### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

Nos. 11-30293, 11-30500 Summary Calendar

LIGHTHOUSE MGA, L.L.C., Plaintiff - Appellant

v. FIRST PREMIUM INSURANCE GROUP, INCORPORATED, Defendant - Appellee

_______________________________________________________________________ FIRST PREMIUM INSURANCE GROUP, INCORPORATED, Plaintiff - Appellee

v. LIGHTHOUSE MGA, L.L.C., Defendant - Appellant

Appeals from the United States District Court for the

Eastern District of Louisiana (10-CV-4635)

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 7, 2 011 Lyle W . Cayce Clerk Case: 11-30293 Document: 00511657518 Page: 1 Date Filed: 11/07/2011Nos. 11-30293, 11-30500

PER CURIAM: * In Augu s t 2009, Lighthouse MGA, L.L.C. (“Lighthouse”) and First Premium Insurance Group, Inc. (“First Premium”) entered i n t o a marketing services contract. We are asked to decide whether the forum selection clause in their contract, selecting a state court, is enforceable. We find that the clause is enforceable and affirm the district court’s dismissal of Lighthouse’s suit against First Premiu m . I n addition, we dismiss Lighthouse’s appeal of the district court’s decision to r e m a n d to state court First Premium’s suit against Lighthouse. I. Resting on diversity jurisdiction, Lighthouse sued First Premium in the United States District Court for the Eastern District of Louisiana , seeking a declaratory judgment under Louisiana law that First Premium had breached and was entitled to no further fees under their contract. First Premium then sued Lighthouse in the 22nd Judicial District Court, Parish of St. Tammany, of the State of Louisiana, seeking a declaratory judgment that their contract was enforceable under Louisiana law, that First Premium did not breach, and that Lighthouse was bound to pay First Premium a fee under the contract. First Premium filed a motion to dismiss the federal complaint pursuant to Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure , seeking to enforce the forum selection clause. The forum selection clause specified that any suits related to the contract were to be brought solely in Louisia n a ’ s 22nd Judicial District Court, Parish of St. Tammany. The di s t r i c t c ourt (Africk, J.) granted First Premium’s motion to dismiss the federal complaint and dismissed the case without prejudice to Lighthouse filing its claims in state court.

Pur sua nt to 5 T H C IR . R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. 2 Case: 11-30293 Document: 00511657518 Page: 2 Date Filed: 11/07/2011Nos. 11-30293, 11-30500

Lighthouse then promptly removed t h e state-filed case to the federal district court. The district court granted First Premium’s motion to remand to state court pursuant to 28 U.S.C. § 1447(c), citing its prior decision, for want of jurisdiction with respect to any legal action or proceeding relating to the parties’ contract. 1 Lighthouse timely appealed the district court’s orders in both cases, here consolidated for review. II. A. Turning first to the dismissal of Lighthouse’s suit against First Premium,

we review de novo a district court’s decision to enforce a forum selection clause. 2 The district court did not specify whether its dismissal of Lighthouse’s suit was pursuant to Rule 12(b)(1) or Rule 12(b)(3) of the Federal Rules of Civil Pro c edure

. “‘Our de novo review under either Rule 12(b)(1) or Rule 12 (b ) ( 3 )

3 requires us to view all the facts in a l i gh t m o st favorable to the plaintiff.’” 4 “‘Moreover, under both Rule 12(b)(1) and Rule 12(b)(3), the court is permitted to look at evidence in the record beyond simply those facts alleged in the complaint and its proper attachments.’” 5

See First Prem ium Ins. Gr o u p , In c . v. Lighthous e MG A, L.L. C. , Civil Acti on No. 1 11–613, 201 1 W L 193 6298, at*2 ( E.D

. La. May 18, 2011)

.

Gi nter ex rel

. Bal la rd, Bel che r, Prend erga st & LaPor te , 536 F

. 3d 439, 441 (5t h Cir. 2 2008)

. This cour t has not yet ans we re d “th e ‘eni gmat ic ques tio n of wh ethe r mo tio ns to

3 dis mi ss on the bas is of for um se lect ion claus es are pr ope rly brou ght as mo tio ns unde r [Rule ] 12(b )( 1) [or] 12(b )( 3), ’” Lim v. Of fs hore Spec ia lty Fabr ic ators, Inc. , 404 F.3d 898, 902 (5t h Cir. 2005) (al ter atio n in origi nal) (quo ting Ha ynsw orth v. The Corp ora tion , 121 F.3d 956, 961 (5t h Cir. 19 9 7 ) ) , a n d w e n e ed not res olve that iss ue here

. See Am bra co Inc. v. Boss cl ip B V , 570 F.3d233 , 238 n.1 (5t h Cir

. 2009)

. Am bra co , 570 F.3d at 237- 38 (quo ting Gi nter , 536 F.3d at 448 (D ennis , J., dis se nting) ). 4
Id. at 238 (

quot ing Gi nter , 536 F.3dat449 ( De nnis , J., d iss enti ng))

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Federal law determines whether a d i strict court must enforce a forum selection clause. Forum selection c l a u s e s are presumptively enforceable, and 6 “where a litigant . . . attempts to have a case dismissed based on a contractual provision r e q u i ring suit to be filed in state court, the forum-selection clause should be upheld unless the party opposing its e n forcement can show that the clause is unreasonable.” A forum-selection clause may be deemed unreasonable 7 where the party challenging application of the clause makes a “clear showing” that:
(1) t he incorporation of the forum selection clause into the agreement was the product of fraud or overreaching; ( 2 ) the party seeking to escape enforcement ‘will for all practic a l purposes be deprived of his day in court’ because of the grave inconvenience or unfairness of the selected forum; (3) the fundamental unfairness of the chosen law will deprive the plaintiff of a r e m e dy; or (4) enforcement of the forum selection clause would contraven e a s tro n g public policy of the forum state. 8
The forum selection clause here read as follows: The agreement shall be governed by and interpreted in accordance with the laws of the State of Louisiana withou t r eference to principles of conflicts of law. [Lighthouse] irrevocably and unconditionally submits in any legal action or proceeding related to this agreement or for recognition of any judgment in respect thereof, to the exclusive juris diction of the 22 Judicial District Court, nd Parish of St. Tammany, State of Louisiana

. 9

Al li anc e He al th Group LLC v. Bri dging He al th Op tions LLC, 553 F.3d 397, 399 (5t h 6 Cir. Mis s. 2 0 0 8)(“Fed eral law app lies to det erm ine the enf orc eabil ity of for um se lect ion claus es in bothd ivers ity and fed eralque st ion cas es .” ( cit atio ns and quot atio n m ark s om itt ed) ).
Id. 7
Ha ynsw orth , 121 F.3dat963

. 8
R. 63 ( No. 11- 30293)

. 9
4 Case: 11-30293 Document: 00511657518 Page: 4 Date Filed: 11/07/2011Nos. 11-30293, 11-30500

First Premium’s general counsel dr a fted the marketing services contract that included this forum selection clause. The general counsel was also a shareholder of the company and the brother of First Premium’s President. Lighthouse argues that the forum selection c l a u se is unreasonable and should not be enforced on the basis that (1) t h ere is a constitutional right to diversity jurisdiction, and trial before a court in the forum and venue designated by the contract will deprive Lighthouse of a court free of “Local Bias”; (2) the 1 0 incorporation of the forum selection clause in the contract re s u lted from the drafting attorney’s violation of Louisiana’s Rules of Professional C o n d uct for attorneys and from fraud an d overreaching; and (3) enforcement of the clause would contravene a “strong public policy” of the State of Louisiana set forth in its Rules of Professional Conduct. None of those arguments is availing. 1 1 First, Lighthouse’s argumen t t hat it has a constitutional right to have disputes related to its contract with Fir s t P r e m i u m heard in a federal court pursuant to the court’s diversity jurisdiction is not properly before us as it was not raised in the court below. Even if it were properly before this court, 1 2 Lighthouse’s first argument is without merit. The United States Constitution does not preclude parties to a contract from waiving their rights to have contract-related disputes heard in federal court. I n m o r e than one case, this court has reviewed a forum selection clause that purported to give state courts exclusive jurisdiction over actions connected to the contract a n d h eld that the

See App ellant ’s Br. (N o. 11-3 0293) at 25-2 6 (quo ting Gu aranty Trus t Co. v. York , 326 1 0 U. S. 99 (194 5))

.

Id. at 30-3 1. 1 1
In its Me mo rand um in Sup por t of Ex Part e Mo tio n for Con t i n u a n c e of He aring in 1 2
cas e num ber 2:10 -c v-4635 , Lightho use me rely st ated that “any juris dic tio nal claus e in a cont rac t mus t pr ovide a kn ow ing and intenti onal waiver of diver sit y juris dic tio n.” R. 66 (N o. 11-3 0293) ; see also id. at 72 (s tat ing, in the Op pos itio n to Firs t Prem ium ’s Mo tio n to Di sm iss , that Lightho use “w as unaw are that it wa s wa iving its right to the p r o t ect ion of fed eral juris dic tio n”)

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forum selection clause was an enforceable waiver of a party’s right to have disputes connected to the contract heard in a federal forum. 1 3 To the extent that Lighthouse is a r gu i ng that it did not knowingly and willingly waive its right to be heard in a federal court, it is not supported by the record. Lighthouse contends t h at its waiver was not knowing and voluntary because First Premium’s general counsel failed to highlight for Lighthouse the forum selection clause and other specific provisions in the parties’ contract. This contention is unavailing. Under Louisiana law: “[a] person who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, or that it was not explained or that he did not understand it.” Th e r e f o re, Lighthouse cannot maintain that it did not 1 4 knowingly and willingly waive dive r s i t y jurisdiction on the basis that First Premium’s general counsel did not discuss the forum selection clause with Lighthouse or warn Lighthouse of the clause’s existence. 1 5 Second, assuming, without deciding, that a violation of Louisiana’s Rules

o f Professional Conduct for attorneys would provide a basis for this c o u r t t o deem the forum selection clause in the parties’ contract unreasonable, no evidence in the record supports Lighthouse’s claim that the incorporation of the forum selection clause into the parties’ contract resulted from a violation of Louisiana’s Rules of Professional Conduct for attorneys. 1 6

See Ensco Int'l Inc. v. Ce r ta i n U n d e rw ri ters at Lloy d’s , 579 F.3d 442, 449 (5t h Cir. 1 3 2009) ; Coll in County v. Sie me ns Bus. Serv s. , 250 F. App ’x 45, 52 (5t h Cir. 2007) (unp ublis hed) ; Ar gyllEqui tiesLLC v. Pa oli no , 211 F. App ’x 3 17, 318 (5t h Cir

. 2006) (unpub lis hed)

. Smi th v

. Leger , 439 So. 2d 1203, 120 6 ( La. App

. 1stCir

. 1983)

. 1 4
See App ellant ’s Br

. (N o. 11-3 0293) at26- 27. 1 5Light hous e a pp ears t o argue thatt he for um se lect ion claus e w as inco rp orat ed into 1 6 the cont rac t thr ough “f raud” or “over reac hing” beca use the inco rp orat ion of the claus e res ulte d fr om violat ions of Louis iana’ s Rules of Prof es sio nal Condu ct for att orne ys. See App ellant ’s Br. (N o. 11-3 0293) at54- 56, 61. Lightho use d oes no t allegeany fac ts orm ak e a ny argum ents in 6 Case: 11-30293 Document: 00511657518 Page: 6 Date Filed: 11/07/2011Nos. 11-30293, 11-30500

The first two Rules of Professional Conduct cited by Lighthouse are Rule 1.7, “Conflict of Interest: Current Clients , ” a n d Rule 1.8, “Conflict of Interest: Current Clients: Specific Rules.” Rule 1.7 states that “a lawyer shall not represent a client if the representation involves a conc u r r e n t conflict of interest.” Rule 1.8 states that, as a general r u l e , “ [ a] l awyer shall not enter

1 7 into a busine s s t r a n s action with a client or knowingly acquire an ownership,
posse ssory, security, or other pecuniary interest adverse to a client.” 1 8 Li ghth o u s e argues that First Premium’s general counsel violated those two rul e s because he “chose to represent both [Lighthouse and First Premium] by drafting

a contract for both of them to sign, when he knew he had a . . . p e c u niary interest [as a shareholder of First Premium] which gave him a clear and present conflict.” However, Lighthouse’s Director of Marketing has affirmed that the

1 9 general counsel was “the attorney for First Premium,” and there is no evidence 2 0 i n the record that the general counsel ever undertook to give legal a dv i c e t o Lighthouse or purported to draft the contract on Lighthouse’s behalf. As First Premium notes, even if Lighthouse subjectively b elieved that First Premium’s

sup por t of its clai m of fr a u d or overr each ing beyond the fac ts that it cit es in sup por t of its c l a im that the for um se lect ion claus e wa s inco rp orat ed into the cont rac t as a re s u l t o f violat ions of

t he Rules of

Pr ofe ss ional Condu ct. To the exten t that Lightho use ’s r efe renc e t o “f raud” or “over reac hing” is anot he r a rgum ent that it did not legally cons ent to the for um se lect ion claus e, see id. at 54 (quo ting La. Civ. Code ar t s . 1 7 7 9 , 1 8 1 9, 1847) , as we have alre ady note d, ther e is no evid ence that Lightho use unk now ingly or involuntar ily wa ived its rightt o h ave d isp utes r elat ed to the cont rac t hear d in fed eralc ourt

. La. S t. BarAs s’ n. Art. XVI § 1.7. 1 7
Id. § 1.8. 1 8Ap pel lant’ s Br. ( No. 11- 30293) at34

. 1 9
R. 75 (N o. 11-3 0293)

. 2 0 7 Case: 11-30293 Document: 00511657518 Page: 7 Date Filed: 11/07/2011Nos. 11-30293, 11-30500

g e neral counsel was also Lighthouse’s attorney, such a belief would n o t b e reasonable. 2 1 The third R u l e of Professional Conduct cited by Lighthouse is Rule 4.3. That rule states: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not st a t e o r imply that the lawyer is disinterested. When the lawyer knows or reasonably sho u l d k now that the unrepresented person misunderstands the lawyer's role in a matter, the lawyer shall make reasonable efforts to correct the misunde r s t a n ding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. 2 2
In this case, there is no evidence that the general counsel ever stated or implied to Lighthouse that he was disinterest e d o r t h at he gave any legal advice to Lighthouse. Nor is there any evidence that Lighthouse misunderstood his role

as counsel for First Premium, let alone any evidence that he knew or should have known that Lighthouse misunderstood his role. As First Premium notes, 2 3

no authority supports Lighthouse’s contention t h a t First Premium’s general counsel provided legal advice to Lighthouse merely by drafting the contract. The fourth Rule of Professional Conduct cited by Lighthouse is Rule 8.4(c):

a lawyer may not “[e]ngage in conduct involving dis h o n e s t y , fraud, deceit or misrepresentation.” There is no evidence that the general counsel made any 2 4

See Zic hic hi v. Jef

fe rso n Am bula tory Surger y Ctr., LLC, Civil Acti on No. 07-2 774, 2 1 2008 WL 2 859232, at*4( E.D

. La. July 2 2, 2008) ( “It wo uld be unrea so nable f or D r. Zichic hi to think that he wa s es tabl ish ing an att orne y-cl ient rela tio nshi p wi th an adver se p a r t y 's law yer. ”)

. La. S t. BarAs s’ n. Art. XVI § 4.3. 2 2
SeeR. 75 (N o. 11-3 0293)

. 2 3
Id. § 8.4( c)

. 2 4 8 Case: 11-30293 Document: 00511657518 Page: 8 Date Filed: 11/07/2011Nos. 11-30293, 11-30500

false or misleading statements to Lighthouse. To the extent that Lighthouse’s argument is based on the general coun s e l ’ s failure to point out or explain the forum selection cla u s e to Lighthouse, First Premium’s general counsel did not have a fiduciary relationship with Lighthouse that would give rise to a duty to convey that information under Louisiana law. Lighth o u s e h as not 2 5 demonstrated that the forum selection clause was incorporated into the parties’ contract due to a violation of Rule 8.4(c). Because Lighthouse has not demonstrated that enforcement of the forum selection clause in the parties’ marketing se rv i ces contract would be unreasonable, we affirm the district court’s dismissal of Lighthous e ’ s s u i t against First Premium. B. We next t urn to the district court’s decision granting First Premium’s motion to remand its suit against Lighthouse to Louisiana sta t e court. “Congress has severely circumscribed the power of federal appellate courts to review remand orders.” According to 28 U.S.C. § 1447(d), “an order remanding 2 6

a case to the State court from which it was removed is not reviewable on appeal

or otherwise.” However, the Supreme Cou rt has held that “§ 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d).” Thus, as this 2 7 court has previously explained, we “lack[] jurisdiction under § 1447 if the district court based its remand order on either a lack of subject matter jurisdiction or a

See, e. g. , Becne l v. Gr odner , 982 So. 2d 891, 895 (La. App

. 4th Cir. 2008) ( “ In the 2 5 ins tant cas e, ther e wa s no sp ecia l fid uciar y rela tio nshi p betw een Mr

. Becne l and his opp os ing couns el that wo uld give ris e to a dut y to dis clos e. In negot iati ng and per fec ting the se ttl em ent

. . ., t he only fid uciar y d uty the Mc Gl inche y d efe ndant s ow ed wa s to thei r clie nt. ”)

.

Schex nayd er v. Enter

gy La ., Inc. , 394 F.3d280 , 283 (5t h Cir

. 2004)

. 2 6 Qu ac kenbus h v

. Al ls tate Ins. Co. , 517 U. S. 706 , 711- 12 ( 1996)

. 2 7 9 Case: 11-30293 Document: 00511657518 Page: 9 Date Filed: 11/07/2011Nos. 11-30293, 11-30500

defect in removal procedure.” “[W]e will only rev i e w remand orders if the 2 8 district court affirmatively states a non-1447(c) ground for remand.” 2 9 In this case, the district court stated explicitly that its decision to remand First Premium’s suit was based on lack of subject matter jurisdiction, one of the grounds specified in 28 U.S.C. § 1447(c). T h e district court did not 30

“ af f ir m atively state[] [any] non-1447(c) ground for remand.” Therefore, we l ac k 3 1 jurisdiction to review t h e d istrict court’s order of remand, and Lighthouse’s appeal from that order is dismissed for want of jurisdiction. III. The district court’s dismissal of Lighthouse’s suit against First Premium i s AFFIRMED, and Lighthouse’s appeal from the district court’s or d e r remanding to state court First Premiu m ’ s s uit against Lighthouse is DISMISSED.

Schex nayd er , 394 F.3d at 283 ( c i ting Qu ac kenbus h , 517 U. S. at 712; 28 U. S. C. 2 8 § 1 447( c) ).

Smi th v. Texas Chil dre n’s Ho sp . , 172 F.3d 923, 927 (5t h Cir. 1999) (quo tat ion mar ks 2 9 and cit atio n o mi tte d)

.

First Prem ium , 2011 WL 1936298 , at *1- *2 (“A dis tri ct cour t mus t rem and a cas e to 3 0 st ate cour t if, at any tim e bef ore fina l judgm ent, it app ears that the cour t lack s subject mat ter juris dic tio n. 28 U. S. C. § 1447( c)

. . . . For the reaso ns set for th in this Court ’s pr evious ord er, the Court find s that Lightho use has fai led to sus tain its burd en of pr oving that this Court has juris dic tio n o ver clai ms r elat ing t o t he Agreem ent. ”)

.

Smi th , 172 F.3dat927 ( quot atio n m ark s and cit atio n o mi tte d)

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