Collin County v. Siemens Business Services, Inc. , 250 F. App'x 45 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT Fifth Circuit
FILED
October 3, 2007
No. 06-40302
Charles R. Fulbruge III
Clerk
COLLIN COUNTY, TEXAS,
Plaintiff–Appellee,
versus
SIEMENS BUSINESS SERVICES, INC.; ET AL,
Defendants,
SIEMENS BUSINESS SERVICES, INC., BEN L. KRAGE,
Defendants–Appellants.
Appeal from the United States District Court
for the Eastern District of Texas
4:05-CV-141
Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.
GARWOOD, Circuit Judge:*
The district court remanded this diversity case to state court
based on a clause in the sued on contracts that the removing
defendants–appellants SAP, Public Services, Inc. (“SAP”) and
Siemens Business Services, Inc. (“Siemens”), respectively entered
*
Pursuant to 5TH CIR. R.47.5 the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
into with plaintiff–appellee Collin County, Texas (“the County”).
The district court held that this contractual clause, which states
that “venue for all actions in connection with this Agreement shall
lie exclusively in Collin County, Texas,” constitutes a valid
waiver of federal removal rights because there currently is no
federal district courthouse within Collin County and because the
clause refers to a county rather than a district. Because we
agree, under the particular facts here, with the former, although
not the latter, reasoning of the district court, we affirm.
FACTS AND PROCEEDINGS BELOW
In 2003, the County decided to replace and to consolidate its
computer systems using an Enterprise Resource Planning Software
System (“ERP System”), which the County hoped would manage all
aspects of its business. ERP Systems incorporate large bodies of
software from companies such as Microsoft, Oracle, and SAP.
Because such systems are large and complex, those wishing to use an
ERP System often seek out a third party, like Siemens, to implement
it. For this reason, in September 2003, the County circulated a
request for proposals. In October 2003, SAP and Siemens submitted
a written proposal for the County’s project.
In March 2004, after an earlier meeting with Siemens and SAP
representatives, the County entered into two contracts: a software
end-user license agreement with SAP and a services agreement with
Siemens. These contracts stipulated that SAP would license the
2
software to the County while Siemens would implement the ERP
System. Both contracts stated that “venue for all actions in
connection with this Agreement shall lie exclusively in Collin
County, Texas.”
The County alleges that after Siemens and SAP started the ERP
System project for the County, they encountered problems with
matching the ERP System to the County’s requirements and that, on
March 18, 2005, Siemens and SAP informed the County that it could
not implement the ERP System as promised. On March 22, 2005, the
County brought suit against Siemens and SAP in the 219th Judicial
District Court of Collin County, Texas. That court is located in
Plano, Texas. The County asserted claims against Siemens and SAP
for fraud, negligent misrepresentation, and breach of contract, all
in relation to the above referenced contracts and subject matter.
On April 15, 2005, based solely on diversity jurisdiction,
Siemens removed the action to the Sherman Division of the United
States District Court for the Eastern District of Texas. SAP
timely consented to removal. On May 12, 2005, the County timely
moved to remand, arguing that Siemens and SAP had waived their
right to remove by agreeing to the clause in their respective
contracts fixing exclusive venue in Collin County, Texas.
By order entered January 24, 2006, the district court granted
the County’s motion to remand. The district court agreed with the
County that Siemens and SAP had waived their removal rights by
3
agreeing that venue “shall lie exclusively in Collin County,
Texas.” The district court reasoned that the venue clause
constituted such a waiver because, first, “there currently is no
federal district court located in Collin County, Texas,” and
second, “because the SAP and Siemens Agreements stated venue in
terms of a county as opposed to a federal district.” Siemens and
SAP timely filed notices of appeal.
DISCUSSION
I.
We begin by confirming our jurisdiction to review the district
court’s remand order.1 District courts frequently remand for lack
of subject matter jurisdiction under 28 U.S.C. § 1447(c), and 28
U.S.C. § 1447(d) bars appellate review of such remands.2 Waters v.
Browning-Ferris Indus., Inc., 252 F.3d 796, 797 (5th Cir. 2001);
McDermott Int’l, Inc. v. Lloyds Underwriters of London, 944 F.2d
1199, 1203 (5th Cir. 1991). In this case, however, the district
court based its remand order on the contractual venue clause fixing
1
“This court necessarily has the inherent jurisdiction to determine its
own jurisdiction.” Scherbatskoy v. Halliburton Co., 125 F.3d 288, 290 (5th
Cir. 1997). Likewise, even when the parties to a suit do not challenge our
jurisdiction, “it is always appropriate for us to confirm our jurisdiction.”
Waters v. Browning-Ferris Indus., Inc., 252 F.3d 796, 797 (5th Cir. 2001).
2
Subsection (c) of 28 U.S.C. § 1447 dictates, “[i]f at any time before
final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” Subsection (d) of 28 U.S.C. §
1447, “Procedure after removal generally,” states that “[a]n order remanding a
case to the State court from which it was removed is not reviewable on appeal
or otherwise, except that an order remanding a case to the State court from
which it was removed pursuant to section 1443 of this title shall be
reviewable by appeal or otherwise.” 28 U.S.C. § 1443 is inapplicable to the
instant appeal as it addresses civil rights cases.
4
venue in Collin County. Thus, the district court’s remand order
was “not based on lack of subject matter jurisdiction and is
therefore outside of the statutory prohibition on our appellate
review.”3 Waters, 252 F.3d at 797. “Contractual remand orders are
reviewable by direct appeal.” Id.; see Dixon v. TSE Int’l Inc.,
330 F.3d 396, 398 (5th Cir. 2003) (per curiam). Our review is de
novo as it involves determining whether the district court
correctly interpreted the County’s contracts with SAP and Siemens.
See McDermott Int’l, Inc., 944 F.2d at 1204 (reviewing, in a case
analyzing district court’s remand order based on insurance policy,
“the district court’s interpretation of the policy de novo”); see
also Southland Oil Co. v. Mississippi Ins. Guaranty Association,
182 F. App’x 358, 360 (5th Cir. 2006) (“A remand order is reviewed
de novo.”). We proceed to consider this appeal’s merits.
II.
Siemens and SAP assert various reasons why this court should
hold that the district court erred in ordering remand: because the
clause in their contracts with the County was not a “clear and
unequivocal” waiver of federal removal rights; because the district
3
See also McDermott Int’l, Inc., 944 F.2d at 1201 (“[T]he availability
and means of appellate review for a district court’s remand order depend
entirely on the court’s reason for issuing the order. . . . Congress denies
us authority to review remand orders that district courts issue under 28
U.S.C. § 1447(c) for lack of subject-matter jurisdiction. 28 U.S.C. §
1447(d). . . . The district court remanded this case pursuant to the
[insurance] policy’s service-of-suit clause, a reason outside the scope of
section 1447(c). Section 1447(d) does not bar our review.” (footnotes and
internal citations omitted)).
5
court for the Eastern District of Texas has jurisdiction over
Collin County; and because, since the contract clause at issue is
susceptible to disparate readings, it should be construed against
the County as the drafter of the clause. Siemens argues further
that the County’s fraud and negligent misrepresentation causes of
action do not arise “in connection” with Siemens and SAP’s
contracts with the County, and therefore are not subject to the
contract clause at issue. Lastly, SAP argues that construing the
contractual venue clause to proscribe removal would require
litigation in state court of patent-related claims that can only be
litigated in federal court. As explained below, we reject these
arguments.
A.
SAP argues that the district court erred in ordering remand
because reading the venue clause to prohibit removal would require
litigating patent claims in state court that should only be
litigated in federal court. We disagree. It is true that the
County’s license agreement with SAP refers to SAP’s patent rights,4
and that 28 U.S.C. § 1338 dictates that federal district courts
“have exclusive original jurisdiction of any civil action arising
under any Act of Congress relating to patents.” Scherbatskoy v.
Halliburton Co., 125 F.3d 288, 290 (5th Cir. 1997). Siemens and
4
The license agreement states that “all intellectual property rights,
including patent . . . rights, in the SAP Proprietary Information are and
shall remain in SAP and its licensors.”
6
SAP, however, premised their motion to remove solely on diversity
of citizenship; removal was not based on jurisdiction over patent-
related disputes under section 1338. Nor could Siemens and SAP
have removed this case under section 1338, because the instant
action does not deal with patents in any way. “To determine
whether jurisdiction is present for removal, we consider the claims
in the state court petition as they existed at the time of
removal.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d
720, 723 (5th Cir. 2002). Section 1338 grants district courts
exclusive jurisdiction of suits that “include[] allegations that
federal patent law creates the cause of action or federal patent
law is a necessary element of the claim.” Scherbatskoy, 125 F.3d
at 291. The County’s stated claims for fraud, negligent
misrepresentation, and breach of contract do not create such an
action. The possibility of some ancillary patent-related issue
does not confer jurisdiction; not all patent law questions demand
federal jurisdiction—state courts can and do resolve such issues.
Speedco, Inc. v. Estes, 853 F.2d 909, 913 (Fed. Cir. 1988); see
also Am. Tel. & Tel. Co. v. Integrated Network Corp., 972 F.2d
1321, 1324 (Fed. Cir. 1992) (stating that an ancillary issue
relating to patent law “cannot of itself sustain [federal]
jurisdiction”); Lang v. Patent Tile Co., 216 F.2d 254, 255 (5th
Cir. 1954) (“Questions under the patent laws may arise in the
course of the litigation, but this is not a case arising under
7
those laws.”). Moreover, we decline to conclude that the venue
clause in this case is ambiguous due to the possibility that, at
some future date, an action will be instituted that does arise
under the patent laws. As the County points out, in such a case,
the venue clause simply would not apply. See Highland Supply Co.
v. Klerk’s Flexible Packaging, B.V., No. 05-CV-482-DRH, 2005 WL
3534211, at *2, *4 (S.D. Ill. Dec. 21, 2005) (explaining that
“because federal courts have exclusive jurisdiction over patent
claims, the Agreement’s forum-selection clause is of no
consequence”).
B.
We also reject Siemens’s argument that two of the County’s
claims—fraud and negligent misrepresentation—do not arise “in
connection” with Siemens and SAP’s contracts with the County and
therefore are not subject to the venue clause at issue. Siemens
reasons that “the County’s fraud and negligent misrepresentation
claims allegedly arise from conduct which occurred before any
contract was entered between the parties and thus cannot be
governed by the subject venue clause.” Siemens relies primarily on
two cases: Major Help Ctr., Inc. v. Ivy, Crews & Elliott, P.C., No.
03-99-00285-CV, 2000 WL 298282 (Tex. App.—Austin Mar. 23, 2000, no
pet.) (unpublished), and Busse v. Pac. Cattle Feeding Fund #1,
Ltd., 896 S.W.2d 807 (Tex. App.—Texarkana 1995, writ denied). The
Busse case, in which the Texas Court of Appeals in Texarkana held
8
that a forum selection clause did not control a fraudulent
inducement claim, is immediately distinguishable because the
plaintiffs in that action “were not parties to the contract sought
to be enforced.” Clark v. Power Mktg. Direct, Inc., 192 S.W.3d
796, 798 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In the
unpublished Major opinion, the Texas Court of Appeals in Austin
found the plaintiffs’ Deceptive Trade Practices Act (“DTPA”) claim
fell outside of the forum-selection clause on which the defendants
relied in their motion to dismiss. 2000 WL 298282, at *2–3. The
court found the forum-selection clause inapplicable because the
plaintiffs did not rely on their contract with the defendant to
maintain their DTPA claim and did not seek to enforce the
obligations or duties arising under the contract. Id. at *3.
We agree with the County that the venue clause in this case
encompasses the fraud and negligent misrepresentation claims
asserted by the County. Texas courts have indicated that claims
for fraud in the inducement of a contract relate to the contract
and are therefore subject to the contract’s forum selection
clause—even though the fraud claim is based on pre-contractual
conduct. See, e.g., In re J.D. Edwards World Solutions Co., 87
S.W.3d 546, 551 (Tex. 2002) (per curiam) (stating that whether
contract “was induced by fraud is a dispute ‘involving’ [the
9
parties’] agreement”)5; Clark, 192 S.W.3d at 799–800 (providing
that claims related to defendant’s alleged conduct in inducing
plaintiffs to sign contracts encompassed by those contracts’ forum-
selection clauses). There is no indication that the County’s fraud
and negligent misrepresentation claims could be maintained without
reference to its contracts with Siemens and SAP. Thus, we find
that they are subject to the contracts’ venue clause.
C.
We thus arrive at the central issue in this appeal: whether
the contract clause fixing exclusive venue in Collin County, Texas
constitutes a waiver of Siemens and SAP’s removal rights. It is
established that “[a] party may remove an action from state court
to federal court if the action is one over which the federal court
possesses subject matter jurisdiction.” Manguno, 276 F.3d at 723
(citing 28 U.S.C. § 1441(a)).6 It is likewise established law that
5
In In re J.D. Edwards World Solutions Co., the parties entered into a
contract that included a provision stating that “disputes involving this
Agreement . . . shall be determined under the law of the State of Colorado.”
87 S.W.3d at 548 (internal quotations omitted). The Texas Supreme Court gave
no indication, however, that its decision—that the fraudulent inducement claim
was covered by the contract—would have been different under Texas law.
Moreover, the Texas Supreme Court noted, “[a]lthough there remains a question
about whether federal law, Colorado law or the [Uniform Arbitration Act]
controls the resolution of the disputed issues in this case, we need not
decide which applies, or to what extent, because the result is the same under
all three.” Id. at 550.
6
28 U.S.C. § 1441(a) states, in pertinent part:
“Except as otherwise expressly provided by Act of Congress, 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
10
a party may waive its removal rights by contract—even without the
use of “explicit words, such as ‘waiver of right of removal.’”
Waters, 252 F.3d at 797; see also City of Rose City v. Nutmeg Ins.
Co., 931 F.2d 13, 15 (5th Cir. 1991) (directing remand to state
court based on contract, even though the contract did “not
specifically mention the right of a defendant to remove an
action”). Still, contractual clauses purporting to waive federal
jurisdiction must be mandatory and not merely permissive. See
Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 956–57 (5th Cir.
1974) (finding that federal district court erred in dismissing
action where forum-selection clause was merely permissive).
Further, contractual clauses that waive federal jurisdiction will
be enforced only if enforcement is reasonable. See In re Fireman’s
Fund Ins. Cos., 588 F.2d 93, 95 (5th Cir. 1979) (“Where the parties
have by contract selected a forum, it is incumbent upon the party
resisting to establish that the choice was unreasonable, unfair, or
unjust.” (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92
S. Ct. 1907, 32 L. Ed. 2d 513 (1972))). Here, it is undisputed that
the venue clause at issue is mandatory. Moreover, while SAP weakly
attempts to challenge the reasonableness of enforcing the venue
clause, the record is devoid of evidence demonstrating that
enforcement would be unreasonable.7 Defendants–appellants Siemens
where such action is pending.”
7
Indeed, Siemens concedes that there is no issue in regards to whether
the venue clause is reasonable.
11
and SAP are large, sophisticated companies, and the venue clause in
the contracts they entered into with the County “appears to be a
voluntary, bargained for arrangement between . . . strong
contracting parties.” Id. We therefore conclude that the venue
clause in this case is both mandatory and enforceable. We next
consider the district court’s reasons for holding that the
contractual clause, which dictates that venue “shall lie
exclusively in Collin County, Texas,” constitutes a waiver of
federal removal rights.
First, we disagree with the district court’s remand order to
the extent that it says that when a contractual clause refers to a
“county” rather than a “district,” the right to remove to federal
court is waived. In its order to remand, the district court stated
that one way by which a defendant may waive the right to remove
under 28 U.S.C. § 1441 is by “consenting to a forum selection
clause which designates exclusive venue in a county rather than a
judicial district.” For this proposition, the district court
cited, inter alia, the Tenth Circuit opinion in Excell, Inc. v.
Sterling Boiler & Mech., 106 F.3d 318 (10th Cir. 1997). In Excell,
the Tenth Circuit affirmed the district court’s remand order after
agreeing that a forum selection clause that stated, “[j]urisdiction
shall be in the State of Colorado, and venue shall lie in the
County of El Paso, Colorado,” constituted a waiver of federal
jurisdiction. 106 F.3d at 320-21. The Tenth Circuit reasoned:
12
“Although [the appellant] argues the clause can be
reasonably interpreted to allow removal of the case to
federal district court that sits in El Paso County, we
reject this argument. For federal court purposes, venue
is not stated in terms of ‘counties.’ Rather, it is
stated in terms of ‘judicial districts.’ See 28 U.S.C.
§ 1391. Because the language of the clause refers only
to a specific county and not to a specific judicial
district, we conclude venue is intended to lie only in
state district court.”
Id. at 321. As indicated in the above quotation, the Tenth Circuit
relied on section 1391 for the proposition that venue in terms of
federal district courts should be stated in terms of “districts”
and not “counties.” However, “[s]ection 1441(a), and not the
ordinary federal venue statute, 28 U.S.C. § 1391, governs venue in
removed cases.” Global Satellite Commc’n Co. v. Starmill U.K.
Ltd., 378 F.3d 1269, 1271 (11th Cir. 2004) (citing Polizzi v.
Cowles Magazines, Inc., 345 U.S. 663, 665–66, 73 S. Ct. 900, 97
L. Ed. 1331 (1953)). “The federal general removal statute, 28
U.S.C. § 1441, permits removal of certain actions from state court
‘to the district court of the United States for the district and
division embracing the place where such action is pending.’” Id.
(quoting 28 U.S.C. § 1441(a)). While section 1441(a) refers to the
“district” and the “division” of the federal court, it does so only
in relation to location of the federal court that may hear the
removed case. Given that section 1441, and not section 1391,
governs venue in removal cases, the use of the term “county” rather
than “district” at the very least falls short of a clear and
unequivocal waiver of federal jurisdiction. Thus, we cannot agree
13
with the district court’s first reason for concluding that the
clause at issue in this case constituted such a waiver.
The district court’s second reason for concluding that the
venue clause constituted a waiver of federal removal rights and for
ordering remand was that there currently is no federal district
courthouse in Collin County. We agree that, under the facts of
this case, Collin County’s lack of a federal courthouse renders the
clause at issue such a waiver.
First, we think it clear that the clause at issue in this case
was intended to relate to where there is a sitting court. Siemens
and SAP argue that the clause’s language allows removal to a
federal district court whose jurisdiction encompasses, as well as
those courts actually regularly sitting in, Collin County. We have
previously declined to lump these two categories of courts
together. In Argyll Equities LLC v. Paolino, 211 F. App’x 317, 318
(5th Cir. 2006) (per curiam) (unpublished), this court held that a
forum selection clause rendered venue proper only in a state court
in Kendall County, Texas. Although the San Antonio Division of the
United States District Court for the Western District of Texas
encompasses Kendall County within its jurisdiction, 28 U.S.C. §
124(d)(4), court for the San Antonio Division is held only in San
Antonio, which is in Bexar County. 28 U.S.C. § 124(d)(4); Paolino,
211 F. App’x at 318-19. This court declined to allow suit to
proceed in the San Antonio Division when the parties had agreed to
a forum selection clause limiting venue to Kendall County.
14
Paolino, Id. at 319. We also rejected the appellant’s argument
that suit was properly in the federal court because “28 U.S.C. §
141(a) allows special sessions of the district court to be held
anywhere in the district.” Id. at 319. We reasoned that “for
purposes of the forum selection clause at issue here, the district
court ‘sits’ where it regularly holds court, not in the potentially
infinite number of places in the Western District of Texas where it
could hold a special session.” Id. Admittedly, the forum
selection clause in Paolino expressly stated that “the courts
sitting in Kendall County, Texas, United States of America” would
have “exclusive jurisdiction.” Id. at 318 (emphasis added). But
we nevertheless find persuasive its distinction between courts
encompassing an area and those sitting in or hearing cases in an
area.
The instant case, however, presents an additional twist not
found in the Paolino decision. While the only currently completed,
functioning federal courthouse within the Sherman Division of the
United States District Court for the Eastern District of Texas—the
division that encompasses Collin County within its jurisdiction—is
located in Sherman, Texas, outside of Collin County, the Sherman
Division’s enabling statute states, “[c]ourt for the Sherman
Division shall be held at Sherman and Plano.” 28 U.S.C. §
124(c)(3) (emphasis added). Plano is located primarily, although
not completely, within Collin County. Thus, unlike the San Antonio
15
Division in Paolino, which encompassed Kendall County within its
jurisdiction but did not and was not statutorily directed to hold
court there, Congress instructed that the Sherman Division both
encompass Collin County within its jurisdiction and hold court in
Plano (as well as in Sherman)—and therefore hold court likely in
Collin County. Presently the Sherman Division district court does
not hear—and has never heard—cases in Plano because of the lack of
a place to do so (there never having been a federal district
courthouse in Plano).
While Congress’s mandate that the Sherman Division hold court
in Plano makes construction and application of the instant forum
selection clause more difficult than that of the clause in Paolino,
in this case we view as determinative the fact that
defendants–appellants Siemens and SAP never contemplated that the
instant action would be tried in a federal court within Collin
County’s confines; although Siemens and SAP both refer to or cite
28 U.S.C. § 124(c)(3) in their respective briefs, and Siemens
referred to that provision in its brief below, neither company
appears to have ever suggested that the Sherman Division actually
ought to hear the instant action in Plano.
As both Siemens and SAP point out, however, plans exist to
build a new federal courthouse in Plano, within Collin County, for
the Sherman Division of the Eastern District. Once the new federal
courthouse is built the district court that granted the motion to
remand in this case will hold court in Plano, which stretches into
16
both Collin and Denton Counties (Denton County also being in the
Sherman Division).
The planned courthouse’s completion date might well be
conclusive of removal rights in future suits under the County’s
contracts with SAP and Siemens. But it seems clear that neither
the district court nor Congress would have considered the district
court to be in violation of the Sherman Division’s enabling
statute, or of the Eastern District’s General Order No. 03-15
which reaffirmed the District’s prior resolution to “authoriz[e]
Plano as a place of holding court in the Sherman Division,”8 by
failing to hold court in Plano prior to the completion of a federal
district courthouse in which court could be held. We cannot say
that the enabling statute’s mandate that the Sherman Division
“shall hold court” in Plano can be read to become effective before
there is a place for the district court to hold court.9
8
General Order No. 03-15 is available at
http://www.txed.uscourts.gov/Rules/GeneralOrders/2003/go03-15.pdf. It was
entered on June 16, 2003, before the enabling statute was amended in December
2003 to include “Plano.”
9
An October 2006 press release, available at
http://www.samjohnson.house.gov/News/DocumentSingle.aspx?DocumentID=51199,
indicates that the federal government has leased land on which to build the
courthouse. This lease was signed in October 2006, but it appears that at the
time the design phase of the project to construct the courthouse had not yet
begun. The press release further indicates that occupancy of the courthouse
was estimated to be in the fall of 2007. Siemens and SAP removed this action
in April 2005, and we ordinarily analyze the propriety of removal as of the
removal date. The district court’s order to remand, dated January 2006,
accurately reflected that at the time of removal there was no federal
courthouse in Collin County. Furthermore, it appears that throughout the
parties’ presentation of their arguments to the district court, the parties
never considered that a courthouse would be completed within Collin County
during the pendency of this action.
17
This would likely be a different case if, for example, there
had been a federal courthouse in Collin County prior to the
defendants–appellants’ removal of the action but the courthouse had
burned to the ground in a fire. Catastrophic events such as
Hurricane Katrina demonstrate that there may sometimes be reasons
beyond a party’s control that will deprive the party of its ability
to try a case in federal or state court in a particular area.
Here, however, there was not, and never had been, a functioning
federal courthouse, and no federal district court was then sitting
or had ever sat, in Collin County at the time that Siemens and SAP
removed the action. All of the parties assumed that it would be
impossible to try the case in federal court in Collin County; no
party argued that the federal courthouse could or would be
completed in time for a trial in this case.10
We consider the circumstances of this appeal to present a very
narrow, one-time question.11
CONCLUSION
10
It is true that the United States Bankruptcy Court for the Eastern
District of Texas currently sits in Plano and that the bankruptcy court was
probably hearing cases in Plano at the time this case was removed. But
Siemens and SAP did not raise the possibility that the district court could
hear their case in the bankruptcy court’s quarters until on appeal. Further,
it appears that they never expected this possibility to control the outcome of
the County’s motion to remand.
11
SAP also makes arguments related to interpreting the venue clause if
it is construed as ambiguous. Specifically, SAP argues that because the
County drafted the forum selection clause, if the provision is at all
ambiguous, it should be interpreted against the County and in favor of SAP and
Siemens. SAP argues further that under Texas law, when a contract provision
is ambiguous, extrinsic evidence is admissible to show the parties’ intent.
Because we necessarily conclude that the venue clause is unambiguous as
applied in these circumstances, we do not address these arguments.
18
For the foregoing reasons, we affirm the district court’s
order of remand.
AFFIRMED.
19