UNITED STATES COURT 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 Pine Telephone Company, Inc. (“Pine 

 

*

 After examining the briefs and appellate record, this panel 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 2, 2012

Elisabeth A. Shumaker 

Clerk of Court
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Telephone”) filed it. After Alcatel removed the case to federal court, Pine Telephone 

successfully sought the remand to its chosen 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 venue for Pine Telephone’s 

breach of contract action nor clearly and unequivocally waives Alcatel’s right to 

remove this action to federal 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 merits of a nonjurisdictional 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 (10th Cir. 1997) (quotation 

omitted). Although the district court’s minute order did not detail its reasons for the 

remand, it expressly granted Pine Telephone’s remand motion—a motion in which 

Pine Telephone had sought enforcement of the contractual 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. 
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Addressing a different facet of the jurisdictional inquiry, we note that appellate 

jurisdiction is also proper because the district court’s remand 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 was proper (and neither party argues it was 

not), Alcatel had the right to remove this case to federal court, see 28 U.S.C. 

§ 1441(a), unless it gave up that right as part of the contract 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 contract. That clause reads as follows: 

18.10 Purchaser [Pine Telephone] submits to the personal jurisdiction 

of the state or federal courts located in the State of Texas. Purchaser 

stipulates that venue for adjudication of any dispute arising out of this 

Agreement may be in Dallas County 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 States or elsewhere. 

Aplt. App. at 33 (emphasis added) (quotation omitted). 

 The parties reach differing 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 the action to federal court. 

Pine Telephone acknowledges that the parties 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 
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and prosecute” an action in any proper court with jurisdiction, foreclosed Alcatel’s 

right to remove the action to federal court once Pine Telephone initiated its action in 

its chosen state court 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 the 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 (internal quotation marks omitted) 

(emphasis added). 

We agree with Alcatel, first, that the highlighted language represents only a 

permissive and not a mandatory venue provision. “In particular, the clause refers 

only to jurisdiction [not to a specified venue], and does so in non-exclusive terms 

(e.g., there is no use of the terms ‘exclusive,’ ‘sole,’ or ‘only’).” K & V Scientific 

Co. v. Bayerische Motoren Werke Aktiengesellschaft (“BMW”), 314 F.3d 494, 500 

(10th Cir. 2002). These are indicia of a permissive 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 construed in our prior cases, however. Here, we are 

presented not only with the issue of whether the parties “intended to commit [the 

filing of a suit] to [a specific] court to the exclusion of all others,” SBKC, 105 F.3d 
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at 582, but also whether they intended to foreclose removal to federal court once a 

permissive but appropriate state court forum had been selected. Again, only if such 

an understanding appears clearly and unequivocally 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 interpreting the particular language used in their contract, 

nor have we found any in the waiver-of-removal context. While Pine Telephone is 

correct in asserting that in the presence of ambiguity the clause must be construed 

against Alcatel as drafter, see Milk ‘N’ More, 963 F.2d at 1346, this factor is not 

dispositive. We turn instead to the 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 commentator, the word 

“prosecute” when used in the civil context means “to carry out or engage in a legal 

action; to follow up on a legal claim.” Bryan A. Garner, A Dictionary of Modern 

Legal Usage 706 (2d ed. 1995). The foregoing definition if applied here would not 

clearly and unequivocally guarantee the party filing the action 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 unequivocally signify the suing party’s right to 
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both file and prosecute a legal proceeding to completion within a chosen state court 

forum. 

The choice of venue clause in the parties’ contract does not establish an 

enforceable waiver of Alcatel’s right to remove this action to federal court. The 

judgment of the district court is therefore 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