United States District Court, D. New Hampshire
Hiram Lodge Enterprises Corp.
TSN, LLC, d/b/a Asirvia and/or Asirvia Proximity Marketing Solutions, et al.
J. Cimler, Jr., Esq. Lisa DeBrosse Johnson, Esq. Michael J.
N. Laplante United States District Judge
this breach of contract action remains in federal court turns
on the specificity of the parties' agreed-to
forum-selection clause. Plaintiff Hiram Lodge Enterprises
Corp. brought this suit in Grafton County Superior Court,
claiming that defendants Donald W. LaPlume, Jr., Kevin
Marion, Donald Smith, and TSN, LLC, doing business as Asirvia
and/or Asirvia Proximity Marketing Solutions (collectively
“TSN”), breached an exclusive distribution
agreement between Hiram Lodge and TSN. Hiram Lodge also
brings several common-law and statutory claims arising from
that relationship. TSN timely removed the action, citing this
court's diversity jurisdiction under 28 U.S.C. §
1332(a). See 28 U.S.C. § 1441.
the parties' diversity and satisfaction of the
amount-in-controversy requirement, Hiram Lodge moves to
remand this action to the Superior Court in light of the
forum-selection clause in the parties' agreement.
Concluding that TSN did not clearly waive its right to remove
actions to this court through the forum-selection clause, the
court denies Hiram Lodge's motion.
Applicable legal standard
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or the defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). As the defendants
observe in their notice of removal,  this court has
subject-matter jurisdiction over this action under 28 U.S.C.
§ 1332 (diversity). The amount in controversy exceeds
$75, 000 and complete diversity exists between the parties.
Specifically, the plaintiff is a Canadian corporation with
its principal place of business in Canada, while the
corporate defendant, TSN, is a Wyoming limited liability
company, the individual members of which, who are also named
as defendants in this action, are citizens of Vermont,
Connecticut, and Maine.
forum-selection clause does not “divest a court of
jurisdiction that it otherwise retains, ” but rather
“merely constitutes a stipulation in which the parties
join in asking the court to give effect to their agreement by
declining to exercise its jurisdiction.” Silva v.
Encyclopedia Britannica Inc., 239 F.3d 385, 388 n.6 (1st
Cir. 2001) (quoting LFC Lessors, Inc. v. Pac. Sewer
Maint. Corp., 739 F.2d 4, 6 (1st Cir. 1984)). As such,
“a forum selection clause mandating that disputes be
resolved in state court operates as a waiver of the
parties' removal rights under § 1441.”
Skydive Factory, Inc. v. Skydive Orange, Inc., 2013
DNH 33, 1 (McAuliffe, J.) (citing Karl Koch Erecting Co.,
Inc. v. New York Convention Ctr. Dev. Corp., 838 F.2d
656, 659 (2d Cir. 1988)).
“[w]hen the basis for removal jurisdiction is
established and the issue of remand turns on the language of
a forum selection clause, ” as it does here,
“remand is only required where there is ‘clear
language indicating that jurisdiction and venue are
appropriate exclusively in the designated forum.'”
Wells Fargo Fin. Leasing, Inc. v. Tulley Auto. Grp.,
Inc., 2016 DNH 177, 5 (McCafferty, J.) (quoting
Inhabitants of Fairfield v. Time Warner Cable Ne.,
LLC, No. 1:14-CV-495, 2015 WL 1565237, at *1 (D. Me.
Apr. 8, 2015) (Levy, J.)). “The correct approach”
is to “enforce the forum clause specifically
unless” the party opposing its enforcement clearly
demonstrates “that enforcement would be unreasonable
and unjust, or that the clause was invalid for such reasons
as fraud or overreaching.” M/S Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 15 (1972).
determining whether to enforce the forum-selection clause and
remand this action to the Superior Court, this court may
consider not only the complaint, but also “documents
the authenticity of which are not disputed by the parties,
documents central to plaintiffs' claim, and documents
sufficiently referred to in the complaint.”
Claudio-De León v. Sistema Universitario Ana G.
Méndez, 775 F.3d 41, 46 (1st Cir. 2014) (internal
quotations and citation omitted). The contract containing the
forum-selection clause falls into all three of these
Lodge, a Canadian corporation based out of Toronto, makes and
sells Bluetooth-enabled wireless marketing devices called
“Royaltie Gems.” On May 9, 2017, Hiram Lodge
entered into an agreement with TSN, a limited liability
company based in New Hampshire, under which TSN would be the
sole distributor of its Royaltie Gems in the network
marketing industry. Hiram Lodge agreed to provide Royaltie
Gems, as well as the associated software and services, to TSN
under a private label brand called “Asirvia
parties included a forum-selection clause in the agreement,
which provides as follows:
Each Party irrevocably and unconditionally agrees that it
will not commence any action, litigation or proceeding of any
kind whatsoever against the other Party in any way arising
from or relating to this Agreement, including all exhibits,
schedules, attachments and appendices attached to this
Agreement, and all contemplated transactions, in any forum
other than the courts of the State of New Hampshire, and any
appellate court from any thereof. Each Party irrevocably and
unconditionally submits to the exclusive Jurisdiction of such
courts and agrees to bring any such action, litigation or
proceeding only in courts sitting in the State of New
Hampshire. Each Party agrees that a final judgment in any
such action, litigation or proceeding is conclusive and may
be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
parties further agreed that “the laws of the State of
New Hampshire” would govern the
four months after entering into the agreement, on September
14, 2017, TSN's counsel sent Hiram Lodge a letter
purporting to terminate it “for cause, effective
immediately, and indicating that TSN did not intend to meet
its outstanding obligations pursuant to the
Agreement.” Hiram Lodge alleges that this letter
failed to comply with the agreement's terms, which
provided Hiram Lodge a 300-day opportunity to cure any breach
alleged by TSN. In the meantime, Hiram Lodge alleges,
TSN used Hiram Lodge's confidential and proprietary
information -- learned under the terms of the agreement -- to