By: Thomas S. Tripodianos Published: December 2013

Invoking a Forum Selection Clause

Question. Can a plaintiff invoke a forum selection clause after commencing an action in the wrong county?

Answer. No.

Plaintiff commenced a breach of contract action against Defendant in Nassau County Supreme Court. (See Def. Opp. Br., Docket Entry 8-5, at 1.) Defendant then removed the action to Federal Court in Suffolk County.

 

Plaintiff seeks to send the case back to state court in Nassau County based upon a forum selection clause contained in the Subcontract. That clause provides that "any action or proceeding arising out of, in connection with, or in relation to this subcontract, shall be resolved by litigation in the Courts of the State of New York, Suffolk County."

Generally, a defendant in an action pending in state court may remove that case to federal court only if it could have originally been commenced in federal court. 28 U.S.C. §1441(a)). However, a clear and unequivocal clause in a contract may act as a waiver of a party's statutory right to remove a case to federal court.

Courts that have considered this issue have typically differentiated between forum selection clauses that identify a specific court and those that merely identify a geographic location for venue purposes.

Plaintiff argues that the language of the forum selection clause contained in the Subcontract limits jurisdiction and venue to New York State courts to the exclusion of federal courts and that, therefore, the action must be remanded.

The contractual forum selection clause at issue here specifically designated "Courts of the State of New York, Suffolk County." Yet Plaintiff commenced this action in — and seeks remand to — Nassau County. Plaintiff has effectively waived its right to enforce the forum selection clause and cannot seek remand to Nassau County.

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