                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    No. 13-3434
                                    No. 13-3435
                                    No. 13-3436
                               _____________
                          MOTIVA ENTERPRISES LLC,

                                         v.

SWISS RE INTERNATIONAL S.E., f/k/a SR International Business Insurance Company
     PLC; LIBERTY MUTUAL INSURANCE COMPANY; ZURICH AMERICAN
  INSURANCE COMPANY; CHARTIS PROPERTY CASUALTY COMPANY; ACE
   AMERICAN INSURANCE COMPANY; STARR TECHNICAL RISKS AGENCY
    INC; GENERAL SECURITY INDEMNITY COMPANY OF ARIZONA; ARCH
   INSURANCE COMPANY; LANCASHIRE INSURANCE COMPANY LIMITED;
       CATLIN LLOYDS SYNDICATE NO. 2003 SJC; O'FARRELL LLOYDS
   SYNDICATE NO. 1036 COF; NAVIGATORS MANAGEMENT COMPANY INC;
 STELLAR INSURANCE LTD; NOBLE ASSURANCE COMPANY; CUNNINGHAM
         LINDSEY US INC; QBE MARINE & ENERGY SYNDICATE 1036

 Swiss Re: International S.E. f/k/a SR International Business Insurance Company PLC,
   Liberty Mutual Insurance Company, Zurich American Insurance Company, Chartis
 Property Casualty Company, Ace American Insurance Company, Starr Technical Risks
     Agency Inc., General Security Indemnity Company of Arizona, Arch Insurance
 Company, Lancashire Insurance Company Limited, Catlin Lloyds Syndicate No. 2003
  SJC, Navigators Management Company Inc., QBE Marine & Energy Syndicate 1036,
                                                  Appellants in 13-3434 and 13-3436


                            Cunningham Lindsey US Inc.,
                                             Appellant in 13-3435
                                  ____________
                   On Appeal from the United States District Court
           for the District of Delaware (No. 12-cv-1097 & No. 12-cv-1460)
                        District Judge: Hon. Leonard P. Stark
                                    ____________


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                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                       June 23, 2014
       Before: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges.
                                  (Filed: August 22, 2014)


                               OPINION OF THE COURT


FUENTES, Circuit Judge:

   Motiva Enterprises LLC twice sued its insurers in Delaware state court. In the first
action, Motiva sought a declaration that its insurance policy covered a property damage
claim; in the second, Motiva sought an injunction against arbitration proceedings.
Motiva’s insurers, the defendants in both cases, removed to federal court. Motiva moved

the District Court to remand the cases, relying on forum-selection language contained in
the parties’ insurance policy. The District Court accepted Motiva’s argument and granted
the motion. Because the insurance policy selects Delaware’s state courts as the exclusive

forum for these disputes, we affirm.

                                       I. Background

   After Motiva’s property caught fire, it sued its insurers in Delaware Superior Court.
Motiva sought a declaration that its insurance policy covered the damage. One of the
insurers, Swiss Re, removed the action to federal district court. It asserted diversity and
federal question jurisdiction. The insurers then commenced arbitration proceedings

against Motiva, citing arbitration clauses of the policy. Motiva responded by filing an
action in Delaware’s Court of Chancery to enjoin the arbitration. The defendants
removed that case to federal court, too.




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   Motiva moved the District Court for remand. It argued that the parties expressly
agreed to litigate coverage disputes in Delaware state court and that the insurers waived

their right to remove. Motiva pointed to language in the Schedule to the insurance policy
that specified, “[i]n the event of a dispute between the Insured and Insurers,” the terms of
the policy would be subject to “the Law of Delaware” and “Jurisdiction of the State of

Delaware, USA.” App’x 61. Motiva also noted that parties “agree[d] to submit, except
where the dispute relates to the amount to be paid under this Policy only, to the exclusive
jurisdiction of the courts stated in the Schedule and to comply with all requirements to

give such jurisdiction.” App’x 80.

   In response, the insurers emphasized that the policy elsewhere stated that “[n]othing
in this Clause constitutes or should be understood to constitute a waiver of Underwriters’
rights . . . to remove an action to a United States District Court.” Id. They also contended
that the term “Jurisdiction of the State of Delaware,” used in the policy Schedule,
included federal courts situated in Delaware.

   After analyzing the parties’ arguments and the language of the contract, the District
Court granted Motiva’s motions. The insurers appealed.

                                      II. Jurisdiction

   We have limited jurisdiction over remand orders. “If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction” over a case
removed from state court, “the case shall be remanded.” 28 U.S.C. § 1447(c). Generally,
“[a]n order remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise.” See 28 U.S.C. § 1447(d). When the remand order is
not based on a defect in the removal procedure or a lack of subject matter jurisdiction,


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however, § 1447(d) does not prohibit appellate review. Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 711-12 (1996).

    The District Court’s remand order rested on the parties’ forum-selection clause, so
§ 1447(d) does not apply. See Foster v. Chesapeake Ins. Co., 933 F.3d 1207, 1216 (3d
Cir. 1991). Accordingly, we construe the remand order to effectively terminate the

federal litigation and exercise jurisdiction pursuant to 28 U.S.C. § 1291.

                                      III. Discussion1

    Parties may contractually waive their right to remove an action to federal court. See
New Jersey v. Merrill Lynch & Co., 640 F.3d 545, 547 (3d Cir. 2011). The parties dispute
whether, to be effective, the waiver must appear in the policy’s plain and ordinary
language, or whether the waiver must appear in clear and unambiguous language because
the policy’s arbitration clauses implicate the Federal Arbitration Act’s more exacting
removal-waiver rule. Compare Ario v. Underwriting Members of Syndicate 53 at Lloyds
for 1998 Year of Account, 618 F.3d 277, 289 (3d Cir. 2010) (applying “clear and

unambiguous” standard) with Merrill Lynch & Co., 640 F.3d at 548 (applying “plain and
ordinary meaning” standard). We conclude that the policy unambiguously waives
removal and, therefore, affirm without deciding which standard to apply.

    We agree with the District Court’s keen analysis of the contract. Although the policy
language appears contradictory at first glance—selecting Delaware’s courts as the forum
in one clause, yet preserving removal in another—upon closer inspection it is coherent



1
 We exercise plenary review of these contractual and waiver issues. See Ario v.
Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of Account, 618 F.3d
277, 287 (3d Cir. 2010).

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and complementary. As the District Court concluded, the policy contemplates three types
of disputes:
          The three types of claims are: (1) disputes over an amount to be
          paid; (2) disputes over a failure to pay; and (3) any other disputes
          concerning the Policy, including coverage. The first category of
          disputes is the subject of the “Arbitration” section of the Policy,
          which channels such disputes first to mediation and, if unresolved,
          “shall then be referred to arbitration . . . [in] London, England. The
          second category is the subject of Section 13’s “Disputes Clause” and
          specifically its subsection on “Service of Suit.” This provision
          provides that “in the event of the failure of the Underwriters hereon
          to pay,” the dispute may be brought to “a court of competent
          jurisdiction within the State of Delaware;” with respect to this
          category of disputes, the parties reserve their right to remove. Hence,
          the Policy’s express right to remove is limited to disputes over a
          failure to pay. The third category deals with all other disputes
          concerning the Policy, including—as here—disputes over coverage.
          The handling of this third category of disputes is addressed in
          Section 13’s “Disputes Clause;” this category of disputes is subject
          to “the exclusive jurisdiction of the courts stated in the Schedule,”
          i.e., the Delaware state courts.

App’x 20 (citations omitted). Because this dispute concerns coverage, it must be
presented to the Delaware state courts.

   We reject the insurers’ argument that the words “[n]othing in this Clause constitutes

or should be understood to constitute a waiver of Underwriters’ rights . . . to remove”
modify the forum-selection clause. App’x 80. As the District Court noted, “this Clause”
refers to the Service of Suit section, not to the policy as a whole. App’x 19. Any other
reading would ignore or contradict the arbitration and forum-selection clauses elsewhere
in the policy. We also reject the insurers’ argument that the term “Jurisdiction of the State
of Delaware, USA,” see App’x 61, can be construed to encompass the jurisdiction of
federal courts located in Delaware. A stipulation to the exclusive jurisdiction of the courts



                                               5
of a particular state does not simultaneously submit the parties to the distinct jurisdiction
of the federal courts.

                                       IV. Conclusion

   We affirm the District Court’s remand order. This dispute concerns coverage. The
parties selected the courts of the State of Delaware as the exclusive forum for their policy

coverage disputes. Accordingly, the insurers waived their right to remove the Delaware
actions to federal court.




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