D in exchange for a promise
to make payments in accordance with the terms of the
Agreements. (Pet. ¶ 9). However, XTRA contends that 4D
has failed to make such payments. (Pet. ¶¶ 11-13).
XTRA further alleges that Defendants Kane and Alana Carpenter
(“the Carpenters”), believed to be the principals
of 4D, entered into a Personal Unlimited Continuing Guaranty
Agreement (“Guaranty Agreement”) wherein they
agreed to guarantee all of 4D's liabilities and
obligations under the Agreements. (Pet. ¶¶ 14-25).
Equipment Lease Agreement includes contractual
“Standard Terms and Conditions” which contain the
following forum selection clause:
31. CHOICE OF LAW; VENUE; JURY TRIAL WAIVER. … [4D]
and XTRA Lease each hereby submit to the jurisdiction of the
Circuit Court of St. Louis County, Missouri for purposes of
adjudicating any action arising out of or related to the
Lease, and hereby waive, to the fullest extent
permitted by law, any objection to that venue
for any action arising out of or related to the Lease. Any
action arising out of the Lease may be properly filed in the
Circuit Court of St. Louis County, Missouri; however, XTRA
Lease reserves its right to bring suit in any other
(Doc. No. 2-1 at 46, ¶ 31) (emphasis added). The
Guaranty Agreement also contains a forum selection clause
GUARANTOR IRREVOCABLY AGREES THAT ALL ACTIONS RELATING TO
THIS GUARANTY SHALL BE INSTITUTED AND LITIGATED ONLY IN, AND
THE GUARANTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION
AND VENUE OF, THE CIRCUIT COURT OF SAINT LOUIS COUNTY,
MISSOURI OR THE U.S. DISTRICT COURT, EASTERN DISTRICT OF
MISSOURI AND WAIVES ANY OBJECTION BASED ON FORUM NON
(Doc. No. 2-1 at 2) (emphasis added).
28, 2017, XTRA filed a petition in the Circuit Court of St.
Louis County, Missouri, against Defendants for damages
resulting from their alleged breach of the Equipment Lease
Agreement and the Guaranty Agreement. The Carpenters removed
the case to this Court on the basis of diversity jurisdiction
and 4D filed a Consent to Removal (Doc. Nos. 1, 4). XTRA
moves to remand the case on the grounds that Defendants
cannot satisfy the unanimity requirement for removal pursuant
to 28 U.S.C. § 1446 because 4D contractually waived its
right to removal and its right to consent to removal. (Doc.
No. 13 at 5-7). XTRA also contends the Carpenters waived
their right to remove by agreeing to assume 4D's duties
and obligations, including its agreement to litigate in St.
Louis County and waive any right to contest that
jurisdiction. Lastly, XTRA asserts that under the forum
selection clause of the Guaranty Agreement, once suit was
brought in St. Louis County, the Carpenters consented to St.
Louis County venue and unequivocally waived their right to
contest that venue. (Id. at 8-9).
jointly oppose remand, arguing there is nothing in the terms
of the Equipment Lease Agreement that prohibits 4D from
consenting to removal (Doc. No. 20 at 3). Defendants further
argue the Carpenters did not waive their right to select
venue in the federal district court through a guaranty of
performance of the underlying Lease Agreement by 4D. That is,
4D's agreement to litigate in St. Louis County is not an
obligation, duty or undertaking that the Carpenters agreed to
assume under the Guaranty Agreement. (Id. at 3-4)
Lastly, Defendants argue that by virtue of a conflict between
the forum selection clauses of the Equipment Lease Agreement
and Guaranty Agreement, XTRA either consented to or waived
its right to object to jurisdiction in this Court and that
the case was properly removed. (Id. at 4-5).
reply, XTRA argues that by waiving its right to removal, 4D
has also waived its right to consent to removal, citing
Push Pedal Pull, Inc. v. Casperson, 971 F.Supp.2d
918, 929 (D.S.D. 2013) (“Here, the Agreement's
forum selection clause is valid and mandatory, it waived
Casperson's right to remove, and it thereby waived his
right to consent.”). Because 4D cannot consent to
removal, Defendants cannot satisfy the unanimity needed for
removal and the case must be remanded. (Doc. No. 23 at 2).
XTRA further argues there is no conflict between the forum
selection clauses of the Equipment Lease Agreement and the
Guaranty Agreement, because neither contemplate nor permit
Defendants filing suit in federal court or having the right
to remove the action to federal court. (Id. at 3-5).
U.S.C. § 1441 generally provides a defendant in a state
civil case the right to remove that case to federal district
court, assuming the case could have been brought there
originally. Valspar Corp. v. Sherman, 211 F.Supp.3d
1209, 1211 (D. Minn. 2016) (citing Martin v. Franklin
Capital Corp., 546 U.S. 132, 134 (2005)). In turn, the
plaintiff may move to have the case remanded if subject
matter jurisdiction is lacking, or if some other defect makes
removal improper. Id.; 28 U.S.C. § 1447(c).
Courts considering the issue, including the Eighth Circuit,
have concluded that removal in the face of a valid forum
selection clause fixing venue in the state courts is the sort
of defect that qualifies a case for remand. Valspar,
211 F.Supp.3d at 1211 (collecting cases). “Forum
selection clauses are prima facie valid and are enforced
unless they are unjust or unreasonable or invalid for reasons
such as fraud or overreaching.” XTRA Lease LLC v.
EJ Madison, LLC, No. 4:14CV1866 RLW, 2015 WL 3694712, at
*2 (E.D. Mo. June 12, 2015) (quoting M.B. Rests., Inc. v.
CKE Rests., Inc., 1 ...