                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          July 2, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
PINE TELEPHONE COMPANY, INC.,
an Oklahoma corporation,

             Plaintiff-Counter-Claim-
             Defendant-Appellee,

v.                                                         No. 11-7080
                                                  (D.C. No. 6:11-CV-00353-JHP)
ALCATEL-LUCENT USA, INC.,                                  (E.D. Okla.)
a Delaware corporation, f/k/a Alcatel
USA Marketing, Inc.,

             Defendant-Counter-
             Claimant-Appellant.


                            ORDER AND JUDGMENT*


Before HARTZ, ANDERSON, and O’BRIEN, Circuit Judges.


      Defendant-appellant Alcatel-Lucent USA, Inc. (“Alcatel”) appeals from an

order of the district court remanding this breach of contract action to the Oklahoma

state court where plaintiff-appellee Pine Telephone Company, Inc. (“Pine


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Telephone”) filed it. After Alcatel removed the case to federal court, Pine Telephone

successfully sought the remand to its chosen Oklahoma state court forum based on a

venue clause in the parties’ contract. Because the clause relied upon by Pine

Telephone neither establishes a mandatory state court venue for Pine Telephone’s

breach of contract action nor clearly and unequivocally waives Alcatel’s right to

remove this action to federal court once filed in state court, we VACATE the order

remanding the case to state court and REMAND for further proceedings in the

Eastern District of Oklahoma.

                                           I.

      We begin by establishing our jurisdiction to entertain this appeal. An order

remanding a case to the state court from which it was removed based on lack of

jurisdiction or a defect in the removal procedure is ordinarily not reviewable on

appeal. 28 U.S.C. § 1447(d). But this statutory prohibition is inapplicable to

remands “based on a determination on the merits of a nonjurisdictional issue,” such

as “the district court’s decision to honor a forum selection clause.” SBKC Serv.

Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578, 580 (10th Cir. 1997) (quotation

omitted). Although the district court’s minute order did not detail its reasons for the

remand, it expressly granted Pine Telephone’s remand motion—a motion in which

Pine Telephone had sought enforcement of the contractual clause. We therefore

conclude that the order appealed from was based on the merits of a nonjurisdictional

issue and that § 1447(d) does not preclude our review. See SBKC, 105 F.3d at 580.


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      Addressing a different facet of the jurisdictional inquiry, we note that appellate

jurisdiction is also proper because the district court’s remand order falls within the

collateral order exception to the final judgment rule. See Milk ’N’ More, Inc. v.

Beavert, 963 F.2d 1342, 1344-45 (10th Cir. 1992).

                                           II.

      So long as diversity jurisdiction was proper (and neither party argues it was

not), Alcatel had the right to remove this case to federal court, see 28 U.S.C.

§ 1441(a), unless it gave up that right as part of the contract that forms the basis of

the parties’ dispute. Pine Telephone contends that Alcatel did just that, in the last

sentence of paragraph 18.10 of the contract. That clause reads as follows:

      18.10 Purchaser [Pine Telephone] submits to the personal jurisdiction
      of the state or federal courts located in the State of Texas. Purchaser
      stipulates that venue for adjudication of any dispute arising out of this
      Agreement may be in Dallas County or Collin County, Texas.
      Notwithstanding the foregoing, either party may initiate and prosecute
      any legal proceeding or seek enforcement of any judgment in any
      proper court having jurisdiction in the United States or elsewhere.

Aplt. App. at 33 (emphasis added) (quotation omitted).

      The parties reach differing conclusions concerning the effect of the highlighted

language. Alcatel argues that it represents a permissive venue provision that did not

clearly and unequivocally waive Alcatel’s right to remove the action to federal court.

Pine Telephone acknowledges that the parties did not by the highlighted language

designate a mandatory or exclusive venue in which this action had to be brought. But

Pine Telephone contends that the above-cited language, giving it the right to “initiate


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and prosecute” an action in any proper court with jurisdiction, foreclosed Alcatel’s

right to remove the action to federal court once Pine Telephone initiated its action in

its chosen state court forum.

      Our review “is basically one of contract interpretation, requiring de novo

consideration.” Milk ’N’ More, 963 F.2d at 1345. Our aim is to “enforce the

agreement between the parties in accordance with its own terms.” SBKC, 105 F.3d

at 582. Central to our inquiry, however, is the legal principle that “a waiver of one’s

statutory right to remove a case from a state to a federal court must be clear and

unequivocal.” Milk ’N’ More, 963 F.2d at 1346 (internal quotation marks omitted)

(emphasis added).

      We agree with Alcatel, first, that the highlighted language represents only a

permissive and not a mandatory venue provision. “In particular, the clause refers

only to jurisdiction [not to a specified venue], and does so in non-exclusive terms

(e.g., there is no use of the terms ‘exclusive,’ ‘sole,’ or ‘only’).” K & V Scientific

Co. v. Bayerische Motoren Werke Aktiengesellschaft (“BMW”), 314 F.3d 494, 500

(10th Cir. 2002). These are indicia of a permissive venue provision, see id., which is

insufficient to effectuate a waiver of Alcatel’s right of removal.

      The provision at issue in this case does not fall entirely within the ambit of

permissive venue language construed in our prior cases, however. Here, we are

presented not only with the issue of whether the parties “intended to commit [the

filing of a suit] to [a specific] court to the exclusion of all others,” SBKC, 105 F.3d


                                          -4-
at 582, but also whether they intended to foreclose removal to federal court once a

permissive but appropriate state court forum had been selected. Again, only if such

an understanding appears clearly and unequivocally in the language the parties used

will we conclude that Alcatel waived its right of removal.

       No such clear and unequivocal intent appears here. The parties have not

pointed us to any case law interpreting the particular language used in their contract,

nor have we found any in the waiver-of-removal context. While Pine Telephone is

correct in asserting that in the presence of ambiguity the clause must be construed

against Alcatel as drafter, see Milk ‘N’ More, 963 F.2d at 1346, this factor is not

dispositive. We turn instead to the plain meaning of the provision. SBKC, 105 F.3d

at 581-82.

      The language here relied on by Pine Telephone permitted it to “initiate and

prosecute” a legal proceeding. According to one respected commentator, the word

“prosecute” when used in the civil context means “to carry out or engage in a legal

action; to follow up on a legal claim.” Bryan A. Garner, A Dictionary of Modern

Legal Usage 706 (2d ed. 1995). The foregoing definition if applied here would not

clearly and unequivocally guarantee the party filing the action the right to pursue its

legal proceeding to completion or without removal from state court. Nor does the

word “initiate” carry such a connotation. It means merely to “begin, open, or

introduce.” Id. at 448. Finally, combining the two words using the conjunctive

phrase “and” does not clearly and unequivocally signify the suing party’s right to


                                          -5-
both file and prosecute a legal proceeding to completion within a chosen state court

forum.

      The choice of venue clause in the parties’ contract does not establish an

enforceable waiver of Alcatel’s right to remove this action to federal court. The

judgment of the district court is therefore VACATED and the case is REMANDED

for further proceedings in accordance with this order and judgment.


                                               Entered for the Court


                                               Stephen H. Anderson
                                               Circuit Judge




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