UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

PINE TELEPHONE COMPANY, INC., an Oklahoma corporation, Plaintiff-Counter-Claim- Defendant-Appellee,

v. ALCATEL-LUCENT USA, INC., a Delaware corporation, f/k/a Alcatel USA Marketing, Inc., Defendant-Counter- Claimant-Appellant. No. 11-7080 (D.C. No. 6:11-CV-00353-JHP) (E.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , ANDERSON , and O’BRIEN , Circuit Judges.
Defendant-appellant Alcatel-Lucent USA, Inc. (“Alcatel”) appeals from an order of the district court remanding this breach of contract action to the Oklahoma state court where plaintiff-appellee Pi ne Telephone Company, Inc. (“Pine

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 2, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Telephone”) filed it. After Al catel removed the case to fe deral court, Pine Telephone successfully sought the remand to its chos en Oklahoma state court forum based on a venue clause in the parties’ contract. Because the clause relied upon by Pine Telephone neither establishes a mandatory state court ve nue for Pine Telephone’s breach of contract action nor clearly and unequivocally waives Alcatel’s right to remove this action to federa l court once filed in state court, we VACATE the order remanding the case to state court and REMAND for further proceedings in the Eastern District of Oklahoma.
I. We begin by establishing our jurisdiction to entertain this appeal. An order remanding a case to the state court from which it was removed based on lack of jurisdiction or a defect in the removal procedure is ordinarily not reviewable on appeal. 28 U.S.C. § 1447(d). But this statutory prohibition is inapplicable to remands “based on a determination on the me rits of a nonjurisdic tional issue,” such as “the district court’s decision to honor a forum selection clause.” SBKC Serv. Corp. v. 1111 Prospect Partners, L.P. , 105 F.3d 578, 580 (10t h Cir. 1997) (quotation omitted). Although the distri ct court’s minute order did not detail its reasons for the remand, it expressly grante d Pine Telephone’s remand motion—a motion in which Pine Telephone had sought enforcement of the contract ual clause. We therefore conclude that the order appealed from was based on the merits of a nonjurisdictional issue and that § 1447(d) does not preclude our review. See SBKC , 105 F.3d at 580.- 3 - Addressing a different facet of the jurisdictional inquiry , we note that appellate jurisdiction is also proper b ecause the district court’s re mand order falls within the collateral order exception to the final judgment rule. See Milk ’N’ More, Inc. v.
Beavert , 963 F.2d 1342, 1344-45 (10th Cir. 1992).
II. So long as diversity jurisdiction wa s proper (and neither party argues it was not), Alcatel had the right to rem ove this case to federal court, see 28 U.S.C. § 1441(a), unless it gave up that right as part of the contr act that forms the basis of the parties’ dispute. Pine Telephone contends that Alcatel did just that, in the last sentence of paragraph 18.10 of the cont ract. That clause reads as follows: 18.10 Purchaser [Pine Telephone] s ubmits to the personal jurisdiction of the state or federal courts locate d in the State of Texas. Purchaser stipulates that venue fo r adjudication of any dis pute arising out of this Agreement may be in Dallas Coun ty or Collin County, Texas. Notwithstanding the foregoing, either party may initiate and prosecute any legal proceeding or seek enforcement of any judgment in any proper court having jurisdiction in the United Stat es or elsewhere. Aplt. App. at 33 (emphasis added) (quotation omitted). The parties reach differi ng conclusions concerning the effect of the highlighted language. Alcatel argues that it represents a permissive venue provision that did not clearly and unequivocally waive Alcatel’s right to remove th e action to federal court. Pine Telephone acknowledges that the par ties did not by the highlighted language designate a mandatory or exclusive venue in which this action had to be brought. But Pine Telephone contends that the above-cited language, giving it the right to “initiate- 4 - and prosecute ” an action in any proper court with jurisdiction, foreclosed Alcatel’s right to remove the action to federal cour t once Pine Telephone in itiated its action in its chosen state cour t forum. Our review “is basically one of contract interpretation, requiring de novo consideration.” Milk ’N’ More , 963 F.2d at 1345. Our aim is to “enforce the agreement between the parties in accordance with its own terms.” SBKC, 105 F.3d at 582. Central to our inquiry, however, is th e legal principle that “a waiver of one’s statutory right to remove a case from a state to a federal court must be clear and unequivocal .” Milk ’N’ More , 963 F.2d at 1346 (interna l quotation marks omitted) (emphasis added). We agree with Alcatel, firs t, that the highlighted language represents only a permissive and not a mandatory venue provisi on. “In particular, the clause refers only to jurisdiction [not to a specified venue], and doe s so in non-exclusive terms (e.g., there is no use of the terms ‘e xclusive,’ ‘sole,’ or ‘only’).” K & V Scientific Co. v. Bayerische Motoren Werk e Aktiengesellschaft (“BMW”) , 314 F.3d 494, 500 (10th Cir. 2002). Thes e are indicia of a perm issive venue provision, see id. , which is insufficient to effectuate a waiver of Alcatel’s right of removal. The provision at issue in this case does not fall entirely within the ambit of permissive venue language c onstrued in our prior cases, however. Here, we are presented not only with the issue of whether the partie s “intended to commit [the filing of a suit] to [a specific] court to the ex clusion of all others,” SBKC , 105 F.3d- 5 - at 582, but also whether they intended to foreclose removal to federal court once a permissive but appropriate st ate court forum had been sele cted. Again, only if such an understanding appears clearly and unequivo cally in the language the parties used will we conclude that Alcatel waived its right of removal. No such clear and unequivocal intent appears here. The parties have not pointed us to any case law in terpreting the particular langua ge used in their contract, nor have we found any in the waiver-of-rem oval context. While Pine Telephone is correct in asserting that in the presence of ambiguity th e clause must be construed against Alcatel as drafter, see Milk ‘N’ More , 963 F.2d at 1346, th is factor is not dispositive. We turn instead to th e plain meaning of the provision. SBKC , 105 F.3d at 581-82. The language here relied on by Pine Telephone permitted it to “initiate and prosecute” a legal proceeding. According to one respected comm entator, the word “prosecute” when used in th e civil context means “to carry out or engage in a legal action; to follow up on a legal claim.” Br yan A. Garner, A Dictionary of Modern Legal Usage 706 (2d ed. 1995). The foregoing definition if applied here would not clearly and unequivocally guara ntee the party filing the acti on the right to pursue its legal proceeding to completion or without removal from state court. Nor does the word “initiate” carry such a connotation. It means merely to “ begin, open , or introduce .” Id. at 448. Finally, combining the two words using the conjunctive phrase “and” does not clearly and unequivoca lly signify the suing party’s right to- 6 - both file and prosecute a legal proceeding to completion within a chosen state court forum. The choice of venue clause in the part ies’ contract does not establish an enforceable waiver of Alcatel’s right to re move this action to federal court. The judgment of the district court is ther efore VACATED and the case is REMANDED for further proceedings in accordance with this order and judgment.

Entered for the Court
Stephen H. Anderson Circuit Judge