Costas v. Deposit Guaranty, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 20, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60969
Summary Calendar
LYNDA ANN COSTAS,
Plaintiff-Appellee,
versus
DEPOSIT GUARANTY NATIONAL BANK; AMSOUTH BANK,
as successor in interest to
Deposit Guaranty National Bank,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Mississippi - Jackson
USDC No. 3:02-CV-970-WSU
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
This is an appeal from the district court’s order
remanding the case to a Mississippi state court based on a clause
in a Trust Agreement. For the following reasons, the order is
REVERSED and the case REMANDED.
Lynda Costas (“Costas”) is the income beneficiary of the
Lynda Ann Costas Trust, which AmSouth Bank (“AmSouth”) formerly
administered as trustee. Costas filed this suit in the Chancery
Court of the First Judicial District of Hinds County, Mississippi,

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alleging that AmSouth mismanaged the trust assets. AmSouth removed
the case to federal court, invoking diversity jurisdiction. Costas
moved to remand the case back to the Mississippi state court on the
grounds that the 1964 Trust Agreement contains a forum selection
clause preventing AmSouth from exercising its right to removal.
The district court interpreted the clause in the Trust Agreement to
be a forum selection clause that reflected the parties’ intent to
make the Mississippi state court the exclusive venue for their
disputes. AmSouth appeals, arguing that the clause was intended to
establish at least one chancery court whose jurisdiction would not
be disputed for trust administration and is not a clear,
unequivocal waiver of federal jurisdiction.
The clause in question states as follows:
XI.
The parties hereto so far as they lawfully may, declare
that the Trust hereby created and defined shall be under
the jurisdiction of the Chancery Court of the First
Judicial District of Hinds County, Mississippi, whenever
and if the aid of the Court shall be invoked. However,
this provision is not intended to require any accounting
to, or approval by, such court of any action on the part
of the Trustee, or to subject the general administration
of this Trust to such jurisdiction, except for the
particular matter for which the Court’s aid may be
invoked.
Since the district court’s remand order falls outside the
scope of 28 U.S.C. § 1447(d), it is reviewable on appeal. We
review the denial of a motion to remand de novo. Miller v. Diamond
Shamrock Co., 275 F.3d 414, 417 (5th Cir. 2001). 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.

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City of New Orleans v. Municipal Administrative Services, Inc., 376
F.3d 501, 504 (5th Cir. 2004). A party may waive its rights by,
inter alia, establishing an exclusive venue within the contract.
Id. An agreement conferring jurisdiction in one forum will not
necessarily be interpreted as excluding jurisdiction elsewhere.
Id. “For a forum selection clause to be exclusive, it must go
beyond establishing that a particular forum will have jurisdiction
and must clearly demonstrate the parties’ intent to make that
jurisdiction exclusive.” Id.
The clause at issue in this case specifies one jurisdic-
tion without containing any words that would exclude any other
jurisdiction. The parties consented to jurisdiction in the
Mississippi state court by declaring that the Chancery Court would
have jurisdiction “whenever and if the aid of the Court shall be
invoked.” AmSouth offers a plausible explanation why the parties
to the Trust Agreement would include such a provision: The parties
wanted the trust itself to be judicially administered when
necessary in Hinds County (where the trustee’s offices were
located), without the necessity of resorting to other courts in
other counties (such as Claiborne County, where the subject
property lies). AmSouth’s explanation is not, of course, inconsis-
tent with the possibility of removal to federal court from Hinds
County.
We hold that the clause in question does not clearly
demonstrate the parties’ intent to make Mississippi state court

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jurisdiction exclusive, and thus REVERSE the district court’s
remand order.
REVERSED and REMANDED.

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