Howard Industries, Inc. v. Ridgeway et al

Filing 31

ORDER denying Plaintiff's 15 Motion to Remand to the Chancery Court of Jones County, Mississippi. Signed by District Judge Keith Starrett on May 27, 2015 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
HOWARD INDUSTRIES, INC.
V.

PLAINTIFF
CIVIL ACTION NO. 2:15cv38-KS-MTP

TERRY RIDGEWAY, et al.,
DEFENDANTS
MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court denies Plaintiff’s Motion to
Remand [15] this case to the Chancery Court of Jones County, Mississippi.
I. BACKGROUND
Prior to the filing of this suit, Defendants Terry Ridgeway (Ridgeway)
and Beth Ezell (Ezell) worked for Plaintiff Howard Industries, Inc. (Howard).
Compl., ECF No. 1-2 at 10. During their employment, both Ridgeway and
Ezell signed a Confidentiality, Non-Disclosure, and Non-Competition
Agreement. ECF No. 1-2 at 11. After Ridgeway and Ezell stopped working for
Howard, they accepted jobs to work for co-defendant Inline Electric Supply
Company, Inc. (Inline). ECF No. 1-2 at 10, 13.
On February 26, 2015 in the Chancery Court of the First Judicial
District, Jones County, Mississippi, Howard filed suit against Defendants.
ECF No. 1-2 at 10. Howard seeks monetary and injunctive relief against
Ridgeway and Ezell for their alleged violations of the Mississippi Uniform
Trade Secrets Act, violations of the non-compete contracts, and intentional
interference with Howard’s contractual and business relationships. ECF No.
1-2 at 11-13, 15-16. Additionally, Howard seeks monetary and injunctive

relief against Inline for its alleged conspiracy with Ridgeway and Ezell, and
interference with their non-compete contracts. ECF No. 1-2 at 14, 15-16.
On March 27, 2015, Inline removed the case to this Court. See Notice
of Removal, ECF No. 1. On April 14, 2015, Howard filed a Motion to Remand
and a Motion for Costs and Attorney’s Fees. Pl.’s Mot. to Remand and Costs
and Att’y’s Fees, ECF No. 15. Howard claims the unanimity requirement of
28 U.S.C. § 1446 is not satisfied. ECF No. 15 at 2-3. Howard bases this
argument on the forum-selection clause in its non-compete agreements with
Ridgeway and Ezell. Ex. A, ECF No. 15-1 at 4, Ex. B, ECF No. 15-2 at 4.
Howard argues that the forum-selection clause establishes the sole forum for
suits related to the contract, and that Ridgeway and Ezell expressly waived
their rights to remove the case. Pl.’s Mot. to Remand, ECF No. 15 at 2-3.
Accordingly, Howard argues that Ridgeway and Ezell cannot consent to
removal. ECF No. 15. Pursuant to 28 U.S.C. § 1447(c), Howard also requests
payment for its costs, actual expenses, and attorney’s fees incurred because of
the defective removal. ECF No. 15 at 3.
In response, Inline contends that the language in the forum-selection
clause was permissive and, therefore, does not require the case to be
remanded. Def.’s Resp. in Opp’n to Pl.’s Mot. to Remand, ECF No. 22 at 1.
Inline also argues that fees should not be awarded because removal was
proper. Def.’s Resp. in Opp’n to Pl.’s Mot. for Att’y’s Fees and Costs, ECF No.
24 at 2-3.
II. DISCUSSION
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“[A]ny civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed by the
defendant or defendants, to the district court of the United States . . . .” 28
U.S.C. § 1441(a) (2013). “When a civil action is removed solely under 28
U.S.C. § 1441(a), all defendants who have been properly joined and served
must join in or consent to the removal of the action.” 28 U.S.C. §
1446(b)(2)(A) (2013).
The non-compete contracts’ forum-selection clause provides:
Employee agrees that any litigation involving this Agreement
shall be brought in the Chancery Court, Second Judicial
District, Jones County, Mississippi, and Employee agrees to the
jurisdiction thereof and expressly waives any objection to such
jurisdiction and venue and agrees to subject himself thereto.
Employee specifically waives any right to trial by jury.
Ex. A, ECF No. 15-1, Ex. B, ECF No. 15-2. Howard argues that removal was
improper because Ridgeway and Ezell waived their right to remove by
signing a contract with this clause. Inline argues the forum-selection clause
is permissive, not mandatory.
The Fifth Circuit has held:
For a contractual clause to prevent a party from exercising its
right to removal, the clause must give a clear and unequivocal
waiver of that right. A party may waive its rights by explicitly
stating that it is doing so, by allowing the other party the right
to choose venue, or by establishing any exclusive venue within
the contract.
A party’s consent to jurisdiction in one forum does not
necessarily waive its right to have an action heard in another.
For a forum-selection clause to be exclusive, it must go beyond
establishing that a particular forum will have jurisdiction and

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must clearly demonstrate the parties’ intent to make that
jurisdiction exclusive.

City of New Orleans v. Mun. Admin. Servs., 376 F.3d 501, 504 (5th Cir. 2004)
(Citations and punctuation omitted).
Here, the forum-selection clause does not explicitly waive Defendants’
right to remove. Defendants waived their right to object to the state court’s
jurisdiction, but it is axiomatic that state and federal courts may have
concurrent jurisdiction. Baldwin v. Sears, Roebuck & Co., 667 F.2d 458, 460
(5th Cir. 1982). Likewise, the clause does not clearly and unequivocally
provide that the state court is the exclusive venue for any litigation, nor does
it provide that Plaintiff has the right to choose the venue. The parties merely
agreed that the Chancery Court of the Second Judicial District of Jones
County, Mississippi, would have jurisdiction over any litigation arising from
the non-compete agreements. In short, the forum-selection clause is
permissive, rather than mandatory.1 Indeed, Plaintiff’s argument that the
clause is mandatory is belied by the fact that it filed the case in the Chancery

1

See Keaty v. Freeport Indon., Inc., 503 F.2d 995, 957 (5th Cir. 1974) (finding the

phrase “This agreement shall be construed and enforceable according to the law of
the State of New York and that parties submit to the jurisdiction of the courts of
New York” to be permissive and not mandatory); Eastern Fishing & Rental Tool Co.,
v. Blaney, No. 2:11CV238, 2012 WL 73234, at *2 (S.D.Miss. Jan. 10, 2012) (finding
the phrase “any disputes regarding same shall rest in the appropriate Circuit or
Chancery Court of the Second Judicial District of Jones County, Mississippi” to be
permissive for lack of unequivocal language establishing an exclusive venue);
Firefighters’ Retirement System v. Citco Group Limited, No. 13-373, 2014 WL
3565716, at *6-*7 (M.D.La. July 18, 2014) (finding the phrase “shall be brought in
the Nineteenth Judicial District court” to be permissive because it did not clearly
demonstrate the parties’ intent to make jurisdiction exclusive).

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Court of the First Judicial District of Jones County, Mississippi, rather than
in the Second Judicial District, as specified in the forum-selection clause.
III. CONCLUSION
For the reasons stated above, the Court denies Plaintiff’s Motion to
Remand this case to the Chancery Court of Jones County, Mississippi.
SO ORDERED this the 27th day of May, 2015.

s/Keith Starrett

UNITED STATES DISTRICT JUDGE

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