Levin v. Unum Life Insurance Company Of America

Filing 27

ORDER by Judge Whyte denying 8 Motion to Remand (rmwlc3, COURT STAFF) (Filed on 11/16/2009)

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ORDER DENYING MOTION TO REMAND--No. C-09-2869 RMW TER

E-FILED on 11/16/09

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

ROGER M. LEVIN, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA; and DOES 1 to 10, Defendants.

No. C-09-2869 RMW ORDER DENYING MOTION TO REMAND [Re Docket No. 8]

Plaintiff's motion to remand came on for hearing before the court on August 28, 2009. Defendant opposes the motion. Having considered the papers submitted by the parties and the arguments of counsel, and for good cause appearing for the reasons set forth below, the motion is denied. Plaintiff filed suit in Santa Clara County Superior Court to enforce a contract, specifically a mediation agreement. Defendant removed the action on the basis of diversity jurisdiction. Plaintiff now seeks an order remanding the action, contending that removal was improper because the contract's enforcement clause requires litigation in Santa Clara County Superior Court. That clause provides as follows:

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"Either party may enforce this agreement in Santa Clara County Superior Court pursuant to CCP Section 664.6." The dispositive issue is whether the enforcement clause quoted above is mandatory, requiring litigation to be brought only in Santa Clara County Superior Court, or instead permissive, which would allow removal to federal court. This is a matter of contract interpretation. Northern Cal. District Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 10341036 (9th Cir. 1995). To be mandatory, the clause must contain language that clearly designates the forum as the exclusive one. Id. Applying this standard to the clause at issue in this case, the court finds that the clause is not mandatory. By its terms, the clause authorizes either party to seek enforcement in the Superior Court of Santa Clara County, pursuant to the motion procedure set forth in CCP §664.6, but nothing within its scope can reasonably be interpreted to "clearly designate" that forum as the exclusive one. Removal was proper. Accordingly, the motion to remand is denied.

DATED:

11/13/09

RONALD M. WHYTE United States District Judge

ORDER DENYING MOTION TO REMAND--No. C-09-2869 RMW TER 2

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Notice of this document has been electronically sent to: Counsel for Plaintiff: Joseph Hoffman, Esq. Email: [e-mail] Melvin Joseph Hoffman Email: [e-mail]

Counsel for Defendants: William Bernard Reilly Email: [e-mail] Anna M. Martin Email: [e-mail] Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program.

Dated:

11/16/09

TER Chambers of Judge Whyte

ORDER DENYING MOTION TO REMAND--No. C-09-2869 RMW TER 3