FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 24, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14599

Non-Argument Calendar

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D. C. Docket No. 07-00364-CV-3-MCR-EMT

EMERALD GRANDE, INC.,

a Florida corporation,

Plaintiff-Appellee,

versus

CLATUS JUNKIN,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(June 24, 2009)

Before EDMONDSON, CARNES and WILSON, Circuit Judges.
PER CURIAM:

Defendant-Appellant Clatus Junkin appeals an order of the district court

granting the motion of Plaintiff-Appellant Emerald Grande, Inc. (“Emerald”) to

remand to state court based upon enforcement of a forum-selection clause. No

reversible error has been shown; we affirm.

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Emerald, a condominium developer, entered into three contracts with

Junkin. Two of the three contracts were for the purchase and sale of condominium

units (the “Condominium Contracts”); one of the Condominium Contracts was

only for a fractional ownership interest and, according to Junkin, was governed by

the Florida Vacation Plan and Timesharing Act, Fla. Stat. Ann. § 721.01 et seq.

(“Timeshare Act”). The third contract was for furnishings for one of the

Condominium Contract units (the “Furnishing Contract”). Junkin canceled all

three contracts before closing; Emerald sued Junkin on the three contracts in the

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Circuit Court of the First Judicial Circuit, in and for Okaloosa County, Florida.

Junkin then removed the lawsuit to the federal district court for the northern district

The order of remand was not based on a lack of federal jurisdiction or defective removal 1

procedure; appellate review of a remand order enforcing a forum-selection clause is not barred

by 28 U.S.C. § 1447(d). See Global Satellite Communication Co. v. Starmill U.K. Ltd., 378 F.3d

1269, 1271 (11 Cir. 2004). th

Junkin maintains that the Timeshare Act allowed him to cancel the purchase of the 2

fractional interest in a condominium unit; and Junkin maintains further that the cancellation of

the fractional interest contract canceled the other two contracts. Before us is the remand order;

we do not consider the underlying contract claims. 

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of Florida.

The Condominium Contracts contain two separate clauses that address

forum selection. Article IX, Section Y, contained in each of the Condominium

Contracts, provides:

[T]o the extent not prohibited by Article VIII, the Circuit

and County Courts of the 1 Judicial Circuit, in and for

st

Okaloosa County, Florida (“Okaloosa Courts”) will be

the venue for any dispute, proceeding, suit or legal action

concerning the interpretation, construction, validity,

enforcement, performance of, or related in any way to,

this Contract or any other agreement or instrument

executed in connection with this Contract. In the event

any such suit or legal action is commenced by any party

and is not otherwise prohibited by Article VIII, the other

parties agree, consent and submit to the personal

jurisdiction of the Okaloosa Courts with respect to such

suit or legal action. In such event, each party waives any

and all rights under applicable law or in equity to object

to jurisdiction or venue of the Okaloosa Courts.

Article VIII of each of the Condominium Contracts, entitled

“Arbitration,” provides:

Any post-closing disputes between Purchaser and Seller

relating to the purchase of the Unit, including the

marketing, sale, design, construction, condition or

conveyance of the Unit, shall be resolved exclusively

through binding arbitration.

. . .

Nevertheless, in the event for any reason any litigation is

filed other than to enforce the decision of the arbitration

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proceeding, the parties accept the jurisdiction of the

State, Federal and local courts located in Okaloosa

County, Florida as having exclusive jurisdiction over

controversies arising from or relating to this Agreement

and agree that Florida has sufficient contacts with the

subject matter of this Agreement and agree that any

litigation arising out of this Agreement will take place

only in such courts, and both parties hereto consent to the

personal jurisdiction of such courts and do hereby waive

any objection to such courts based on the forum not

being convenient or otherwise.

The Furnishings Contract contains language very similar to that in Article VIII of

the Condominium Contracts; it includes no clause comparable to that of Article IX.

The district court determined that remand was due to be granted: Article VIII

pertains solely to arbitration of post-closing disputes; and Article IX is a

mandatory forum selection clause. Because the claims at issue in the lawsuit were

not post-closing and were not subject to binding arbitration, the district court

concluded Article VIII had no application and permitted no removal, especially in

the light of the language in Article IX. We agree.

The enforcability of a forum-selection clause in a diversity jurisdiction case

is governed by federal law; see P&S Business Machines, Inc. v. Canon USA, Inc.,

331 F.3d 804, 807 (11 Cir. 2003); and ordinary principles of contract

th

interpretation apply. See Global Satellite Communication Co. v. Starmill U.K.

Ltd., 378 F.3d 1269, 1271 (11 Cir. 2004). A forum-selection clause may validly

th

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and effectively waive the right to remove. See id. at 1272. When a contract

contains a valid forum selection clause -- here, neither party argues invalidity --

courts typically classify the clause as permissive or mandatory. See Florida Polk

County v. Prison Health Services, Inc., 170 F.3d 1081, 1083 n.8 (11 Cir. 1999).

th

“A permissive clause authorizes jurisdiction in a designated forum but does not

prohibit litigation elsewhere. A mandatory clause, in contrast, dictates an

exclusive forum for litigation under the contract.” Global Satellite, 378 F.3d at

1272 (internal quotation and citation omitted).

At issue is whether Article VIII applies to this suit and, if it applies, whether,

in the light of Article IX, it allows Junkin to remove from the Okaloosa County

state court where suit was filed to the federal district court serving Okaloosa

County. Junkin’s reliance on the language in Article VIII that provides for the

exclusive jurisdiction of the state, federal and local courts in Okaloosa County over

controversies arising from or relating to the Purchase Contracts is wrenched out of

context: the context makes clear that the jurisdiction provisions of Article VIII

relate to post-closing arbitrable disputes. Reading the Purchase Contracts in their

entirety, we agree with the district court that Article VIII has no application: its

application is limited to post-closing disputes and it mandates binding arbitration

of those disputes.

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But even if we were to accept Junkin’s argument that Article VIII has

application to a pre-closing non-arbitrable dispute, we again agree with the district

court that Article IX is a mandatory forum selection clause. Unless prohibited by

Article VIII -- which this suit is not -- Article IX mandates that the “Okaloosa

Courts” “will be the venue for any dispute, proceeding, suit or legal action

concerning the interpretation, construction, validity, enforcement, performance of,

or related in any way to this Contract or any other agreement or instrument

executed in connection with this Contract.” And Article IX provides further that

“each party waives any and all rights ... to object to jurisdiction or venue of the

Okaloosa Courts.” In contrast, the language in Article VIII is permissive: it

mandates no specific forum. Article VIII is a general consent to personal

jurisdiction.

3

Junkin makes much of the absence of a clause equivalent to Article IX in the

Furnishings Contract. Because the Furnishings Contract does have a forum

selection clause that tracks Article VIII, and because Emerald was also seeking

specific performance of that agreement, Junkin argues that removal must be proper

for claims arising under the Furnishing Contract. But the Purchase Contracts and

Furnishing Contract were executed together and should be read together. See

And, as also noted by the district court, the forum mandated in Article IX is included 3

within the courts listed in Article VIII. 

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Hopfenspirger v. West, 949 So.2d 1050, 1053 (Fla.Dist.Ct.App. 2006). And

Article IX of the Condominium Contracts selects the Okaloosa Courts as the venue

for disputes related to the Condominium Contracts or “any other agreement or

instrument executed in connection” with the Condominium Contracts.

Remand of all claims relating to the Condominium Contracts and the

Furnishings Contract is due to be affirmed.

AFFIRMED.

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