United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.
action is before the Court on Motion to Remand (Doc. 18)
filed by Plaintiff Healthcare & Diagnostic Solutions,
Inc., (“Healthcare”) to which the Defendants,
Patient Care Pharmacy Corporations (“Patient
Care”) and Susan Alexander Guthrie
(“Guthrie”) have filed a response in opposition
(Doc. 23), and Healthcare has filed a reply. (Doc. 24). This
matter is now ripe for consideration and has been referred to
the undersigned Magistrate Judge for entry of a report and
recommendation under 28 U.S.C. § 636(b)(1)(B)-(C) and
Federal Rule of Civil Procedure 72(b). Upon consideration,
and for the reasons stated herein, the undersigned
RECOMMENDS that Healthcare's Motion to
Remand (Doc. 18) be DENIED.
February 8, 2018, Healthcare filed a complaint in the Circuit
Court of Baldwin County, Alabama, alleging a number of
state-law causes of action against the Defendants arising
from breach of contract, fraud, tort of outrage, open
account, account stated and goods sold and delivered. (Doc.
1). In addition, Healthcare filed interrogatories and request
for production with the Baldwin County Circuit Court. Patient
Care and Guthrie responded by filing notice of removal.
April 2, 2018, Patient Care and Guthrie removed the case to
this Court under 28 U.S.C. § 1332, 1441 and 1446, while
preserving any and all defenses under Rule 12 of the Federal
Rules of Civil Procedure. (Doc. 1). Patient Care and Guthrie
contend removal is proper under §1441(a) and (b),
because the Court has original jurisdiction over the case at
bar based on diversity of citizenship. In addition, this
Court has original jurisdiction under 28 U.S.C. §
1332(a), which provides the district courts original
jurisdiction of civil actions between citizens of different
states where, the amount in controversy exceeds $75, 000,
exclusive of interest and costs.
moves for remand under 28 U.S.C. § 1447(c) (Doc. 18) on
the grounds, in sum, that the forum selection clause
contained within the Customer Credit Application
(“Application”), signed by Patient Care and
Guthrie, limits the parties to the jurisdiction of Baldwin
to 28 U.S.C.A §1441, “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 where such action is pending.” Patient Care is
incorporated in Louisiana, with its principal place of
business in Louisiana. Guthrie is a citizen of Louisiana,
residing in Louisiana. Healthcare is incorporated in Alabama,
with its principal place of business in Alabama. Under
§1441 and §1332 (a) the civil action is removable
due to complete diversity among all parties. Healthcare does
not dispute the diversity of the parties or the amount in
controversy. (Doc. 18 at 2-3).
to suit, Guthrie signed the application provided by
Healthcare, in her capacity as president and CEO of Patient
Care Pharmacy Corporation on May 21, 2009. (Doc.18). A forum
selection clause (“FSC”) is contained within the
Applicant consents to the jurisdiction of the State of
Alabama, County of Baldwin, and consents to reimburse H.D.S.
for all reasonable costs and fees incurred in any pursuit,
recovery, or collection action.
argues Patient Care expressly consented to the jurisdiction
of Baldwin County after signing the application and cannot
revoke consent by removing the case to federal court.
(Doc.18). In addition, Healthcare represents that although
the clause is permissive, it is mandatory upon initiation of
the suit. (Doc.18).
Eleventh Circuit generally characterizes the language of
forum selection clauses as either “permissive” or
“mandatory”. See Global Satellite Comm. v.
Starmill U.K. 378 F.3d 1269, 1272. “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 required or desirable.”
Id. “A permissive clause authorizes
jurisdiction in a designated forum but does not prohibit
litigation elsewhere. A mandatory clause, in contrast,
‘dictates an exclusive forum for litigation under the
contract.'” Snapper v. Redan, 171 F.3d at
selection clause may be “permissive, ” by
authorizing jurisdiction in a designated forum but does not
prohibit litigation elsewhere… or a
“hybrid” form, that provides for permissive
jurisdiction in one forum, which becomes mandatory upon the
party sued.” Ocwen Orlando Holdings v. Harvard
Prop. Trust,526 F.3d 1379, 1380 (11th Cir.
2008). In Ocwen, the court held a hybrid forum
selection clause permits either party to commence suit in a
state trial court, and that upon commencement of such suit
the other party waived right to “transfer” action