289 Kilvert, LLC v. SBC Tower Holdings, LLC

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
289 KILVERT, LLC, SUCCESSOR IN
INTEREST TO PAUL AND BARRY
MILLER PARTNERSHIP, LLC,
Plaintiff,
v.
SBC TOWER HOLDINGS, LLC,
Defendant.
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C.A. No. 1:23-CV-00530-MSM-PAS
ORDER
Mary S. McElroy, United States District Judge.
This is an eviction action originally (and properly) filed in the Rhode Island
District Court, Third Division, which the plaintiff, 289 Kilvert, LLC, seeks to remand
to that Court. 	(ECF No. 8.) 	The defendant, SBC Tower Holdings, LLC, first
attempted to remove this matter to the Rhode Island Superior Court but the Third
Division District Court denied that request and set a trial date. The defendant then
removed the matter to this Court, on the grounds of diversity jurisdiction.1
The plaintiff is the owner and lessor of commercial property located at 289
Kilvert Street in Warwick, Rhode Island. When the plaintiff purchased the property,
the previous owner assigned to the plaintiff its right to a Cellular Property Lease
(“the Lease”). The defendant is the other party to that Lease.
1 The plaintiff does not challenge that the statutory requirements of diversity
jurisdiction are met.
See 28 U.S.C. § 1332(a).
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The Lease provided a choice-of-law provision that states as follows:
Law. This Agreement shall be governed by, construed and enforced in
accordance with the law of the State of Rhode Island.
(ECF No. 8-1 ¶ 24.)
The defendant and the plaintiff’s predecessor in interest also executed a
“Fourth Amendment” to the Lease that included the following provision:
10. 	Governing 	Law. 	Notwithstanding 	anything 	to 	the 	contrary
contained in the Lease and this Amendment, the Lease and this
Amendment shall be governed by and construed in all respects in
accordance with the laws of the State or Commonwealth in which the
Leased Premises is situated, without regard to the conflicts of laws
provisions of such State or Commonwealth.
(ECF No. 8-2 ¶ 10.)
These provisions make clear that the parties agreed that Rhode Island law will
apply to and govern the Lease. 	Indeed, under Rhode Island law, “parties are
permitted to agree that the law of a particular jurisdiction will govern their
transaction.”
	Webster Bank, Nat’l Ass’n v. Rosenbaum, 268 A.3d 556, 559-60 (R.I.
2022).
The question then turns to what the law to which the parties agreed to requires
as pertinent to this Motion to Remand. 	Rhode Island law provides that the state
“district court shall have exclusive original jurisdiction of … all actions between
landlords and tenants pursuant to chapter 18 of title 34….” 	R.I.G.L. § 8-8-3(a)(2).
Chapter 18 of title 34 in turn provides in relevant part:
If, in any case of a letting covered by this chapter, … the landlord or
reversioner wishing to repossess him or herself of the lands, building, or
parts of buildings let, or recover possession of the same from the tenant
… shall … institute a trespass and action for possession in the district
court where the premises are situated…..
R.I.G.L. § 34-18.1-9.
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These provisions make clear that Rhode Island law dictates that eviction
actions such as this one are to be brought in state district court.
The defendant, citing
Forty Six Hundred LLC v. Cadence Educ., LLC, 15 F.4th
70, 74 (1st Cir. 2021), argues that this Court must exercise its diversity jurisdiction
and cannot abstain by way of the
Burford abstention doctrine.2 	But this is not an
issue of abstention. 	This is an issue of enforcing what the parties agreed to in the
Lease, and notably there is no indication that the parties in
Forty Six Hundred agreed
to state law, much less one that included the requirement that the action be filed in
a particular court. Here, because the parties agreed that Rhode Island law governed,
and because Rhode Island law, § 8-8-3(a)(2), mandates the state district court as the
proper court for this action, the defendant is bound by that requirement and removal
to this Court was improper.
The Court therefore GRANTS the plaintiff’s Motion to Remand (ECF No. 8)
and REMANDS this matter to the Rhode Island District Court, Third Division, sitting
in Kent County.
2 “
Burford allows a federal court to dismiss a case only if it presents difficult questions
of state law bearing on policy problems of substantial public import whose importance
transcends the result in the case then at bar, or if its adjudication in a federal forum
would be disruptive of state efforts to establish a coherent policy with respect to a
matter of substantial public concern.”
	Forty Six Hundred LLC v. Cadence Educ.,
LLC, 15 F.4th 70, 75 (1st Cir. 2021).
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IT IS SO ORDERED.
_________________________________
Mary S. McElroy
United States District Judge
February 8, 2024
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