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Grand View PV Solar Two, LLC v. Helix Electric, Inc.

United States Court of Appeals, Fifth Circuit

February 1, 2017

GRAND VIEW PV SOLAR TWO, LLC; CENTAURUS RENEWABLE ENERGY, L.L.C., Plaintiffs-Appellees Cross-Appellants,
v.
HELIX ELECTRIC, INCORPORATED/HELIX ELECTRIC OF NEVADA, L.L.C., J.V., a California Partnership; HELIX RENEWABLES, A CALIFORNIA JOINT VENTURE; HELIX ELECTRIC, A NEVADA LIMITED LIABILITY COMPANY OF NEVADA, L.L.C., Agent of Heliz Electric, a Nevada Limited Liability Company, Defendants-Appellants Cross-Appellees.

         Appeals from the United States District Court for the Southern District of Texas

          Before JOLLY, SMITH, and GRAVES, Circuit Judges.

          JERRY E. SMITH, Circuit Judge

         Defendants appeal a remand to state court.[1] The district court decided that it had no jurisdiction because defendants had granted "sole and exclusive" jurisdiction to the state courts. Finding no error, we affirm.

         I.

         Plaintiff Grand View PV Solar Two, L.L.C. ("Grand View"), owns a solar power project in Idaho. A second plaintiff, Centaurus Renewable Energy, L.L.C. ("Centaurus"), is a producer of renewable energy. In the first half of 2015, Grand View entered into two contracts with the Helix Entities, which have expertise in designing, equipping, and constructing solar power plants. In August 2015, Centaurus and Helix Electric, L.L.C., entered into a third agreement, the Mutual Confidentiality Agreement ("MCA"). At the time, Cen-taurus was in the process of acquiring Grand View, which occurred in September 2015. Centaurus signed the MCA in anticipation of acquiring Grand View and entering into a final agreement with the Helix Entities to construct the solar power plant.

         The MCA requires the parties to maintain the confidentiality of certain project-related materials. The parties and their "subsidiaries and affiliated companies" consented to the following forum-selection clause ("FSC"):

The Parties hereto hereby irrevocably and unconditionally consent to the sole and exclusive jurisdiction of the courts of Harris County in the State of Texas for any action, suit or proceeding arising out of or relating to this Agreement or the Proposed Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts. The Parties hereto further hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in the courts of Harris County in the State of Texas, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

         Negotiations between Centaurus and the Helix Entities soon broke down. In October 2015, Helix Electric's president accused Centaurus of breaching the MCA. Centaurus denied that charge. In November 2015, Cen-taurus and Grand View sued the Helix Entities in Harris County state court, alleging that the Helix Entities had breached their earlier contracts with Grand View and, among other things, requesting a declaratory judgment to determine rights under the MCA.

         In December 2015, the Helix Entities sued Grand View and Centaurus in California federal court and removed the Texas state suit to the federal court a quo. In January 2016, Centaurus and Grand View moved to remand, and the district court agreed. The Helix Entities appeal.[2]

         II.

         A contractual clause prevents removal where the clause amounts to a "clear and unequivocal" waiver of removal rights. City of New Orleans v. Mun. Admin. Servs., Inc., 376 F.3d 501, 504 (5th Cir. 2004). "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 an exclusive venue within the contract." Id. Ambiguous language cannot constitute a "clear and unequivocal" waiver. Id. at 505-06. Under Texas law, a contract "is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning." Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (citation omitted). Because removal must be unanimous, a single defendant's waiver of its removal rights is enough to defeat removal. Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986). "[A]ny doubt about the propriety of removal must be resolved in favor of remand." Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).

         Plaintiffs correctly allege that Helix Electric waived its removal rights by agreeing in the MCA to "the sole and exclusive jurisdiction of the courts of Harris County in the State of Texas for any action, suit or proceeding arising out of or relating to this Agreement or the Proposed Transaction."[3] The MCA's FSC is "clear and unequivocal": It gives Harris County state courts exclusive jurisdiction over disputes such as the one plaintiffs brought in that county. Because Helix Electric, L.L.C., agreed to the MCA's terms, it cannot remove, and neither can its co-defendants.

         The Helix Entities claim that the MCA's FSC does not bar them from removing. They advance two theories. The first is that the words of the FSC are ambiguous. The Helix Entities cite three grounds: (1) It is not clear what "Proposed Transaction" means; (2) it is not evident whether Grand View qualifies as a subsidiary or affiliated company under the MCA; and (3) the FSC omits the term "Proposed ...


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