PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-3526

____________

CARLYLE INVESTMENT MANAGEMENT LLC; TC 

GROUP LLC; TCG HOLDINGS LLC; DAVID M. 

RUBENSTEIN; WILLIAM E. CONWAY, JR.; JAMES H. 

HANCE; JOHN C. STOMBER; MICHAEL J. ZUPON; 

DANIEL A. D'ANIELLO

v.

MOONMOUTH COMPANY SA; PLAZA MANAGEMENT 

OVERSEAS SA; PARBOLD OVERSEAS LTD.; LOUIS 

J.K.J. REIJTENBAGH; STICHTING RECOVERY CCC

PLAZA MANAGEMENT OVERSEAS SA,

 Appellant

On Appeal from the United States District Court

for the District of Delaware

(D. C. No. 1-12-cv-01732)

District Judge: Honorable Sue L. Robinson

Argued on June 4, 2014
2

Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges

(Opinion filed: February 25, 2015)

Michael F. Bonkowski, Esquire 

J. Kate Stickles, Esquire

Cole, Schotz, Meisel, Forman & Leonard, P.A.

500 Delaware Avenue, Suite 1410

Wilmington, DE 19801

Alan Kolod, Esquire (Argued)

Mark N. Parry, Esquire

Moses & Singer

405 Lexington Avenue

New York, NY 10174

Counsel for Appellant

Shannon E. German, Esquire

Morris, Nichols, Arsht & Tunnell

1201 North Market Street

P.O. Box 1347

Wilmington, DE 19899

Brian C. Rabbitt, Esquire

Sarah F. Teich, Esquire (Argued)

Robert A. Van Kirk, Esquire

Richard H. Wiegmann, Esquire

Williams & Connolly

725 12th Street, N.W.

Washington, DC 20005

Counsel for Appellees
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O P I N I O N OF THE COURT

ROTH, Circuit Judge:

Defendant Plaza Management Overseas S.A. appeals 

the District Court’s order remanding this case to Delaware 

Chancery Court pursuant to a forum selection clause in a 

2006 contract between one of Plaza’s affiliated companies 

and one of plaintiffs’ affiliated companies. For the reasons 

that follow, we will affirm the judgment of the District Court.

I. Background

Plaintiffs are Carlyle Investment Management, L.L.C., 

a large publicly traded investment management firm; two 

affiliated entities, TC Group, L.L.C. and TCG Holdings,

L.L.C.; three founders and officers of Carlyle, David 

Rubinstein, Daniel D’Aniello, and William Conway, Jr.; and 

three Carlyle-affiliated former directors of Carlyle Capital 

Corporation Ltd. (CCC), James Hance, John Stomber, and 

Michael Zupon. Defendants are Louis J.K.J. Reijtenbagh; 

three entities he owns and controls, Plaza, Moonmouth 

Company S.A., and Parbold Overseas Ltd.; and an affiliated 

Dutch company, Stichting Recovery CCC. The record 

indicates that Plaza is the only corporate defendant that has 

not been dissolved.

CCC was an investment fund incorporated in 2006 in 

Guernsey, a British Crown dependency in the English 

Channel. CCC invested primarily in residential mortgagebacked securities issued by Fannie Mae and Freddie Mac. In 
4

December 2006, Moonmouth purchased three million Class B 

shares of CCC for $60 million under a contract known as the 

2006 Subscription Agreement. Only Moonmouth and CCC 

were parties to the Subscription Agreement. Plaza, in its 

capacity as director of Moonmouth, signed the Subscription

Agreement on Moonmouth’s behalf. Plaza and Moonmouth 

were owned and controlled by Reijtenbagh. Carlyle signed 

the Subscription Agreement on behalf of CCC as its 

investment manager. The Subscription Agreement contained 

the following forum selection clause, which is the subject of 

this litigation: “The courts of the State of Delaware shall 

have exclusive jurisdiction over any action, suit or proceeding 

with respect to this Subscription Agreement . . . .” The 

Subscription Agreement also included a choice of law clause, 

specifying that Delaware law was to govern.

In March 2008, as the global financial crisis depleted 

CCC’s cash reserves, CCC entered liquidation. A court in 

Guernsey appointed liquidators (the CCC Liquidators) to 

oversee liquidation of the company. In July 2010, the CCC 

Liquidators sued Carlyle and the other plaintiffs in Guernsey 

for alleged breach of fiduciary duties owed to CCC.

In the fall of 2009, Reijtenbagh sought Carlyle’s 

permission to sell to various third parties portions of 

investments in Carlyle-affiliated funds that he held through a 

different investment entity, Bundora Associates Inc. These 

investments were subject to transfer restrictions, so 

Reijtenbagh needed Carlyle’s approval and assistance to 

execute the sales. The sales were accomplished through the 

execution of seven Transfer Agreements between Bundora 

(through Plaza, its director), several Carlyle affiliates, and the 

third-party purchasers. Each Transfer Agreement contained a 
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broad and materially identical release under which Bundora 

and its affiliates released all their then-existing claims against 

Carlyle and its affiliates. One of the Transfer Agreements, 

the Carlyle Europe Partners III, L.P. (CEP III) Transfer 

Agreement, also included a forum selection clause requiring 

any litigation “relating in any way” to the agreement to be 

brought in either English courts, Delaware state court, New 

York state court, or the U.S. District Court for the Southern 

District of New York.

In June 2012, a Dutch law firm representing 

Moonmouth sent letters on behalf of Moonmouth, Plaza, 

Parbold, and Reijtenbagh to plaintiffs and former independent 

directors of CCC alleging that plaintiffs took “irresponsible 

and unacceptable risks” in connection with the investments 

that CCC managed and that they would hold plaintiffs liable 

for all damages that the investors sustained in connection with 

their investment in CCC.

In response, plaintiffs filed this action in the Delaware 

Court of Chancery to enforce the Subscription Agreement’s 

forum selection clause as well as the releases from liability 

contained in the Bundora Transfer Agreements. Moonmouth, 

Plaza, and Parbold were served on November 19, 2012. 

Moonmouth was dissolved a week later, apparently pursuant 

to the laws of the British Virgin Islands, where it was 

incorporated.1 Plaintiffs’ amended complaint added a claim 

alleging that defendants have been providing financial 

support for the CCC Liquidators’ suit in Guernsey against 

 

1 Stichting has also been dissolved though it is not clear when 

this occurred.
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Carlyle and its affiliates in breach of the releases in the 

Bundora Transfer Agreements.

Plaza removed the case to federal court on December 

18, 2012. Plaintiffs moved to remand on January 17, 2013. 

The District Court granted the motion and remanded to state 

court on August 14, 2013. Plaza appealed.

II. Discussion

A. Jurisdiction

Carlyle contends that we lack jurisdiction to hear 

Plaza’s appeal. We disagree. Generally, an order 

“remanding a case to the State court from which it was 

removed is not reviewable on appeal . . ..” 28 U.S.C. § 

1447(d). We have recognized an exception to this rule when 

the remand is not based on the reasons set forth in 28 U.S.C. 

§ 1447(c). See New Jersey v. Merrill Lynch & Co., 640 F.3d 

545, 547 (3d Cir. 2011) (citing Foster v. Chesapeake Ins. Co., 

933 F.2d 1207, 1210–11 (3d Cir. 1991)). It is well

established that a remand pursuant to a forum selection clause 

does not fall within the reasons for remand listed in § 

1447(c). See id.; Suter v. Munich Reinsurance Co., 223 F.3d 

150, 152 (3d Cir. 2000); Foster, 933 F.2d at 1211. Thus, 

because the District Court remanded due to the forum 

selection clause and not due to a § 1447(c) reason, we have

jurisdiction over the appeal.2 Plaintiffs argue that the act of 

mailing the remand order divests a federal court of 

jurisdiction, citing Agostini v. Piper Aircraft Corp., 729 F.3d 

 

2 A remand to state court is also considered a final order. 

Suter, 223 F.3d at 152.
7

350, 356 (3d Cir. 2013), and Trans Penn Wax Corp. v. 

McCandless, 50 F.3d 217, 225 (3d Cir. 1995). These cases 

are easily distinguishable because they involve remands under 

§ 1447(c). A court of appeals, however, retains jurisdiction 

over appeals of remand orders that are not made pursuant to § 

1447(c). Therefore, we have jurisdiction under 28 U.S.C. §

1291.

B. Standard of Review

The federal removal statute, 28 U.S.C. § 1441, is 

strictly construed, requiring remand if any doubt exists over 

whether removal was proper. Abels v. State Farm Fire & 

Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). The party seeking 

removal carries the burden of proving that removal is proper. 

See Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 

396 (3d Cir. 2004). That burden is particularly heavy when 

the party seeks to avoid a forum selection clause through use 

of removal. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 

1, 15 (1972). In addition, in matters of contract construction,

we exercise plenary review. Merrill Lynch, 640 F.3d at 547.

C. Merits of the Appeal

1. Whether the Subscription Agreement Forum 

Selection Clause is Binding

The District Court agreed with plaintiffs that Plaza is 

bound by the forum selection clause despite not having been a 

signatory. Delaware courts have set forth a three-part test for 

determining whether a non-signatory to an agreement should 

be bound by its forum selection clause: (1) is the forum 

selection clause valid, (2) is the non-signatory a third-party 
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beneficiary of the agreement or closely related to the 

agreement, and (3) does the claim at hand arise from the nonsignatory’s status related to the agreement? See Baker v. 

Impact Holding, Inc., No. CIVA 4960-VCP, 2010 WL 

1931032, at *3 (Del. Ch. May 13, 2010) (citing Capital Grp. 

Cos. v. Armour, No. CIV. A. 422-N, 2004 WL 2521295, at *5 

(Del. Ch. Oct. 29, 2004)); Weygandt v. Weco, LLC, No. 4056-

VCS, 2009 WL 1351808, at *4 (Del. Ch. May 14, 2009).

For the first element, forum selection clauses are 

presumed to be valid. See Ingres Corp. v. CA, Inc., 8 A.3d 

1143, 1146 (Del. 2010). The clause is considered valid unless 

the challenging party “clearly show[s] that enforcement 

would be unreasonable and unjust, or that the clause [is]

invalid for such reasons as fraud or overreaching.” Id. 

(citation and quotation marks omitted). Plaza challenges the 

validity of the clause, but it provides no argument that it is 

invalid for any of those reasons. Plaza’s arguments are better 

characterized as arguments that the clause is inapplicable, 

rather than invalid. We will address those arguments later in 

the opinion. At this point, we will focus on whether the 

forum selection clause is valid.

With respect to the second element, even if defendants 

are not parties to the agreement or third-party beneficiaries of 

it, they may be bound by the forum selection clause if they 

are closely related to the agreement in such a way that it 

would be foreseeable that they would be bound. See 

Weygandt, 2009 WL 1351808, at *4. In determining whether 

a non-signatory is closely related to a contract, courts 

consider the non-signatory’s ownership of the signatory, its 

involvement in the negotiations, the relationship between the 

two parties and whether the non-signatory received a direct 
9

benefit from the agreement. See id. at *4-5; Capital Grp., 

2004 WL 2521295, at *6-7. 

The District Court found that Plaza was closely related 

to the Subscription Agreement. It did not err in doing so. 

Plaza was Moonmouth’s director and it executed the 

Subscription Agreement on Moonmouth’s behalf. Plaza and 

Moonmouth are affiliated entities that are both owned and 

controlled by Reijtenbagh. Several provisions of the 

Subscription Agreement itself indicate the close relationship 

between Moonmouth, Plaza, and Reijtenbagh. Reijtenbagh is 

listed as Moonmouth’s primary contact person and his 

address includes “c/o Plaza.” He is also listed as a person 

authorized to give and receive instructions on behalf of 

Moonmouth. Negotiations related to the Subscription 

Agreement were conducted by Moonmouth, Plaza, and 

Reijtenbagh. The Subscription Agreement states that the 

“source of funds” for Moonmouth’s investment in CCC was 

Plaza’s income. Additionally, the letter from the Dutch law 

firm to the plaintiffs, complaining of losses related to the 

CCC investment, was sent on behalf of Moonmouth, Plaza, 

and Reijtenbagh. Thus, we agree with the District Court that 

the three parties were closely related to the Subscription 

Agreement.3

This result is consistent with Delaware cases in which

affiliates, officers, and directors have been held to be bound 

by forum selection clauses. See, e.g., Baker, 2010 WL 

 

3

It is not the case that Plaza is bound merely because it 

signed the Subscription Agreement as Moonmouth’s director. 

Rather, it is bound because of Plaza’s close relationship to the 

agreement itself.
10

1931032, at *4; Weygandt, 2009 WL 1351808, at *5 

(foreseeable that multiple entities controlled by same control 

person would be subject to forum clause).

Plaza contends, however, that plaintiffs lack standing 

to invoke the forum selection clause because they were not 

parties to the Subscription Agreement. A non-signatory has 

standing to invoke a forum selection clause when it is 

“closely related to one of the signatories such that the nonparty’s enforcement of the clause is foreseeable by virtue of 

the relationship between the signatory and the party sought to 

be bound.” Ashall Homes Ltd. v. ROK Entm’t Grp. Inc., 992 

A.2d 1239, 1249 (Del. Ch. 2010). We find that the nonsignatory plaintiffs are closely related to CCC so that it would 

be foreseeable to defendants that they would enforce the 

clause. All of the corporate plaintiffs are affiliates of Carlyle. 

CCC was managed by Carlyle at the time the Subscription 

Agreement was executed. A “Carlyle Group Privacy 

Statement” was attached to the Subscription Agreement 

explaining how Carlyle managed the confidentiality and 

security of information provided by investors for CCC and 

other Carlyle-affiliated investments. The Subscription 

Agreement’s indemnification provision also extended beyond 

CCC to Carlyle’s officers, directors, employees, agents, and 

controlling persons. The individual plaintiffs were directors 

of CCC or senior executives of Carlyle. Furthermore, the 

letters sent by defendants via Dutch counsel were sent not 

only to CCC but to the plaintiffs individually. In short, it is 

clear that plaintiffs are closely related to CCC in such a way

that they may enforce the forum selection clause.

The third issue we consider in determining whether the 

forum clause may be enforced is whether the claims against 
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defendants arise from their status relating to the agreement. 

Capital Grp., 2004 WL 2521295, at *5. This question is very 

similar to the question of whether the forum selection clause 

applies to this dispute. We answer both questions in the 

affirmative. The claims in this case are “with respect to”4the 

Subscription Agreement and the claims against defendants 

therefore arise from the Subscription Agreement.

Courts generally interpret language in a forum clause 

encompassing any claims “with respect to” an agreement 

broadly to mean “connected by reason of an established or 

discoverable relation.” Huffington v. T.C. Grp., LLC, 637 

F.3d 18, 22 (1st Cir. 2011) (quoting Coregis Ins. Co. v. Am. 

Health Found., Inc., 241 F.3d 123, 128-29 (2d Cir. 2001)); 

accord John Wyeth & Brother Ltd. v. CIGNA Int’l Corp., 119 

F.3d 1070, 1074-75 (3d Cir. 1997). An action need not even 

allege contract-based claims in order for a forum selection 

clause in a contract to be enforced. See Ashall Homes, 992 

A.2d at 1252 (forum clause applies when claims “grow out of 

the contractual relationship”); Crescent Int’l Inc. v. Avatar 

Communities, Inc., 857 F.2d 943, 944 (3d Cir. 1988). If this 

were not the rule, a plaintiff could easily avoid a forum 

selection clause by artfully pleading non-contract claims that 

stem from the contractual relationship. See Ashall Homes, 

992 A.2d at 1252; Crescent Int’l, 857 F.2d at 945.

This case is similar to Huffington v. T.C. Group, LLC, 

a case from the First Circuit involving some of the same 

parties as this litigation. There, the plaintiff artfully avoided 

 

4 Carlyle Inv. Mgmt. LLC v. Plaza Mgmt. Overseas, S.A., Civ. 

No. 12-1732-SLR, 2013 WL 4407685, at *2 (D. Del. Aug. 

14, 2013).
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contract claims in his pleadings and did not mention the 

purchase agreement that contained the forum selection clause.

Huffington, 637 F.3d at 21. The Court of Appeals 

nonetheless found the forum clause applicable, noting that 

none of the claims would have arisen without the original 

purchase contract. Id. at 22.

Here, Carlyle’s claims stem from Moonmouth’s initial 

investment in CCC. Although the releases Carlyle seeks to 

enforce were part of later agreements, the defendants would 

not have any claims, nor would Carlyle need to seek release 

from any claims, but for the original Subscription Agreement 

that contains the forum selection clause. It is clear that the 

relationship between plaintiffs and defendants, including the 

letters from defendants’ Dutch counsel and plaintiffs’ present 

efforts to be released from any claims, stem from the 

Subscription Agreement. Thus, the claims are “with respect 

to” the Subscription Agreement.

2. The Forum Selection Clause in the CEP III 

Transfer Agreement

Carlyle argues that we could also affirm the District 

Court’s remand on the alternative ground that one of the 

agreements containing a release that Carlyle seeks to enforce 

also contains an enforceable forum selection clause. We 

agree. 5

 

5

“We may affirm a district court for any reason supported by 

the record.” Brightwell v. Lehman, 637 F.3d 187, 191 (3d 

Cir. 2011) (internal citations omitted).
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The CEP III Transfer Agreement’s forum clause 

allows for litigation in English courts, Delaware state court, 

New York state court, or the U.S. District Court for the 

Southern District of New York. The clause’s reach in terms 

of parties covered and disputes covered is broader than the 

forum clause in the Subscription Agreement. It applies to 

“any Affiliate of any party” to any action or dispute “arising 

out of or relating in any way” to the agreement. R. at 870a. 

Thus, all parties to the CEP III Transfer Agreement 

agreed that any litigation, including litigation brought by or 

against their affiliates, relating “in any way” to the agreement,

would be brought only in one of the four specified 

jurisdictions. This included Delaware state court, but did not 

permit litigation in the U.S. District Court for the District of 

Delaware. Removal is only permitted when the case could 

have originally been brought in federal court. 28 U.S.C. § 

1441(a); In re Briscoe, 448 F.3d 201, 215 (3d Cir. 2006). 

Because the forum selection clause does not designate

Delaware federal court as a possible forum, Count I could not 

have been brought there. Thus, under terms of this clause, 

which plainly binds defendants as affiliates of signatory 

Bundora Associates, Inc., Count I is not removable to federal 

court.

Furthermore, if one claim is not removable due to a 

forum selection clause, the other claims may not be severed 

and removed. To hold otherwise would be to invite 

piecemeal litigation and to allow plaintiffs to circumvent 

forum selection clauses through artful pleading of additional 

claims. See Crescent Int’l, 857 F.2d at 945

3. Plaza’s Remaining Arguments
14

Finally, Plaza contends that plaintiffs are judicially 

estopped from enforcing the forum selection clause in the 

Subscription Agreement because their complaint alleges that 

the Bundora Transfer Agreements released the Subscription 

Agreement. This argument fails for two reasons.

First, Plaza’s characterization of the complaint is 

inaccurate. As plaintiffs point out, the releases in the 

Bundora Transfer Agreements released only pre-existing 

claims. They did not release or terminate the Subscription 

Agreement itself or its forum selection clause. The amended 

complaint is clear in pleading that only pre-existing claims 

stemming from the Subscription Agreement, not the entire 

agreement itself, were released by the Bundora Transfer 

Agreement releases. In fact, the amended complaint pleaded 

that the forum selection clause was valid and enforceable.

Second, the facts here do not meet the elements 

required for judicial estoppel. The doctrine of judicial 

estoppel prevents a party from prevailing in one phase of a 

case on an argument and then relying on a contradictory 

argument to prevail in another phase. New Hampshire v. 

Maine, 532 U.S. 742, 749 (2001). Judicial estoppel requires

that: (1) a party adopts a position clearly inconsistent with an 

earlier position and (2) the party had succeeded in persuading 

a court to accept that party’s earlier position, so that judicial 

acceptance of an inconsistent position in a later proceeding 

would create “the perception that either the first or the second 

court was misled.” Id. at 750. Here, Plaza fails to show 

inconsistency because plaintiffs’ argument that prior claims 

were released by the Bundora Transfer Agreements is 

consistent with their argument that the forum selection clause 

from the 2006 Agreement remains valid. 
15

Plaza also argues that plaintiffs waived their right to 

move for remand by seeking enforcement of the releases from 

the Bundora Transfer Agreements which do not have an 

exclusive forum clause and therefore allow removal. This 

argument is unavailing for the reasons previously discussed. 

First, Carlyle’s claim regarding the Bundora Transfer 

Agreements is “with respect to” the Subscription Agreement. 

Second, one of the Bundora Transfer Agreements, the CEP III 

Transfer Agreement, contained a forum selection clause 

prohibiting removal to Delaware federal court. Plaintiffs 

have not waived their right to seek remand of the case.

III. Conclusion

In sum, we agree with the District Court that the forum 

selection clause in the Subscription Agreement pertains to 

this case, may be enforced against defendants, and may be 

invoked by plaintiffs. We also agree with plaintiffs that the 

forum selection clause in the CEP III Transfer Agreement 

provides a valid alternative ground supporting remand to state 

court. We will therefore affirm the District Court’s order 

remanding the case to the Delaware Court of Chancery.