ENSCO International, Inc. v. Certain Underwriters at Lloyd's

INTERNATIONAL, ENSCO

INCORPORATED,

Plaintiff-Appellee, AT

CERTAIN UNDERWRITERS Companies and Insurance

LLOYD’S

Subscribing Policy Numbers PE0500247,

Cover Notes

LDC070105(B), LCD070105(A), and

B0621ELOEN0105; BC Asso Johnson Johnson,

ciates, LLC; Bryan De

fendants-Appellants.

No. 08-10451. Appeals,

United States Court of

Fifth Circuit.

Aug. (argued),

David Wallace Holman Hol- Firm, PC, Maloney, man Law Michael J. Maloney, Associates, Houston, Martin & TX, Plaintiff-Appellee. for Makowski, Joseph Royston Chester Rayzor, (argued), Harold K. Watson Chris- Dove, Locke, Benjamin Lord, topher Bis- L.L.P., Liddell, Houston, TX, sell & Defendants-Appellants.

443 the The Underwriters removed matter court, asserting rights federal removal to the on the Recognition under OWEN, JOLLY, SMITH and Before Foreign and Enforcement Arbitral Judges. Circuit (the “Convention”). Awards See 9 U.S.C. remand, § 205.1 moved to ENSCO assert- SMITH, Judge: JERRY E. Circuit clause, by that forum ing the selection dispute over This case arises from establishing jurisdiction, “exclusive” effect- (the “Policies”) by policies insurance issued right ed a waiver of the to remove. The (collectively, the the defendants “Under- motion, granted district court and the writers”) Internation- plaintiff ENSCO appeal. Underwriters (“ENSCO”). al, Inc. The sole issue is Policies contain waiver whether the II. Analysis. case to federal right to remove the waiver, Concluding is a court. that there appeal hinges This on construction of of re- affirm the district court’s order we the Policies’ forum selection clause. We mand. first, consider the relevant for standard waiver, second, and that application of Background

I. standard. Katrina, an During Hurricane offshore rig by and insured drilling owned ENSCO A. The McDermott Standard. sustained serious

by pre “For a contractual clause to damage. paid for The Underwriters party exercising vent a its rig for total loss of the but not constructive removal, the clause must a ‘clear and rig fell removal of debris from unequivocal’ right.” City waiver of that platform near a owned to the sea floor Inc., Servs., v. Mun. New Orleans Admin. ENSCO, asserting that company. another (5th Cir.2004). 501, 504 The New removal, Policies covered that sued court cited McDermott Interna Orleans in Dallas state tional, Underwriters, Lloyds Inc. v. 944 County, with the Policies’ forum consistent (5th Cir.1991), very few F.2d one (titled of Law & selection clause “Choice addressing federal cases removal Jurisdiction”), provides, proper which “The Convention, under the for clear- rights law of insurance shall be and exclusive this and-unequivocal Id.2 are standard. There Any disputes arising law. under or Texas ways may clearly a party three which subject it in connection with shall be unequivocally rights: waive Dal- and its of the Courts of exclusive so, by explicitly stating it is County, doing “[1] las Texas.” adopts parties disagree the forum law as to whether the Con selection clause Texas applies, we not decide that. proper vention need law "[t]he and exclusive of this ap evidently it insurance,” The district court assumed argues party neither ENSCO, plies. which contends in a footnote applicability court should consider the of the apply, cites its own does not Act, Texas Arbitration Tex. Civ. Prac. & Rem. ade motion remand has therefore not seq. § 171.001 et Code quately the issue. See United States briefed Jackson, (5th Cir.2008) n. 6 Co., Also in Suter v. Munich Reinsurance (stating "[a]rgument by reference is not (3d Cir.2000), the court Collins, (citing permitted”) Yohey v. support its cited McDermott as for "clear 1993)), petition cert. Cir. 224-25 unambiguous language” standard. 08-8714). (Feb. 12, 2009) (No. Although filed ^[2] by allowing the other party “explicit” “express” explaining choose venue, or ^[3] by establishing an waiver standard. Because all waivers that the contract.” venue within do not use the term “remove” exclusive “waive” or Orleans, by “implicit,” are 376 F.3d at 504. definition the Underwrit- say, ers there is no waiver here.3 however, claim,

The Underwriters that McDermott only under the first those The McDermott court’s choice of applicable in methods the Convention not terms bear the that the weight does effect, they In a propose “magic context. apply. Contrary to the Un McDer- approach to The words” waiver. reading, actually derwriters’ the court for court, however, mott never stated that it its ways, mulated waiver test in several reject purported that would waivers do not a number of using phrases. terms and specific incant the the fact, words that Under- the McDermott court the terms used claim required. writers are The Under- “express,” “explicit,” and “unambiguous,” rely reading writers instead on a literal unequivocal” “clear and inter almost the McDermott court’s use of the words words, course, changeably.4 These argument, McDermott, oral "express 3. At the Underwriters took rule as an waiver rule.” argument logical to its conclusion: at 944 F.2d Q: Well, Second, suppose you explaining "precedent” contract when had a that that agree "And we supported holding, said: that there shall be no its the McDermott court litigation "[ejven in this matter that shall occur that observed do not cases that else, ever, else, anywhere anywhere except FSIA, many involve Convention or the County”? the state courts of Dallas federal courts have contrac- refused to find a suffice, your A: I don’t think that would rights tual waiver of removal a clear absent is, problem Honor.... it [T]he doesn't call unequivocal’ expression and of intent parties' they attention to what are do- rights.” particu- waive those Id. at 1212. In ing. lar, explained City City it Rose Co., (5th Nutmeg Insurance 931 F.2d 13 Cir. opinion 4. One section of the McDermott 1991), a non-Convention case that we discuss Rule,” Express "The titled Waiver but two infra, length "conceptually was consistent section, paragraphs into that the court said ” ‘unequivocal expression with the rule.’ "we will explicit effect waiv- McDermott, 944 F.2d at The 1212-13. McDermott, ers.” 944 F.2d at 1209. It then court, words, McDermott in other used cases adopting twice that express stated it was "the discussing the unequivocal” "clear and stan- waiver rule." Id. (or support express explicit) dard as for its The McDermott court also mentioned the waiver standard. First, unequivocal” and "clear standard. it language The Third Circuit’s in Suter is holding Foreign referred to courts Sover- similar. That court used the terms "clear and ("FSIA”) eign Immunities Act cases are to be unambiguous” "express” interchangeably and parties "in federal tried court unless the un- describing waiver of removal in Conven- equivocally choose Id. at otherwise.” Suter, Co., tion cases. See (citing In re Delta Am. Re Ins. (‘‘[T]here can be Cir.1990)). no waiver to re- The court then said that move under Convention Act the ab- reasoning persuasive it "this appli- found and unambiguous language sence of clear and re- cable Convention Act cases.” Id. The ("[A]n waiver[.]”); quiring though, such id. at "explicit” Delta used the terms express requirement "unequivocal” interchangeably. will serve the var- Com- Delta, Act[.]”); pare purposes ("Against ious of the id. at 893 Convention FSIA, ("Our backdrop however, adoption principle unambigu- of the of the ‘clear and unequivocal language’ supported that waiver must be ous clear and standard is ... also McDermott, greater significance.”); assumes even ... [McDermott]. [In with id. the Fifth (“[W]e at 894 hold that express-waiver claimed waiver of found that an Circuit] rule stemming of removal goals reciproc- contrac- served Act’s explicit.”). uniformity, tual ity, speed must be The and was consistent McDermott court precedent.”). later referred to the Delta with circuit required them If the McDermott things, and none of mean different to “waiver” and “remov- actual reference reading that Underwrit- demands al,” analysis of the McDermott con- the McDermott To understand urge.5 ers straightforward: been tract have standard, we must therefore consider merely court could decided and a reasoning, court’s actual McDermott present, no such reference was because shows that reading of McDermott close But the was no waiver. there the standard misunderstand so; contrary, quite to the court did do must be Although waiver it articulates. analysis by observing began it implicit unequivocal, be clear “[wjhen ap- clause policy’s service-of-suit all con- give effect to necessary to where the probable its effect is to waive plies, provisions. tractual rights.” removal Id. at 1204-05 insurer’s 15-16). Nutmeg, F.2d at The (citing Contract. 1. The McDermott words, court, in other holding is not precise McDermott’s accepting a based have considered contain removal waivers must used in ground on the second New Or- claim, words, leans, the Underwriters magic as the a notwithstanding fact that such implicit. language waiver would have been merely following the but of suit clause” the contract’s “service contract, however, aspects of the Other the of re- to waive was insufficient McDermott court that persuaded particular of to federal court moval clause did not in fact consti- service-of-suit ap- a waiver and that the contract’s being tute litigated: question consistency with the New parent second in the of agreed that event It is illusory. venue basis was The Orleans pay of hereon failure Underwriters in McDermott was venue for “dis- question to be hereun- any amount claimed due to de- concerning proper forum putes hereon, the re- der, at 1205. arbitrability questions.” cide Id. will to the of the Assured submit quest was not question, though, That covered competent of any of court jurisdiction by a only by the clause but service-of-suit and within the United States jurisdiction forum “co-equal selection potentially requirements neces- comply with all will governing venue arbitration. clause” jurisdiction and give sary such Court The McDermott contract was therefore shall be arising all matters hereunder clause ambiguous, and service-of-suit law with the determined accordance question. not answer the venue Id. did court. practice and of such that the service- The court also observed (citations McDermott, 944 F.2d at 1200 clause read a waiver of of-suit could be omitted). it al- provision That only, leav- jurisdiction therefore personal —because superfi- party one to select lowed re- possibility subsequent ing open venue— with cially appears the second consistent reasoned as follows: moval.6 waiver, bases for the three Orleans re- exercise its federal Underwriters’ necessarily is not inconsis- explicit. moval it is not words); "mechanically any particular year sitting recite” en banc more than 5. This C.J., decided, J., Clark, id. (Smith, joined by ''ex- was held that at 1222 before McDermott Williams, Kelly Gee, Johnson, “implied.'' v. Lee’s press1' Jolly, can mean See Barks- Inc., Hamburgers, JJ., (“[T]he dale, Old Fashioned majority dissenting) en banc curiam) (en (5th Cir.1990) (per 'express’ means 'im- ... has declared that banc) Rule of (concluding that the Federal ”). plied.' 54(b) "express determina- Procedure Civil jurisdiction is of value personal “Consent whenever “the district tion” rule is satisfied respect to that are especially with defendants discernable unmistakable intent” is court's principal place of incorporated their and have court therefore need and that district obligations only single with of its under the contract had tent forum selection reading: clause clause. service-of-suit [W]e, your submitting agree remove a case request after to submit to jurisdiction Compe- Court jurisdiction of Louisiana’s courts and tent within the United complying necessary require- with all comply require- States and will with all give power ments to Louisiana’s courts ju- ments necessary to such Court over suit. There would be no final arising risdiction and all matters here- decision that court for Underwriters under shall be determined in accordance by if to abide it exercised with the law practice of such court. All right. matters would be determined Nutmeg, language, F.2d at 14. That practice accordance with the and law course, also resembles the second of the of the court chosen McDermott in the three New Orleans bases for waiver of state sense all courts follow the removal, but it neither “explicit” nor by Congress. removal law established “express.” The McDermott court—if it Id. at Not was the McDermott adopted rule the Underwrit- ambiguous contract’s service-of-suit clause easily urge distinguished ers have —could venue, respect with to but the venue se- Nutmeg just by pointing this out and ex- in accordance with it lected would not be that an plaining although implied waiver exclusive. adequate Nutmeg, was in it could never be short, In merely instead of relying on enough in the context the Convention. of explicit contract’s lack references to Instead, the court that al- demonstrated venue, waiver and the McDermott court though the Nutmeg contract unambig- was showed, detail, in great that the contract uous, the contract was McDermott not. plainly did not set venue at all and could The McDermott permit in fact invocation of federal removal pointed that Nutmeg out decision re- from a state venue. The Underwriters’ partly sulted from the rule that contracts proposed rule would treat that discussion are to be construed against the drafter and evident, nonetheless, redundant. It that inapplicable rule was to the that the McDermott court found no waiv- McDermott contract.8 The McDermott er—not because the other bases court also observed Nutmeg that the con- later out in set New Orleans inappli- were tract a single relevant pro- venue cable, they but because were satisfied.7 vision potentially instead two conflicting ones. suggested only Id. McDermott one Nutmeg.

2. McDermott and way in which the Convention affected The court McDermott then considered waiver of removal rights: The Convention rejected analogy an to Nutmeg —a applies agreements to arbitration and arbi- involving case not the Convention—in tration involving awards United States citi- which similar provision contractual was zens foreign and at least one citizen. That deemed waive removal. The Nutmeg was in the case McDermott.9 In McDer- McDermott, business abroad.” parties F.2d at 8. application have not briefed the & 1205-06 n. 10. Because the underwriters present of that rule case. description, in McDermott fit that the court interpretation especially likely. found McDermott, ("The 9. See par- recognize ties suit an concerns arbi- interpretation 7. This of McDermott is consis- agreement entirely tration and is not between Browning-Ferris with tent tries, Waters v. Indus- citizens, Inc., (5th United so the States Convention Act 797-98 Cir. 2001). difficult, given McDemott court’s

mott, explained above—the though —as imagine panel’s coming approach, made defendants of international presence pre- if it had explanation more same conclusion been to the personal as, e.g., language & n. with such “Un- Id. at 1205-06 sented plausible. domestic, hereon, request at the parties were derwriters Nutmeg, all juris- to the likely less the exclusive seemed Assured will submit to therefore parties would competent jurisdic- court that McDermott court diction objections per- waived us specifically tion.” Nor McDemott does at 1207. Thus See id. jurisdiction. sonal think that waiver rule would reason to gave of the applicability ways render contractual be applied court another reason the McDemott meaningless. terms ambiguity.10 Though McDermott find interpreting McDemott re- No decision many ways, distinguished Nutmeg contrary urged by quires the conclusion affected that the Convention it never said Weyler, In Beiser v. the Underwriters. the waiver standard.11 Cir.2002), the court contrac- that neither the Having shown explained: estab- w]e “[In to in- analogy nor an language itself tual a clear rule for waivers of lished statement other terpretations of similar A party litigant’s rights under a conclusion that compelled eases to remove may only waive his under waived, the McDemott rights had been by clearly explicitly [Convention] had “exe- parties that the court concluded agreement.” That lan- saying so disa- ambiguous contract and cuted an unambiguous support though, is not guage, regarding intent any expressed vowed A for “clear position. the Underwriters’ rights,” removal of Convention wavier does not mean the same statement rule” Id. at that waiver existed. meaning no “explicit as an statement rule.” thing If the McDermott contract had 1209. Beiser, rate, not involve an at did parties to it unambiguous, or if the been rule, of the McDermott so the application waive expressed intent somehow language is at dictum. Nor quoted best rights, presumably the court removal it explain Beiser court what means did the despite a would have found waiver explicit.” for to be “clear and a waiver lack of applicability Convention’s Moreover, the New court made Orleans magic words. distinguish approach its no effort Interpretations McDemott. S. McDemott’s-, of New Or- waiver special a above, gave court no indication of the two leans the law described Given requirement applies clear-and-unequivocal explicit waiver implicit for bases only in Convention cases. McDermott’s in the New Orleans formulation waiver does, of waiver in the Convention con- explicit discussion work as well as basis indistinguishable from It text almost involving the Convention. seems even in cases fact, case.”) opinion, the McDermott governs (citing 9 11. Later its this U.S.C. act). 1212-13, implementation part the Convention’s of marshaled Nut- "unequivocal expres- meg support for the ("The of alter id. at 1206-07 existence See Nutmeg ground that the sion rule” on meanings possible nate service-of-suit be unam- found the contract before it to distinguishes policy in the here at issue clause biguous. Orleans, Nutmeg.”). at 504- In New F.3d adopted interpretation of the court this Nutmeg. of explanation Application. forum selec- B. tion in New Orleans. The question whether the Policies meet jurisdiction

A party’s consent to in one the McDermott waiver is proper- standard necessarily forum not does waive ly unequiv- answered under the “clear and right to an have action heard another. explicated ocal” in New test Orleans. We For a forum clause to be selection exclu- Policies, by any consider whether the sive, it go beyond establishing must the means the New Orleans court men- jurisdiction a particular forum will have tioned, necessarily continued exclude exer- clearly and must par- demonstrate the rights. cise The Underwriters jurisdiction ties’ intent make that ex- conceded, effectively in their briefs clusive. argument, rejection and at oral our Orleans, New proposed interpretation their McDer- mott disposes appeal. of their Orleans, then, explains why McDermott contract was not deemed The third New Orleans basis for fact, waiver. the McDermott court specification juris waiver—contractual very could have it used when way “clearly diction in a demonstrates explained that the forum selection clause parties’ intent to make that interpreted personal was waiver exclusive”—is one that relevant jurisdiction. The McDermott contract al- Orleans, here. New 376 F.3d at 504. The venue, lowed McDermott to not select forum Policies’ selection clause fixes “ex venue; an exclusive explains New Orleans litigation clusive” venue for in “the Courts provision such venue-selection County, This, of Dallas Texas.” prima case, not be sufficient as a waiver in facie, satisfies New It Orleans.12 is far Convention or not. more provision definite than was the con It follows that pro- the Underwriters’ strued McDermott. Removal posed heightened standard for Convention be party’s “submit[ting] inconsistent with a removal has no basis in law. jurisdiction” McDermott of state or with permits by waiver ex- being means other than all matters decided in accordance press waiver, and the New three- Orleans with state court practice,” “law and see part synthesis, accurately McDermott, which incorpo- 1206, 944 F.2d at but it is standard, rates the McDermott in applies a inconsistent with situation in which the the context of the Convention. County state courts in Dallas would have Paolino, Argyll Equities 12. In v. government, LLC 211 Fed. though the federal located in 317, (5th Cir.2006), Appx. 318 this court cor- particular regions. geographic By agreeing rectly stated a providing contract litigate disputes solely all relevant in “the "[bjorrower hereby consents to the exclusive Texas,” Courts of TSE waived its sitting of the courts in Kendall removal. Texas, County, United States of America” is Int’l, Inc., 396, Dixon v. TSE 398 unambiguous an waiver. Contractual refer- (5th Cir.2003) curiam) (footnote (per omit- particular ences to the county courts of a are ted). Excell, Sterling See also v. Inc. Boiler & courts, hap- to state not to federal courts that Inc., Mech., 318, (10th Cir.1997) 321 pen to sit there. ("Because language of clause refers Texas, Federal district courts be in only specific county specific to a and not to they are not Texas. Law of Black’s Dictio- district, judicial we conclude venue is intend- nary "denoting defines "of” as that from court.”); ed to lie in state district Ondo- anything proceeds; indicating origin, which source, Indus., Inc., va Ltd. Co. v. Manila 513 indisput- descent.” Federal courts 762, (N.D.Tex.2007). F.Supp.2d 773 from, in, ably proceed origin and find their join Judge great respect, I do not party With No has jurisdiction. “exclusive” heavily opinion because relies on think, Smith’s no we see reason suggested, and in Or- City this court’s decision a waiv- could be language Policies’ that the of Municipal Ser- Administrative leans short, In jurisdiction only. personal er of Inc.,1 vices., removal un- which concerned would read the word permitting § 1441. Our decision in der 28 U.S.C. contract.13 out of the “exclusive” International, Lloyds Inc. v. McDermott in provisions Nor, unlike the contract remov- London2 examined Underwriters of McDermott, of the Pol- provisions other do 205, § al and we should under U.S.C. plain directive compromise icies binding precedent. to that adhere McDermott, In we clause. forum selection This court said McDermott litigation governed could be that the found to remove under coequal independent of two by either “explicit.”4 The Su “express”3 must be or at 1204-06. clauses. Id. forum selection has preme Court since had occasion to Policies, an though, contain arbitration The meaning “explicit” in C consider the & setting London and the provision venue L Inc. v. Band Pota Enterprises, Citizen setting clause venue forum selection Indian Tribe Okla.5 The issue watomi County.14 The Underwriters have Dallas in that was whether an Indian Tribe case con- provisions these suggested sovereign immunity by waived flict, analogous provisions as did an agreeing to a contract with arbitration there is no am- Where such McDermott. agreement provided for enforcement analysis court’s biguity, “'in arbitration award accordance jurisdic- “exclusive permits the Policies’ ju applicable having with law in says. what it tion” mean contract risdiction thereof.’”6 The also their have waived The Underwriters provision that a choice-of-law se contained right to remove. The order remand of the where the place lected “the law AFFIRMED. located,” which was Oklahoma.7 Project Supreme Court reasoned that vir

OWEN, Judge, concurring: Circuit parties “the provisions, ha[d] tue of these confirmation effectively of the consented to only. I judgment concur in the Suter, (adopting an "ex- which inter Id. " rule”). press waiver 'clear unam changeably referred to an "ex biguous language’ standard” and to ("There why are four reasons we 4. Id. at 1209 press requirement,” the Third Circuit waiver explicit give waivers of will effect “resolv[e] explained that it would ambi (find- rights.”); Act removal 1212 language against waiver.” guity in contract reasoning ing "persuasive” that a waiver "express Regardless Suter's references waiver,” rights Foreign under the Sover- of removal apparently no recom court has Act, 1441(d), § eign Immunity 28 U.S.C. must unambiguous disregarding contractu mended " ”) 'explicit' (quoting Delta America magic be In re they merely lack al terms because Co., 890, (6th 1990)). Cir. Re Ins. 894 words. 411, 418, 149 5. 121 S.Ct. 532 U.S. way to of—and 14. is the best make sense That (2001) ("The question presented 623 L.Ed.2d clause's effect to—the forum selection is the Tribe has waived its immuni- "disputes arising whether under or in reference to ty.”). with” the Policies. connection (5th Cir.2004). Id. at 419. 1. F.3d 501 376 6. (5th 1991). 7. Id. Cir.

2. 944 F.2d 1199 ‘in award accordance with’ the Our imposes Oklahoma decision McDermott no Act,”8 Uniform Arbitration which turn such am requirement, and I unaware of “jurisdiction to provided that enforce the any decisions to so construe 9 U.S.C. ‘any agreement compe- case, § vests in court of present the statement ”9 jurisdiction tent of this state.’ The Su- agreements in the between ENSCO and preme Court concluded that sen- “[o]n disputes “shall be Act, reading sible the District Court subject jurisdiction to the exclusive County, gen- Oklahoma local court of County, explicit Courts of Dallas is Texas” jurisdiction, statutory eral fits that de- express. or The use of the word “exclu- scription.”10 The thus Court held that the It solely sive” well-understood. means sovereign immunity. tribe had waived No in County Dallas courts or to the exclusion question of removal was raised may jurisdiction. of other courts that case, but the decision’s rationale is instruc- accordingly I agree that the Underwrit- tive. remove, waived the right ers and the Judge Jolly’s opinion As dissenting district court’s decision to remand should out, points pertinent question LC & disturbed. be Enterprises determining for whether the JOLLY, E. GRADY relinquished Judge,

tribe had Circuit sovereign immunity dissenting: was whether “tribe’s waiver [was] ”11 However, ‘clear.’ in answering that Owen, Judge Like I that Judge believe question, Supreme quoted Court opinion mistakenly Smith’s relies upon Sokaogon Seventh Circuit’s decision in City Municipal New Orleans v. Admin- Gaming Enterprise Corp. v. Tushie-Mont Services., Inc., istrative Associates, Inc.,12 gomery stating that the Cir.2004), a case which considered removal following passage from that decision was a pursuant § to 28 U.S.C. The Under- “cogent observation holds well [that] pursuant writers removed this action the case we confront”13: “The im [tribal § U.S.C. and the removal af- munity] implicit ... waiver rather than forded therein cannot be waived any- explicit only if a of sovereign waiver immu thing express less than an statement of nity, to be explicit, deemed must use the Int’l, waiver. Lloyds Inc. v. ‘sovereign immunity.’ words No case has London, ever held that.”14 I apply the same (5th Cir.1991). however, disagree, I reasoning regarding to remove with Judge Owen’s conclusion the ex- under U.S.C. 205. clusive clause at issue here

I effective, would not demand that express to be constitutes an waiver of removal rights waiver of rights. under 9 Purporting apply U.S.C. this Court’s § 205 must standard, contain the word express “remove” or suggests she or a “removal” reference to the statute. be implicitly express. I re- Cir.1996). (7th 8. Id. 12. 86 F.3d 656 419-20, 9. at Id. 121 S.Ct. 1589. Enters., Inc., 420, 13. C & L 532 U.S. at 121 S.Ct. 1589. 420, 10. at Id. 121 S.Ct. 1589. 418, (citing 11. Id. at 121 S.Ct. 1589 Okla 418, (quoting at Id. 121 S.Ct. 1589 Sokao- homa Tax Comm'n v. Band Potawato Citizen 659-60). gon, 86 F.3d 505, 509, of Okla., mi Tube 498 U.S. 111 S.Ct. 905, (1991)). 112 L.Ed.2d 1112

451 added). 1209, 1211, Look- (emphases 1213 the failure of both spectfully dissent Orleans, our apply prec- ignores he Judges ing City and Owen Smith § in McDermott. edent 1441 differences between and important § 205. I. today majority panel correctly A our and Recognition on the The Convention analysis City concludes that the Newof Awards Foreign Arbitral Enforcement of general limited to removal un- Orleans is (9 205) § right a removal U.S.C. provides § binding. der 1441. McDermott is substantially than the one broader is (28 in the removal statute general found 1441). II. v. § See Acosta Master

U.S.C. Inc., and Const. Maintenance standard appropriate With the estab- (5th Cir.2006); 373, Wey- v. 376-77 Beiser lished, question remains whether the Cir.2002). ler, 665, This 674 expressly waived their by § 205 consistent with the low bar set to removal. The Underwriters consented of the Convention. See Scherk policy goals the exclusive of the Courts Co., 506, 520 n. 417 U.S. v. Alberto-Culver County. One can from this of Dallas infer (1974) 2449, 41 270 L.Ed.2d S.Ct. have waived their of unified stan- importance (noting federal court. remove to Under of arbi- and consistent enforcement dards analysis, give we normal contract McDermott, 944 F.2d agreements); tration to this waiver. But under the ex- effect of reci- (noting importance at 1209-11 rule, an inferred waiver is not press waiver procity). sufficient. policy with these concerns accord rights, removal grant 205’s extensive immunity Judge The tribal cases Owen only will rights of these removal a waiver substantially relevant in relies on are not express explicit. if it is enforced be policy Act context.1 The the Convention McDermott, F.2d at 1209-13. See underlying immunity favor concerns tribal around Judge attempts to maneuver Smith immunity. Sokaogon Gaming waiver McDermott, clearly repeatedly Tushie-Montgomery As- Corp. Enter. are inescapable: “There holding stated (7th Cir.1996). socs., 659-60 effect why we will four reasons underlying concerns the Con- policy re- of Convention Act explicit waivers however, Act, waiver of vention disfavor adopt express rights”; moval “we rights. pro- rule to afford maximum waiver here McDermott, Judge Reavley, in noted rely all who on Con- tection to those “bright-line express that under vention”; express waiver rule mini- “[o]ur rule,” long- Act no Convention cases would by providing bright- danger mizes this time-consuming by fo- bogged er be down determining parties when line standard McDermott, 944 disputes. rum-choice panoply full surrender Reavley’s hopes and Judge F.2d at 1213. “[fjuture choice dis- forum rights”; Act espoused ruled he bright-line will languish cases putes in Convention majori- holding of dimmed been bright-line express court under our McDermott, ty- waiver rule.” 411, 417, 121 S.Ct. dard. U.S. Enterprises, L Inc. v. Band In C & Citizen Oklahoma, (2001). Indian Tribe Potawatomi L.Ed.2d 623 Supreme applied a waiver stan- "clear” Court

III. above,

For the reasons stated I would

not remand this case to court. state Ac- I

cordingly, respectfully dissent. America,

UNITED STATES

Plaintiff-Appellee, Anthony CLARO,

John Defendant-

Appellant.

No. 07-20732. Appeals,

United States Court of

Fifth Circuit.

Aug.

Case Details

Case Name: ENSCO International, Inc. v. Certain Underwriters at Lloyd's

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 12, 2009

Citation: 579 F.3d 442

Docket Number: 08-10451

Court Abbreviation: 5th Cir.