ATI ‘Unequivocally’ Waived Removal Rights in Project Codu Case: Plaintiffs

Defendant American Tower International “clearly and unequivocally relinquished any entitlement” to remove the complaint of Terra Towers, TBS Management and DT Holdings to U.S. District Court for Southern Florida in Miami, said the plaintiffs' reply Thursday (docket 1:23-cv-20009) to ATI’s opposition to remand (see 2302170012). The plaintiffs allege ATI improperly withdrew from an $800 million Latin American telecom tower project contract called Project Codu. They want the case remanded to the 11th Judicial Circuit Court in Miami-Dade County where it originated because the parties stipulated to facts during their underlying arbitration proceedings that negate “the existence of subject matter jurisdiction in this cause.” ATI contends in a “poorly conceived argument” that the parties didn’t stipulate to any facts that waive ATI’s right to removal or that negate the court’s subject-matter jurisdiction under the New York Convention, said the plaintiffs’ reply. To properly remove the action to federal court in Miami, ATI needed to demonstrate “the subject matter of the state court complaint relates to the arbitration provisions” found within the site development agreement (SDA) among the parties’ Peruvian subsidiaries, they said. But ATI adopted “precisely the opposite legal position” during the underlying arbitration when it asserted in its February 2022 responsive pleading that Project Codu didn’t arise out of or relate to the SDA, they said. Having asserted that contention in the underlying arbitration, ATI clearly and unequivocally disclaimed its removal rights under the New York Convention, they said. ATI would have the court “subscribe to the tenuous proposition that no waiver occurred because it did not utter” the precise words of a waiver, they said. For “obvious reasons,” the court “should reject this specious contention,” they said.