OCWEN ORLANDO HOLDINGS CORP., A FLORIDA CORPORATION, PLAINTIFF-APPELLEE,
v.
HARVARD PROPERTY TRUST, LLC, A DELAWARE LIMITED LIABILITY COMPANY, D.B.A. BEHRINGER HARVARD, DEFENDANT-APPELLANT

11th Cir. | 2008-05-12
No. 07-13920
Before BARKETT, FAY and STAPLETON, Circuit Judges.
526 F.3d 1379 Court of Appeals for the Eleventh Circuit (2008) Positive Treatment
Cited by 4 cases
Opinion of the Court
BARKETT, Circuit Judge:

Shortly after entering into the agreement, Ocwen sued Harvard in Orange County Circuit Court for declaratory relief and breach of contract. Harvard removed the suit to federal court, the district court remanded it to state court on the basis of the above-quoted language in the agreement, and Harvard now appeals. Harvard argues that the language of the forum selection clause — “waive any right to transfer” — waived only its right to transfer the suit for the convenience of the parties and witnesses but did not waive its right to remove the case from state to federal court. Forum selection clauses are interpreted according to ordinary contract principles and may constitute waivers of the right to remove. Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F. 3d 1269, 1271-72 (11th Cir.2004); Snapper, Inc. v. Redan, 171 F. 3d 1249, 1260-61 (11th Cir.1999) (“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.”).

They are frequently categorized as either permissive or mandatory. “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.’” Global Satellite, 378 F. 3d at 1272 (quoting Snapper, 171 F. 3d at 1262 n. 24).

Notwithstanding this oft-repeated taxonomy, courts have implicitly recognized an intermediate category that provides for permissive jurisdiction in one forum that becomes mandatory upon the party sued. In Snapper, for example, we found that although the contract at issue permissively authorized suit in one forum, the forum became “ ‘mandatory’ as to the [parties sued] because it requires an absolute submission by them to the jurisdiction of whichever of these fora [the suing party] chooses.” 171 F. 3d at 1262. 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. AFFIRMED. . Ocwen argues that the conspicuous capitalization of the forum selection clause in the agreement reinforces its importance. We do not consider that argument here.

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  • Overlook Gardens Props., LLC v. Orix USA, L.P., 927 F.3d 1194 (11th Cir. 2019)
    …Polk County v. Prison Health Servs., Inc., 170 F.3d 1081, 1083 (11th Cir. 1999); see FindWhere Holdings, Inc. v. Sys. Env't Optimization, LLC, 626 F.3d 752, 755 (4th Cir. 2010) (listing cases); Ocwen Orlando Holdings Corp. v. Harvard Prop. Tr., LLC, 526 F.3d 1379, 1380–81 (11th Cir. 2008) (implying through exercise of jurisdiction that we have appellate authority to review remand orders based on interpretation and enforcement of a forum selection clause); see also Pub. Sch. Ret. Sys. of Mo. v. State St. Bank…
  • Liles v. Ginn-La West END, 631 F.3d 1242 (11th Cir. 2011)
    …ssengers from pursuing legitimate claims.” See id. . Forum-selection clauses are interpreted under ordinary contract principles and may be categorized as permissive, mandatory, or hybrid. See Ocwen Orlando Holdings Corp. v. Harvard Prop. Trust, LLC, 526 F. 3d 1379, 1381 (11th Cir.2008). "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.” Id. (quotation and…
  • Brigade Holdings, Inc. v. Aegis Bus. Credit, LLC (M.D. Fla. 2021)
    …the action to Maryland. However, this clause is not a mandatory forum selection clause. Rather, it is a “hybrid” clause, permitting Aegis to elect whether to require suit in Florida. See Ocwen Orlando Holdings Corp. v. Harvard Property Trust, LLC, 526 F. 3d 1379, 1381 (11th Cir. 2008). As Aegis has not elected to do so, the clause remains merely permissive. As such, it is only one of a number of factors to be weighed in the analysis of whether to transfer the case. See CSX Intermodal Terminals, 2018 WL 49…

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