PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

No. 09-4676 

____________ 

STATE OF NEW JERSEY, 

DEPARTMENT OF TREASURY, 

DIVISION OF INVESTMENT, 

o/b/o COMMON PENSION FUND A 

v. 

MERRILL LYNCH & CO., INC.; 

BANK OF AMERICA CORPORATION, 

Appellants

____________ 

Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Civ. No. 2-09-cv-04526) 

District Judge: Honorable Stanley R. Chesler 

____________ 

Argued February 9, 2011 

Before: JORDAN, GREENAWAY, JR., 

and WEIS, Circuit Judges. 

(Filed: May 18, 2011) 

____________ 
Scott D. Musoff, Esquire (ARGUED) 

Jay B. Kasner, Esquire 

Andrew Muscato, Esquire 

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 

Four Times Square 

New York, New York 10036 

Attorneys for Appellants Merrill Lynch & Co., Inc., and Bank 

of America Corporation

Lester L. Levy, Esquire (ARGUED) 

WOLF POPPER LLP 

845 Third Avenue, 12th Floor 

New York, New York 10022 

Jeffrey W. Herrmann, Esquire 

Peter S. Pearlman, Esquire 

COHN LIFLAND PEARLMAN HERRMANN & KNOPF 

LLP 

Park 80 West-Plaza One 

250 Pehle Avenue, Suite 401 

Saddle Brook, New Jersey 07663 

Attorneys for Appellee State of New Jersey, Department of 

Treasury, Division of Investment, on behalf of Common 

Pension Fund A

____________ 

OPINION 

____________ 

2 
WEIS, Circuit Judge. 

 The dispute in this appeal is a narrow one, centering on 

the interpretation of a forum selection clause that provides: 

“exclusive jurisdiction . . . shall lie in the appropriate courts of 

the State [of] New Jersey.” Plaintiff argues that this language 

constitutes a waiver of the right to remove the pending litigation 

to the federal district courts in New Jersey. Defendant responds 

that the clause contemplates jurisdiction in either the state or the 

federal courts located in New Jersey. The District Court agreed 

with plaintiff and remanded the matter to the Superior Court of 

New Jersey. We will affirm. 

 Plaintiff, a division within New Jersey’s Department of 

Treasury,1

 purchased $300 million in preferred stock issued by 

defendant Merrill Lynch2

 in January 2008. Some months later, 

Merrill Lynch asked New Jersey to convert its preferred shares 

to common stock. New Jersey agreed, so long as the terms of 

the conversion were as favorable as the terms governing the 

exchange of other stockholders’ preferred shares. Merrill 

Lynch acceded to that demand, which was memorialized in the 

parties’ Share Exchange Agreement (“Agreement”), in July 

2008. 

 Approximately one year later, the State commenced this 

action in the Superior Court of New Jersey, alleging that Merrill 

 

1

 For simplicity’s sake, we refer to plaintiff as “New Jersey” or 

“the State.”

2 Defendant Bank of America Corp. merged with Merrill Lynch 

in January 2009 and is bound to the terms of the agreements at 

issue. Accordingly, we refer to defendants as “Merrill Lynch.” 

3 
Lynch breached the Agreement by converting another 

shareholder’s preferred stock in terms more favorable than 

those granted to the State. New Jersey also alleged that 

financial disclosures produced by Merrill Lynch prior to the 

conversion had been incomplete or misleading. 

 Merrill Lynch removed the action to the United States 

District Court for the District of New Jersey, citing the “strong 

federal interest” in the case and asserting that issues under the 

Securities Exchange Act were embedded in the complaint. 

New Jersey moved to remand, arguing, inter alia, that the 

Agreement’s forum selection clause mandated that all disputes 

be resolved in New Jersey’s state courts. 

 Merrill Lynch responded that the forum selection clause 

required only that the matter proceed in a court located in the 

State of New Jersey. The District Court disagreed, noting that 

every Court of Appeals confronted with a similar forum 

selection clause “ha[d] ruled that the reference to courts of the 

state . . . limits jurisdiction to state rather than federal 

tribunals.”3

 It reasoned that such interpretation was consistent 

with the plain and ordinary meaning of the contractual language. 

 

3 Citing Grable & Sons Metal Products, Inc. v. Darue 

Engineering & Manufacturing, 545 U.S. 308 (2005), Merrill 

Lynch also argued that federal jurisdiction was proper because 

the complaint’s implication of federal securities statutes would 

require the court to interpret federal law to resolve the matter. 

The District Court found this argument “extremely dubious” but 

ultimately did not reach the issue. 

Merrill Lynch made, at most, a vague reference to this 

contention in a footnote in its principal brief on appeal, though it 

devoted several pages to the argument in its reply. Failure to set 

4 
 Accordingly, the District Court remanded the case to the 

New Jersey Superior Court. 

 Generally, this Court has no jurisdiction over appeals 

from orders remanding a matter to state court. 28 U.S.C. 

§ 1447(d). We have, however, recognized an exception where 

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

§ 1447(c). See Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 

1207, 1211 (3d Cir. 1991) (“§ 1447(d) does not bar review of 

the order of the district court remanding this case [based upon 

forum selection clause] . . . and that order is considered ‘final’ 

so as to vest this court with jurisdiction to hear this appeal”).4

 Because the issue at hand is one of contractual 

construction, our standard of review is plenary. See id. at 1216 

(citing cases). 

 “[A] defendant can contractually waive his right to 

remove . . . an action brought . . . in a state court.” 14B Charles 

Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. 

Steinman, Federal Practice & Procedure § 3721, at 97 (4th ed. 

2009). Such waivers are usually upheld if they are reasonable 

 

forth an issue on appeal and present arguments in support of 

that issue in one’s opening brief generally amounts to 

“abandon[ment] and waive[r of] that issue . . . and it need not 

be addressed by the court of appeals.” Kost v. Kozakiewicz, 1 

F.3d 176, 182 (3d Cir. 1993). 

4

 Other Courts of Appeals have held similarly. See, e.g., Regis 

Assocs. v. Rank Hotels (Mgmt.) Ltd., 894 F.2d 193, 194-95 

(6th Cir. 1990); Karl Koch Erecting Co. v. New York 

Convention Ctr. Dev. Corp., 838 F.2d 656, 658-59 (2d Cir. 

1988).

5 
and voluntary and if their enforcement is not inconsistent with 

public policy. See id. at 97-98; Foster, 933 F.2d at 1219 (forum 

selection clause unreasonable where party makes “strong 

showing” that inconvenience of designated forum will effectively 

deprive him of day in court or that clause resulted from fraud or 

duress). 

 The parties in this case, sophisticated organizations both, 

were represented by counsel during the negotiation and 

adoption of the forum selection clause at issue.5

 Merrill 

Lynch’s draft agreement proposed that the contract be 

construed under New York law and “that any suit, action or 

proceeding . . . arising out of . . . this Agreement . . . may only 

be brought in the United States District Court for the Southern 

District of New York or any New York State court sitting in . . . 

 Manhattan.” 

 With certain exceptions not relevant here, the State 

agreed that New York law would govern the agreement. On the 

other hand, it objected to Merrill Lynch’s choice of forum and 

suggested the following provision instead: “In connection with 

any dispute, controversy or claim arising out of . . . [this 

Agreement], each of the parties hereto agrees . . . that exclusive 

jurisdiction and venue shall lie in the appropriate courts of the 

State [of] New Jersey.” Merrill Lynch incorporated the State’s 

 

5

 This negotiation took place prior to New Jersey’s January 

2008 purchase of Merrill Lynch preferred stock, and the 

resulting forum selection clause was memorialized in the 

agreement governing that purchase. The forum selection 

provision in the Share Exchange Agreement, from which the 

current dispute arose, is identical to the clause agreed on by the 

parties in January 2008. 

6 
proposed forum selection language verbatim into the final 

Agreement. 

 In determining whether parties have contractually waived 

the right to remove to federal court, a court should “simply . . . 

us[e] the same benchmarks of construction and, if applicable, 

interpretation as it employs in resolving all preliminary 

contractual questions.” Foster, 933 F.2d at 1217 n.15. 

Although some courts have required that waivers of removal 

rights be “clear and unequivocal,” they have done so in the 

context of non-contractual, litigation-based waivers or have 

relied upon such cases. See id. (citing cases). We recognized 

in Foster a distinction between those cases and the one then 

before us and concluded that a “clear and unequivocal” 

standard “serv[ed] no meritorious policy of litigation” and was 

“so stringent as to be contrary to the right of parties to contract 

in advance regarding where they will litigate.” Id. Accordingly, 

we look to the “plain and ordinary meaning” of the forum 

selection clause to determine whether it amounted to a waiver of 

the right to remove. See Buono Sales, Inc. v. Chrysler Motors 

Corp., 449 F.2d 715, 721 (3d Cir. 1971) (“the wording of a 

contract is to be given its plain and ordinary meaning”). 

 As it did in the District Court, Merrill Lynch argues that 

the plain and ordinary meaning of the phrase “appropriate 

courts of the State [of] New Jersey” includes both state and 

federal courts in New Jersey, for two reasons. First, the 

reference to “courts” in the plural sense, in light of New 

Jersey’s unified Superior Court, must include the federal courts 

located in that state. Second, the word “of” denotes the 

geographic location of the “appropriate courts,” rather than the 

governmental entity from which they derive their authority. 

7 
 We do not agree. As the District Court noted, the New 

Jersey Superior Court may be a unified “court,” but it boasts 

fifteen vicinages throughout the twenty-one counties at the trial 

level. The use of the plural “courts” is best read as a vestigial 

reference to the many tribunals comprising the Superior Court 

of New Jersey, not the federal district courts in the state. 

 This is particularly true when the small but significant 

word following “courts” in the forum selection clause -- “of” -- 

is taken into account. “Of” “indicat[es] a possessive 

relationship” or “such relationships as ruler and subject, [or] 

owner and property.” Webster’s Third New Int’l Dictionary of 

the English Language 1565 (Unabr. ed. 1968). “Of” also means 

“from as the place of birth, production, or distribution: having as 

its base of operation, point of initiation, or source of issuance or 

derivation.” Id. 

 After examining the contrast between the meanings of 

“in” and “of” in forum selection clauses, the Court of Appeals 

for the Fourth Circuit adopted “the widely-accepted rule that . . 

. ‘in [a state]’ express[es] the parties’ intent as a matter of 

geography, permitting jurisdiction in both the state and federal 

courts of the named state.” FindWhere Holdings, Inc. v. Sys.

Env’t Optimization, LLC, 626 F.3d 752, 755 (4th Cir. 2010) 

(emphasis added). On the other hand, “‘of [a state]’ connote[s] 

sovereignty, limiting jurisdiction . . . to the state courts of the 

named state.” Id. (emphasis added). The Fifth Circuit put it 

more pithily: “Federal district courts may be in [a state], but 

they are not of [that state].” Dixon v. TSE Int’l Inc., 330 F.3d 

396, 398 (5th Cir. 2003) (per curiam). 

 Notwithstanding the plain and ordinary meaning of the 

contractual language, Merrill Lynch relies heavily on Jumara v. 

State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995). There, we 

8 
held that a forum selection clause that referred to a “court of 

record in the county” included either the state court or the 

federal court in the judicial district encompassing that county. 

55 F.3d at 881-82. 

 The forum selection clause in Jumara was part of an 

automobile insurance agreement requiring arbitration of 

disputes. That clause incorporated, and its interpretation was 

driven by, Pennsylvania’s Uniform Arbitration Act, which, we 

had previously held, was not intended to provide exclusive 

jurisdiction to the Pennsylvania state courts. See id. at 881; 

Allstate Ins. Co. v. Gammon, 838 F.2d 73, 76-77 (3d Cir. 1988). 

 Indeed, we had recognized that interpreting the statute in a way 

that denied parties access to federal courts “might well run afoul 

of the Supremacy Clause.” Gammon, 838 F.2d at 77 n.7. 

 There is no such concern in this case. The forum 

selection clause here does not rely upon the interpretation of 

any statute, state or federal; rather, it is the bargained-for result 

of the parties’ counseled negotiation. Jumara is not at odds with 

the District Court’s ruling. 

 We further note, as did the District Court, that the vast 

majority of our sister circuits have held that forum selection 

clauses like the one at issue here required remand to the state 

court. See, e.g., FindWhere Holdings, 626 F.3d at 754 

(“‘[j]urisdiction and venue of any dispute . . . shall lie 

exclusively in, or be transferred to, the courts of the State [sic] 

of Virginia, USA’”); Am. Soda, LLP v. U.S. Filter Wastewater 

Grp., Inc., 428 F.3d 921, 924 (10th Cir. 2005) (“‘the Courts of 

the State of Colorado shall be the exclusive forum . . .’”); 

Dixon, 330 F.3d at 397 (“‘[t]he Courts of Texas, U.S.A. shall 

have jurisdiction . . .’”); LFC Lessors, Inc. v. Pac. Sewer Maint.

Corp., 739 F.2d 4, 6 (1st Cir. 1984) (“‘the rights . . . of the 

9 
parties hereto [shall be] determined . . . in the courts[ ] of the 

Commonwealth of Massachusetts’”).6

 The other cases on which Merrill Lynch relies are not 

binding on us and are unpersuasive in their reasoning. In Regis 

Associates v. Rank Hotels (Management) Ltd., 894 F.2d 193 

(6th Cir. 1990), for example, the Court applied a “clear and 

unequivocal” standard in determining whether defendant had 

waived its right to removal. 894 F.2d at 195. We have 

expressly rejected that stringent standard.7

 Foster, 933 F.2d at 

1217 n.15. 

 Merrill Lynch also contends that, since the State drafted 

the forum selection clause, that provision’s ambiguous language 

must be construed against the State. We do not agree that the 

 

6

 Cf. Doe 1 v. AOL LLC, 552 F.3d 1077, 1080 (9th Cir. 2009) 

(per curiam) (holding that “‘exclusive jurisdiction for any claim . 

. . resides in the courts of Virginia’” limited jurisdiction to state 

courts, but declining to enforce clause, as to California residents 

only, for public policy reasons). 

7 Also distinguishable are Global Satellite Communication Co. v. 

Starmill U.K. Ltd., 378 F.3d 1269 (11th Cir. 2004), and 

Northwest Airlines, Inc. v. Astraea Aviation Services, Inc., 111 

F.3d 1386 (8th Cir. 1997). The forum selection language in 

Global Satellite differed significantly from the clause we are now 

confronted with. 378 F.3d at 1271 (parties had “‘agree[d] . . . 

to submit to the jurisdiction of Broward County, Florida’” not 

“courts of” that state or county). And, while the clause in 

Northwest Airlines mirrored the one at issue here, the Court did 

not address whether remand was required, apparently because 

neither party raised the question. 111 F.3d at 1390-95. 

10 
11 

clause is ambiguous for the reasons already stated. Further, 

while contra proferentem may be the general rule, 

“[a]pplication of the rule may be . . . limited by the degree of 

sophistication of the contracting parties or the degree to which 

the contract was negotiated.” 11 Williston on Contracts § 

32:12, at 480-81 (4th ed. 1999). See also Cummins, Inc. v. Atl.

Mut. Ins. Co., 867 N.Y.S. 2d 81, 83 (N.Y. App. Div. 2008) 

(doctrine of contra proferentem inapplicable where parties, both 

sophisticated entities, had equal bargaining power in drafting 

agreement). 

 In sum, we find that the forum selection clause 

memorializes the parties’ intention to litigate all contractual 

disputes in the state courts of New Jersey and thus was a waiver 

of the right to removal. 

 Accordingly, the remand order will be affirmed.