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Blusky Restoration Contractors, LLC v. Whitman-Greenhill, LLC

United States District Court, D. Colorado

August 10, 2018

BLUSKY RESTORATION CONTRACTORS, LLC, Plaintiff,
v.
WHITMAN-GREENHILL, LLC, Defendant.

          Robert E. Blackburn Judge

          ORDER OF REMAND

          ROBERT E. BLACKBURN UNITED STATES DISTRICT JUDGE

         This matter is before me on the Plaintiff's Motion for Remand [#12][1] filed April 9, 2018');">18. The defendant filed a response [#18');">18], and the plaintiff filed a reply [#23]. I grant the motion.

         I. JURISDICTION

         Putatively, I have subject matter jurisdiction under 28 U.S.C. § 1332 (diversity of citizenship).

         II. STANDARD OF REVIEW

         Under 28 U.S.C. § 14');">44');">41(a), an action filed in state court may be removed to federal district court if the action is one over which the district court would have had original jurisdiction. Title 28 U.S.C. § 14');">44');">47 provides for post-removal procedures, including procedures applicable to a motion for remand to state court. When the basis of removal allegedly is diversity of citizenship, the parties must be completely diverse and the amount in controversy must exceed $75');">5, 000, exclusive of interest, costs, and attorney's fees. See 28 U.S.C. § 1332. The party invoking diversity jurisdiction bears the burden of proving the existence of compete diversity by the preponderance of the evidence. See Middleton v . Stephenson, 74');">49 F.3d 1197, 1200 (10th Cir. 2014');">4). Complete diversity means each plaintiff must be diverse from each defendant. Newman-Green, Inc. v. Alfonzo - Larrain, 4');">490 U.S. 826, 829 & n. 1(1989).

         The issues concerning remand in this case implicate the interpretation of the interrelated provisions of three contracts between the parties. For the reasons discussed below, I find and conclude that New Jersey law is applicable. Under New Jersey law, the interpretation of the terms of a contract is “decided by the court as a matter of law unless the meaning is both unclear and dependent on conflicting testimony.” Bosshard v. Hackensack Univ. Med. Ctr., 34');">45');">5 N.J.Super. 78');">34');">45');">5 N.J.Super. 78, 92 (App.Div. 2001). The contract must be interpreted as a whole and the “terms of the contract must be given their ‘plain and ordinary meaning.'“ Nester v. O'Donnell, 301 N.J.Super. 198');">301 N.J.Super. 198, 210 (App.Div. 1997). The court should interpret contract terms “to avoid ambiguities, if the plain language of the contract permits.” Stiefel v. Bayly, Martin and Fay of Conn., Inc., 4');">42 N.J.Super. 64');">43');">24');">42 N.J.Super. 64');">43, 65');">51 (App.Div.1990).

         III. BACKGROUND

         In July 2017, the plaintiff, BluSky Restoration Contractors, LLC, contracted with Weyerhaeuser to perform remediation work on 917 homes in nine states. As part of this work, BluSky entered into a series of agreements with the defendant, Whitman-Greenhill, LLC (WG), for management and labor on some of these homes. According to BluSky, WG provided construction management services related to 376 homes in eight states. In addition, WG provided labor on a subset of those homes.

         In this suit, BluSky seeks to resolve a dispute about the amount of payments due to WG from BluSky. BluSky filed its Complaint [#4');">4] in the District Court for the Eighteenth Judicial District of the State of Colorado, also known as the District Court, Arapahoe County, Colorado. WG removed the case to this court, asserting that this federal district court has diversity jurisdiction over the case. BluSky does not dispute that the prerequisites for diversity jurisdiction are present. However, in its motion to remand [#12], BluSky contends this case must be remanded to the state district court because a forum selection clause in a contract between the parties requires the parties to resolve this dispute in the District Court, Arapahoe County, Colorado.

         BluSky and WG entered into three separate but related contracts concerning the work performed by WG for BluSky:

(1) Contract #1 - August 23, 2017 - This contract, the Consulting Services Agreement [#12-3], contains a New Jersey choice of law clause and a New Jersey forum selection clause;
(2) Contract #2 - August 25');">5, 2017 - This contract, the Subcontract Agreement [#12-4');">4], contains a Colorado choice of law clause and a ...

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