                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                 No. 06-11935                  SEPTEMBER 25, 2006
                             Non-Argument Calendar              THOMAS K. KAHN
                                                                    CLERK
                           ________________________

                      D. C. Docket No. 05-80759-CV-DTKH

CITY OF WEST PALM BEACH,


                                                            Plaintiff-Appellee,

                                      versus

VISIONAIR, INC.,
a North Carolina corporation,

                                                            Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                (September 25, 2006)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      VisionAIR, Inc. appeals the district court’s order remanding this case to state
court in Palm Beach County, Florida, where it was originally filed. The district

court’s order was based on its interpretation of the forum selection clause in the

parties’ contract. The court held that the clause was ambiguous and construed it

against VisionAIR, the drafter. VisionAIR contends that the district court erred

because the clause is unambiguous and permits suit in both federal and state court.

                                           I.

      The forum selection clause in the parties’ contract provides: “This

agreement shall be governed by the laws of the State of Florida. All claims

concerning the validity, interpretation, or performance of any of its terms and

provisions, or any of the rights or obligations of the parties hereto, shall be

instituted and prosecuted in Palm Beach County, Florida.” Pursuant to this clause,

the City of Palm Beach filed an action against VisionAIR in the Circuit Court of

the Fifteenth Judicial Circuit in and for Palm Beach County, Florida. VisionAIR

removed the case to federal court on the basis of diversity jurisdiction. The City

filed a motion for remand which the district court granted based on this Court’s

decision in Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269

(11th Cir. 2004). The district court held that, based on Global Satellite, the forum

selection clause was ambiguous and construed the clause against VisionAIR,

which it found to be the drafter of the clause.



                                            2
       VisionAIR filed a Rule 59(e) motion to reopen the case and for

reconsideration in the district court, arguing that the court had misinterpreted

Global Satellite. In ruling on that motion, the district court stated that “it may have

incorrectly summarized the exact holding of” Global Satellite, but it still rejected

VisionAIR’s argument. VisionAIR now contends that Global Satellite establishes

that the forum selection clause at issue here unambiguously permitted suit in either

state or federal court in Palm Beach County, Florida. The City contends that the

doctrine of invited error precludes us from reviewing VisionAIR’s argument on

appeal.

                                                 II.

       The district court based its order of remand solely on the parties’ forum

selection clause. We review the district court’s interpretation of the clause de

novo. Global Satellite, 378 F.3d at 1271. We review the district court’s order

denying the Rule 59(e) motion to alter or amend judgment for an abuse of

discretion. Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc., 763 F.2d

1237, 1238–39 (11th Cir. 1985).               VisionAIR argues that the district court

erred when it found the forum selection clause to be ambiguous.1 The forum


       1
          We are not convinced by the City’s argument that the district court’s remand order,
which was based on a misreading of Global Satellite, was invited error because VisionAIR
initially urged that misreading of Global Satellite on the district court. The doctrine of invited
error applies when a party, by its actions, induces the district court to commit error in the course

                                                  3
selection clause in the parties’ contract provides that “[a]ll claims . . . shall be

instituted and prosecuted in Palm Beach County, Florida.” This Court considered a

substantially similar clause in Global Satellite. That clause stated that “[v]enue

shall be in Broward County, Florida.” Global Satellite, 378 F.3d at 1271. We held

that the clause mandated venue in Broward County but, because it did not specify a

forum, the clause permitted venue in either the Seventeenth Judicial Circuit of

Florida or the Fort Lauderdale Division of the Southern District of Florida, both of

which are located in Broward County. Id. at 1272.

       The district court erred in its interpretation of the clause in this case. Under

our decision in Global Satellite, which involved substantially similar language, the

clause permits venue in either state or federal court, so long as that court is in Palm

Beach County. The relevant clause in Global Satellite stated only that “[v]enue



of the proceedings and then uses that error as a basis for reversal on appeal. See, e.g., United
States v. Harris, 443 F.3d 822, 823–24 (11th Cir. 2006) (doctrine of invited error precluded
review where defendant waived right to a presentence investigation report and then argued on
appeal that he had a right to one); United States v. Baker, 432 F.3d 1189, 1215–16 (11th Cir.
2005) (doctrine of invited error precluded review of claim that admission of testimony violated
the hearsay rule and Confrontation Clause where the party’s counsel elicited that testimony at
trial); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1331 (11th Cir. 1999) (the Court “will
not find that a particular instruction constitutes plain error if the objecting party invited the
alleged error by requesting the substance of the instruction given.”). In this case VisionAIR did
advocate the same erroneous reading of Global Satellite which it now contends that the district
court erred in adopting. However, VisionAIR also made alternative arguments that the clause at
issue here does not unambiguously waive the defendant’s right of removal and, therefore,
permits suit in either state or federal court. The doctrine of invited error does not preclude
parties from making alternative arguments. Therefore, we will review the district court’s
interpretation of the clause.

                                                4
shall be in Broward County, Florida,” while the clause here states that “[a]ll claims

. . . shall be instituted and prosecuted in Palm Beach County, Florida.”2 The City

argues that the phrase “instituted and prosecuted” differentiates this clause from

the clause in Global Satellite. We disagree. This phrase indicates only that

litigation must be “instituted and prosecuted” in either a state or federal forum, so

long as that forum is in Palm Beach County.

       The City further contends that even if the contractual provision permits suit

in either a state or federal forum, we must affirm the district court’s remand order

because the federal courthouse in Palm Beach County was closed for construction

and no trials were being held there as of the time when VisionAIR filed its reply

memorandum in support of its Rule 59(e) motion. The City argues that because

VisionAIR admitted the temporary closure of the courthouse in its reply

memorandum, that condition is presumed to continue to exist absent contrary

evidence. Because a trial could not be held in federal court in Palm Beach County,

the City argues the case must be remanded to state court.

       The City’s argument lacks merit. The last orders entered in this case were

       2
         In Global Satellite the Court also addressed a second clause in the parties’ contract
provision which stated that “[t]he parties . . . agree in the event of litigation to submit to the
jurisdiction of Broward County, Florida.” Id. at 1271. The Court held that this second clause
was ambiguous as to which forum it intended to designate, and construed the clause against the
drafter. Id. at 1274. In its order of remand in this case the district court failed to distinguish
between the two clauses at issue in Global Satellite. Our decision here turns on our
interpretation of the first clause in Global Satellite.

                                                 5
marked: “DONE and SIGNED in chambers at West Palm Beach, Florida.” We

take judicial notice that West Palm Beach, Florida is within Palm Beach County.

Up to this point, the litigation has proceeded “in Palm Beach County, Florida.”

We decline to remand this case in contravention of the express language of the

parties’ contractual provision when the litigation has proceeded in an appropriate

forum. See Global Satellite, 378 F.3d at 1273 (rejecting the argument that district

court’s local rule which could potentially permit trial outside of the specified

county warranted interpreting the clause to forbid removal).

                                          III.

      Accordingly, the district court’s grant of the City’s motion to remand is

REVERSED and the case is REMANDED to the district court for further

proceedings consistent with this opinion.




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