United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion to
Remand [Doc. No. 11], brought pursuant to 28 U.S.C. §
1447(c). For the reasons stated below, the Court grants the
motion and remands this case to the Circuit Court of St.
Louis County, Missouri.
facts relevant to the Court's disposition of this motion
are as follow. Plaintiff brought this action in Circuit Court
of St. Louis County, Missouri against Defendants for
delinquent taxes and other relief. Plaintiffs are Cities
which impose municipal business license taxes on telephone
companies doing business in the Plaintiff Cities. Defendants
are telephone companies which do business in the Cities and
are allegedly required to pay the Cities' license taxes.
Defendants previously entered into a class action settlement
agreement with the Cities of Grandview, Lee's Summit, and
Webster Groves. This settlement agreement was approved by the
Circuit Court of the County of St. Louis, Missouri. The
Settlement Agreement requires Defendants to pay the
Cities' license taxes. Plaintiffs allege Defendants have
not done so.
Petition contains the following 19 counts: Counts I-IV seek
delinquent local taxes, interest, and penalties. Counts
V-VIII seek rulings that Defendants have violated Missouri
State statutes and subjected the Cities to undue and
unreasonable prejudice and disadvantage. Counts IX-XII seek
declaratory judgments regarding Defendants' obligations
to pay local license taxes and the enforcement of those
taxes. Counts XIII-XVI seek an accounting of Defendants'
gross receipts to determine the extent of Defendants'
alleged underpayment of taxes. Counts XVII-XIX allege breach
of contract claims for Defendants' alleged violations of
the class action settlement agreement.
Settlement Agreement contains a forum selection clause
wherein the parties agreed that the Circuit Court of the
County of St. Louis Missouri will
[R]etain jurisdiction, after entry of the Order and Judgment
of Dismissal with respect to enforcement of the terms of this
Settlement, and all Parties and Class Members submit to the
exclusive jurisdiction of the Court with respect to the
enforcement of the Settlement and any dispute with respect
Further, the settlement agreement defined “Court”
as the Circuit Court of the Count of St. Louis, Missouri.
filed this action on November 2, 2018 in the Circuit Court of
the County of St. Louis. Defendants removed based on the
Court's diversity of citizenship jurisdiction, 28 U.S.C.
§§ 1332, 1441, and 1446. Plaintiffs move to remand
based on the forum selection clause contained in the
settlement agreement. Defendants oppose remand arguing that
the forum selection clause is insufficient to waive their
1441 of Title 28 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. See Martin v. Franklin Capital Corp.,
546 U.S. 132, 134, 126 S.Ct. 704, 163 L.Ed.2d 547 (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. See 28 U.S.C. §
1447(c). Courts who have considered 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.
See, e.g., iNet Directories, LLC v.
Developershed, Inc., 394 F.3d 1081, 1082 (8th Cir.
2005). There is a strong presumption in favor of finding
forum selection clauses valid and enforceable. See Atl.
Marine Constr. Co. v. U.S. Dist. Court, ____ U.S. ____,
134 S.Ct. 568, 583, 187 L.Ed.2d 487 (2013) (“When
parties have contracted in advance to litigate disputes in a
particular forum, courts should not unnecessarily disrupt the
parties' settled expectations.”); Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589, 111
S.Ct. 1522, 113 L.Ed.2d 622 (1991); M/S Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d
513 (1972). Where, as here, there is no allegation of fraud
or overreaching in procurement of the forum selection clause,
the only issue the Court need consider is whether the
language of the clause acts as a waiver of the right to
remove the case to federal court. See Babe Winkelman
Prods., Inc. v. Sports Design and Dev., Inc., No. Civ.
05-2971 DWF/RLE, 2006 WL 980821, at *2 (D. Minn. Apr. 7,
differ regarding the level of specificity that the forum
selection clause must show before removal is foreclosed.
See James Wm. Moore et al., Moore's Federal
Practice ¶ 107.130 (3d ed. 2016). The Eighth Circuit
has adopted the stricter of the two prevailing standards,
requiring that any contractual waiver of the right to remove
must be “clear and unequivocal.” See Weltman
v. Silna, 879 F.2d 425, 427 (8th Cir. 1989).
Weltman, the court declared that an agreement that
venue would be proper in state court did not constitute a
waiver of the right to remove because it did not
“address removal.” 879 F.2d at 427. As several
district courts have noted, however, because the Eighth
Circuit did not provide the language of the clause it was
interpreting, the Weltman opinion is of limited
value. See, e.g., Push Pedal Pull,Inc.
v. Casperson, 971 F.Supp.2d 918, 927 (D.S.D. 2013);
Babe WinkelmanProds., 2006 WL 980821, at
*2. The other relevant Eighth Circuit case is iNetDirectories, LLC v. Developershed, Inc., 394 F.3d
1081 (8th Cir. 2005). There, the court determined
that a forum selection clause providing that the parties
“irrevocably waive[d] any and all objections ... to the
laying of venue ... in any such federal or state court in the
State of Missouri” constituted a waiver of the right to
remove a case first filed in Missouri state court. 394 F.3d
at 1081-82. In so holding, the court emphasized that the