Kaiser Silverman Global, LLC v. Word of God Fellowship, Inc.

Filing 22

ORDER on 10 Plaintiff's Motion to Remand. Plaintiff's Motion to Remand (Docket No. 10 ) is GRANTED. The clerk is directed to transfer this matter back to Boulder County District Court. It is further ORDERED that each party shall pay their own attorney fees and costs associated with the motion. By Magistrate Judge Michael J. Watanabe on 12/12/12. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02623-RBJ-MJW
KAISER SILVERMAN GLOBAL, LLC, a Colorado limited liability company,
Plaintiff,
v.
WORD OF GOD FELLOWSHIP, INC. d/b/a Daystar Television Network, a Georgia
nonprofit corporation,
Defendant.

ORDER ON
PLAINTIFF’S MOTION TO REMAND
(Docket No. 10)

MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this court pursuant to an Order Referring Case (Docket No.
18) issued by Judge R. Brooke Jackson on November 13, 2012.
Now before the court is Plaintiff’s Motion to Remand (Docket No. 10). The court
has carefully considered the subject motion (Docket No. 10), defendant’s response
(Docket No. 15), and plaintiff’s reply (Docket No. 21) In addition, the court has taken
judicial notice of the court’s file, and has considered the applicable Federal Rules of
Civil Procedure and case law. The court now being fully informed makes the following
findings of fact, conclusions of law, and order.
This matter was commenced on September 7, 2012 when plaintiff filed its
complaint in Boulder County District Court. On October 2, 2012, defendant timely filed
a notice of removal based on diversity of citizenship of the parties. Plaintiff now seeks

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to remand this matter to Boulder County District Court pursuant to 28 U.S.C. § 1447(c).
Plaintiff argues, pursuant to the terms of an agreement entered into between the
parties, that defendant waived its right to seek to remove this action.
The agreement in question, which was attached as Exhibit 1 to plaintiff’s state
court complaint, is titled “Purchaser Representative, Policy Submission and Fee
Agreement” (hereinafter “Fee Agreement”). The Fee Agreement was entered into by
the parties in April 2011. Paragraph 18 of the Fee Agreement provides that:
Each of the parties hereto irrevocably and unconditionally submits to the
exclusive jurisdiction of the courts of the State of Colorado for the
purposes of enforcing this Agreement. In any such action, suit or other
proceeding, each of the parties hereto irrevocably and unconditionally
waives and agrees not to assert by way of motion, as a defense or
otherwise any claims that it is not subject to the jurisdiction of the above
court, that such action or suit is brought in an inconvenient forum or that
the venue of such action, suit or other proceeding is improper.
Defendant argues that the Fee Agreement does not govern the life insurance
policy which is at issue in this matter. Rather, defendant argues there is no written
agreement, and thus no forum selection clause, which governs this matter.
In addition, beyond disagreeing on the applicability of the Fee Agreement, the
parties also disagree as to the proper scope of the court’s review when considering a
motion to remand. Defendant argues the court must only consider the four corners of
the complaint when making its determination. Plaintiff argues the matter before the
court is one of contract interpretation, and as such, the court must consider the terms of

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the Fee Agreement.
First, as to applicable scope of the court’s review, the court finds that it is not
limited to the four corners of the complaint as suggested by defendant. The cases cited
by defendant involve the question of original jurisdiction of the court; the cases do not
involve forum selection clauses or contract interpretation. Here, there is no dispute that
this court has jurisdiction over the case, under 28 U.S.C. § 1332, based on diversity of
the parties and the amount in controversy. Rather, the parties disagree as to the
applicability of a forum selection clause found in a contract entered into between the
parties. As such, the remand issue is one of contract interpretation, and necessarily the
court must look beyond the complaint to make a determination. See Milk ‘N’ More, Inc.
v. Beavert, 963 F.2d 1342 (10th Cir. 1992) (examining a forum selection clause); Roche
Constructors, Inc. v. One Beacon America Ins. Co., No. 11-cv-01903-PAB-CBS, 2012
WL 1060000, at *3 (D. Colo. Mar. 28, 2012); Cattleman’s Choice Loomix, LLC v. Heim,
No. 11-cv-00446-WYD-CBS, 2011 WL 1884720, at *2-4 (D. Colo. May 18, 2011).
Next, the court must determine if plaintiff’s claims arise out of the Fee
Agreement, and consequently if the forum selection clause therein governs this matter.
Plaintiff’s complaint includes fives causes of action: (1) breach of contract; (2) breach of
implied duty of good faith and fair dealing; (3) tortious interference with prospective
contractual relations; (4) civil conspiracy; and (5) quantum meruit.
The Fee Agreement includes a provision which states that plaintiff would be
entitled to a fee if defendant purchases a policy located by plaintiff. Further, it states
that neither party “shall attempt to circumvent [the Fee Agreement] in an effort to obtain
or avoid fees.” The Fee Agreement also includes a confidentiality provision.

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Plaintiff’s complaint alleges that defendant purchased a policy, pursuant to the
Fee Agreement, in the Spring of 2011. Plaintiff further alleges that it later located
another policy (the “West Coast Policy”) and submitted it to defendant. On June 5,
2011, plaintiff alleges it provided defendant with a Confidential Executive Summary
analyzing the West Coast Policy. Eventually defendant purchased the West Coast
Policy through another party for a price approximately $200,000 less than the price
offered by plaintiff. Plaintiff alleges it had other parties interested in the West Coast
Policy, but did not pursue those opportunities based on defendant’s assurances that it
was considering the purchase.
All of plaintiff’s claims arise directly, or indirectly, from the Fee Agreement. The
breach of contract claim alleges defendant breached the Fee Agreement by “the
unauthorized use, and disclosure, of confidential information” concerning the West
Coast Policy and by purchasing the West Coast Policy without paying a fee to plaintiff
(thus circumventing the Fee Agreement). The second claim alleges that defendant did
not act in good faith in performing its obligations under the Fee Agreement. The third
claim alleges defendant induced plaintiff not to pursue other potential purchasers of the
West Coast Policy. The fourth claim alleges plaintiff conspired with the company it
eventually purchased the West Cost Policy from to circumvent the Fee Agreement. The
fifth claim is an alternative claim for quantum meruit.
Defendant argues that the Fee Agreement is not related or applicable to the
West Coast Policy. Defendant calls the Fee Agreement a “prior unrelated agreement”
and further states that the confidential materials provided to defendant concerning the
West Coast policy were not provided pursuant to the Fee Agreement. Defendant points

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out that the Fee Agreement does not reference the West Coast Policy.
Defendant’s argument plainly goes to the merits of plaintiff’s claims. The court is
in no position to judge the merits of plaintiff’s claims at this point in the proceedings;
doing so would be wholly improper. Although the Tenth Circuit has not specifically
addressed the issue, it is obvious to the court that when considering a motion to remand
in circumstances such as this, the court must accept the allegations in the complaint as
true, much as it would if it were considering a motion to dismiss for improper venue.
Other courts have come to a similar conclusion. See Pacheco v. St. Luke’s Emergency
Assocs., P.C. No. 12-10214-NMG, 2012 WL 3044245, at *1 (D. Mass. Jul. 20, 2012)
(adopted report and recommendation); Gullion v. JLG Serviceplus, Inc., No. H-06-1015,
2007 WL 294174, at *5 (S.D. Tex. Jan. 29, 2007);
Accordingly, it is clear based on the allegations in plaintiff’s complaint that its
claims arise from the Fee Agreement. The forum selection clause found therein is not
unreasonable, and is applicable to this matter. See Milk ‘N’ More, 963 F.2d at 1346
(stating that forum selection clauses are “prima facie valid and should be enforced
unless enforcement is shown by the resisting party to be unreasonable under the
circumstances”). Based on the terms of the forum selection clause, the court finds that
it is clear and unequivocal that defendant waived its right to remove this action from
Boulder County District Court.

WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Plaintiff’s Motion to Remand (Docket No. 10) is GRANTED. The

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clerk is directed to transfer this matter back to Boulder County District Court. It is further
ORDERED that each party shall pay their own attorney fees and costs
associated with the motion.

Date: December 12, 2012
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge