A forum selection clause in an agreement provides that the parties “irrevocably consent to exclusive jurisdiction and venue of the state and federal courts in the state of Delaware.” Does the provision constitute a waiver of a party’s right to remove the case to federal court if the other party files suit in a Delaware state court? It does according to U.S. District Judge Leonard P. Stark of the District of Delaware. In a short, four-page memorandum order in InterDigital v. Wistron, C.A. No. 15-478-LPS (D.Del. June 18, 2015), Stark granted plaintiff InterDigital’s emergency motion to remand based solely on this language in the agreement’s forum selection clause.

InterDigital argued there was a long line of cases within the Third Circuit holding that, by entering into a contract with a forum selection clause, the defendant waives its right to object to the plaintiff’s choice of forum or to remove the litigation from the plaintiff’s chosen forum. According to InterDigital, a party’s agreement to jurisdiction in state court, even as one of several options that includes the federal court to which the case could be removed, is an agreement by that party to be sued in, and to stay in, the plaintiff’s chosen forum. InterDigital placed particular emphasis on the language in the forum selection clause that defendant Wistron “irrevocably consent[s] to exclusive jurisdiction and venue” in the state court.

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