Dinallo v. Dunav Insurance Company

402 F. App'x 595

• Court: Court of Appeals for the Second Circuit
• Decided: December 1, 2010
• Docket: 09-5235-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-appellant Dunav Insurance Company (“Dunav” 1 or “defendant”) appeals from a decision and order of the United States District Court for the Southern District of New York (Cote, /.), entered November 19, 2009, granting plaintiff-appellee Eric R. Dinallo’s (“Dinallo”) motion to remand the action to state court following Dunav’s removal on the basis of diversity jurisdiction. The district court granted the remand based on its interpretation of a service of suit provision in the reinsurance agreements between Dunav and Midland Insurance Company, for which Dinallo serves as Liquidator, as waiving defendant’s right of removal. On appeal, Dunav argues that the service of suit provision is ambiguous and should be interpreted to require only its submission to personal jurisdiction, but not its waiver of removal. We assume the parties’ familiarity with the remaining facts and procedural history of this case.

As a threshold matter, this Court has appellate jurisdiction because the district court, by remanding the action to state court, has conclusively determined the issue of where the litigation should take place by interpreting a forum selection clause. See Karl Koch Erecting Co. v. N.Y. Convention Ctr. Dev. Corp., 838 F.2d 656, 658-59 (2d Cir.1988); see also Yakin v. Tyler Hill Corp., 566 F.3d 72, 75 (2d Cir.2009). We review de novo the district court’s “legal conclusion regarding remand,” Yakin, 566 F.3d at 75, and, substantially for the same reasons articulated by the district court in its well-reasoned opinion, conclude that the service of suit provision unambiguously waives Dunav’s right of removal. As the district court ruled, case law in this Circuit and in our sister Circuits amply supports this interpretation of the provision. See, e.g., Travelers Ins. Co. v. Keeling, 996 F.2d 1485, 1489-90 (2d Cir.1993); Gen. Phoenix Corp. v. Malyon, 88 F.Supp. 502, 503 (S.D.N.Y. 1949); Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1047 (11th Cir.2001); Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1216-17 (3d Cir.1991); City of Rose City v. Nutmeg Ins. Co., 931 F.2d 13, 15 (5th Cir.1991); see also McDermott Int’l, Inc. v. Lloyds Underwriters of London, 944 F.2d 1199, 1204-05 (5th Cir.1991) (“When a policy’s service-of-suit clause applies, its probable effect is to waive the insurer’s removal rights.”). Having found the service of suit provision to waive Dunav’s right of removal, we decline to reach Dinallo’s alternative grounds for affirmance.

We have considered defendant’s remaining arguments and find them to be without merit. Accordingly, for the foregoing rea sons, we AFFIRM the judgment of the district court.

1 . Defendant asserts that its correct name is Dunav Re a.d.o. and that it was improperly served as Dunav Insurance Company.