a a)

No. 03 C 7827 Page3

Garza wrote in dissent, the “contract simply does not address whether the suit should be
adjudicated ultimately in federal or state court.” Id. at 798,

Likewise, in Snapper, Inc. vy. Redan, 171 F.3d 1249 (11 Cir. 1999), the court
determined that the defendants had waived their right of removal. Again, that specific clause
was much more restrictive, granting to the plaintiff the exclusive right to choose the forum.
id, at 1260. The defendants also expressly waived all rights based on their residency, which
the court found included the right to remove as well as the right to object to personal
jurisdiction. Id, As stated above, there is no such waiver of. rights at issue here. Instead, the
contract simply places a reasonable restriction on the location of the litigation.

CONCLUSION

For the foregoing reasons, plaintiff’s motion to remand is denied.

JAMES B. MORAN
nior Judge, U.S. District Court

GQ. 18 2004,


ce MRE grr Form cer ~ * an ~*~
. United States District Court, Northern District of Illinois

Name of Assigned Judge James B. Moran Sitting Judge If Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 7827 DATE 2/18/2004
CASE NEWLY WEDS FOODS, INC. vs. A.M. TODD GROUP, INC.
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.}

MOTION:
MEMORANDUM OPINION AND ORDER
DOCKET ENTRY:
(y o Filed motion of [ use listing in “Motion” box above.]
(2) oa Brief in support of motion due.
(3) Oo Answer brief to motion due___. Reply to answer briefdue___
(4) Oo Ruling/Hearingon____setfor at
(5) Q Status hearing{held/continued to] [set for/re-set for]on__—set for att
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___—setfor_———s at.
(7) a Trial[set for/re-set for]on_ at
(8) Oo [BenclyJury trial] [Hearing] held/continued to_ at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) CiLocal Rule 41.1 OFRCP41(a)(1) COFRCP41(a)(2).

do) [Other docket entry} Enter Memorandum Opinion And Order. Plaintiff's motion to remand is
denied.

daly ag [For further detail see order attached to the original minute order.}

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

a | Docketing to mail notices.

Mail AO 450 form.

Viena pee ces
Copy to judge/magistrate judge, 1 ¥ ?
courtroom eo
LG deputy's he
initials
Date/time received in
central Clerk's OMtice



an) ~

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION = aatre

NEWLY WEDS FOODS, INC., a Delaware ) OCCUETED
corporation, ) FEB I 9 2004

Plaintiff, }

vs. } No. 03 C 7827

A. M. TODD GROUP, INC., a Michigan }
corporation, )

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Newly Weds Foods, Inc. filed this action against defendant A.M. Todd Group,
Inc. in the Circuit Court of Cook County, [linois, alleging breach of contract. Defendant
removed the case to this court and plaintiff filed a motion to remand, arguing that the
purchase agreement prohibits removal. For the following reasons, plaintiff’s motion is denied.

Plaintiff's claims concern alleged violations of a purchase agreement executed by the
parties on October 1, 2000. Section 11.13 of that agreement provides:

11.13 Submission to Venue. Purchaser and Seller hereby irrevocably submit to
the exclusive jurisdiction of any state court located within the County of Cook,
State of Dlinois, or any federal court within the Northern District of Dlinois.
Purchaser and Seller hereby irrevocably acknowledge that (1) the sole and
exclusive appropriate venue for any suit or proceeding shall be in such a court,
(ii) all claims shail be heard and determined exclusively in such a court, (iii) any
such court shall have exclusive jurisdiction over the person of Purchaser and
Seller and (iv) each hereby waives any and all objections to personal or subject
matter jurisdiction as they may relate to an application for such injunctive relief
in a suit or proceeding brought before such a court in accordance with the
provision of this Section 11.13.

Forum selection clauses should be enforced unless they are unjust or unreasonable.

\O



A ~

No. 03 C 7827 Page 2

M/S Bremen y. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972). In some cases, such a clause may
constitute waiver of defendant’s right to remove a suit to federal court. Newman/Haas Racing
y. Unelko Corp., 813 F.Supp. 1345, 1347 (N.D. IL 1993). Any waiver must be clear and
unequivocal. Oberweis Dairy, Inc. v. Maplehurst Farms, Inc., 1989 WL 2078, *1 (N.D. IL).

Section 11.13 represents the parties’ consent to the jurisdiction of any state or federal
court within a geographic region, not the waiver of defendant’s right to remove. See
Newman/Haas, 813 F. Supp. at 1347. There are innumerable ways the parties could have used
the forum selection to limit defendant’s right to remove, yet they failed to do so. See Euzzino
y. London & Edinburgh Ins. Co. Ltd., 228 F. Supp. 431 (N.D. IIL 1964) (holding that a clause
explicitly stating that defendant must submit to jurisdiction at the request of the plaintiff
constitutes a waiver of the right to remove). Clauses (iii) and (iv) do not change this result.
Clause (iii) simply prohibits a party from filing a competing lawsuit in another jurisdiction
with the goal of circumventing the choice-of-venue clause, and clause (iv) deals solely with suits
for injunctive relief, eliminating the defense of Jack of personal jurisdiction. These clauses
cannot be construed as demonstrating an unequivocal waiver by defendant of its right to
remove a lawsuit to federal court.

The cases upon which plaintiff relies are easily distinguishable. In Waters v. Browning-
Ferris Industries, Inc., 252 F.3d 796 (5" Cir. 2001), the court found that a similar clause
constituted a knowing waiver of the right to remove. The clause in Waters, however, explicitly
stated that the “Company” (the defendant in the case) irrevocably agreed to jurisdiction in the
venue chosen by the plaintiff. Id. at 797. The venue clause in the present case binds both

parties to Illinois rather than allowing one party to choose the forum. Moreover, as Judge