Lewis v. Google Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 19-cv-2387-WJM-KLM

BOB LEWIS,

Plaintiff,

v.

GOOGLE, INC., a Delaware Corporation, and

YOUTUBE, LLC, a Delaware Corporation,

Defendants.

ORDER GRANTING MOTION TO TRANSFER

Plaintiff Bob Lewis (“Plaintiff”) sues Google, Inc., and YouTube, LLC (together,

“Defendants”) for various causes of action arising from YouTube’s alleged

discrimination against Plaintiff, “specifically by arbitrarily and maliciously demonetizing

[his] videos, algorithmic limiting the discovery of LEWIS’ channel and videos on their

platform, and deleting [his] YouTube channel, Misandry Today.” (ECF No. 19 ¶ 1.)

Before the Court is Defendants’ Motion to Transfer Venue. (ECF No. 29.)

Defendants ask the Court to transfer this case to the United States District Court for the

Northern District of California. For the reasons explained below, Defendant’s motion is

granted

I. BACKGROUND

The currently operative complaint is Plaintiff’s Second Amended Complaint (ECF

No. 19), which incorporates exhibits filed with Plaintiff’s original complaint (ECF No. 1).

The Second Amended Complaint makes numerous attacks on YouTube’s Terms of

Service. (See, e.g., ECF No. 19 ¶¶ 81–84, 89, 116, 201.) Exhibit S to the original

complaint is a PDF rendering of those Terms of Service. (ECF No. 1-19.) The Terms of

Service state, among other things, that “[a]ny claim or dispute between you and

YouTube that arises in whole or in part from the Service shall be decided exclusively by

a court of competent jurisdiction located in Santa Clara County, California.” (Id. § 14.)

The Court will refer to this as the “Forum Selection Clause.”

II. LEGAL STANDARD

“For the convenience of parties and witnesses, in the interest of justice, a district

court may transfer any civil action to any other district or division where it might have

been brought.” 28 U.S.C. § 1404(a). Normally, the party moving to transfer a case

pursuant to § 1404(a) bears the burden of establishing that the existing forum is

inconvenient. See Chrysler Credit Corp. v. Cnty. Chrysler, Inc., 928 F.2d 1509, 1515

(10th Cir. 1991). Moreover, “[i]n the typical case not involving a forum-selection clause,

a district court considering a § 1404(a) motion (or a forum non conveniens motion) must

evaluate both the convenience of the parties and various public-interest considerations.”

Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 62 (2013)

(“Atlantic Marine”); see also Chrysler Credit Corp., 928 F.2d at 1516 (setting out factors

courts consider in “an individualized, case-by-case consideration of convenience and

fairness” (internal quotation marks omitted)). “Ordinarily, the district court would weigh

the relevant factors and decide whether, on balance, a transfer would serve ‘the

convenience of parties and witnesses’ and otherwise promote ‘the interest of justice.’”

Atlantic Marine, 571 U.S. at 62–63 (quoting § 1404(a)).

The calculus changes, however, when the parties have a contract containing a

valid forum-selection clause, which “represents the parties’ agreement as to the most

proper forum.” Id. (internal quotation marks omitted). “[A] valid forum-selection clause

should be given controlling weight in all but the most exceptional cases.” Id. (certain

alterations incorporated; internal quotation marks omitted). As relevant here, the

Supreme Court holds that “[t]he presence of a valid forum-selection clause requires

district courts to adjust their usual § 1404(a) analysis” in two ways:

First, the plaintiff’s choice of forum merits no weight. Rather,

as the party defying the forum-selection clause, the plaintiff

bears the burden of establishing that transfer to the forum for

which the parties bargained is unwarranted. . . .

Second, a court evaluating a defendant’s § 1404(a) motion

to transfer based on a forum-selection clause should not

consider arguments about the parties’ private interests.

When parties agree to a forum-selection clause, they waive

the right to challenge the preselected forum as inconvenient

or less convenient for themselves or their witnesses, or for

their pursuit of the litigation. A court accordingly must deem

the private-interest factors to weigh entirely in favor of the

preselected forum . . . . [¶] As a consequence, a district court

may consider arguments about public-interest factors only.

Because those factors will rarely defeat a transfer motion,

the practical result is that forum-selection clauses should

control except in unusual cases.

Id. at 63–64 (internal quotation marks and citations omitted).

III. ANALYSIS

A. Validity of the Forum Selection Clause

The Court’s analysis—whether to apply the standard § 1404(a) factors and

burdens, or to apply the factors and burdens required under Atlantic Marine—turns on

whether the Forum Selection Clause is valid. Plaintiff makes numerous attacks on the

Terms of Service generally. (See ECF No. 33-1.) The question, however, is whether

the Forum Selection Clause (not the contract as a whole) is valid. Bowers v. Tension

Int’l, Inc., 2016 WL 3181312, at *3 (D. Colo. June 8, 2016). Plaintiff’s only attack that

comes somewhat close to an attack on the Forum Selection Clause is to point out

another part of the Terms of Service which says that “YouTube may, in its sole

discretion, modify or revise these Terms of Service and policies at any time, and you

agree to be bound by such modifications or revisions” even if YouTube does not provide

notice. (ECF No. 1-19 § 1(B).) Plaintiff labels this “unfair surprise.” (ECF No. 33 at 7.)

Unfair surprise is a reference to one of seven factors that Colorado courts

frequently examine when a party seeks to avoid a contract on unconscionability

grounds:

Courts consider several factors in determining

unconscionability, including: (1) the use of a standardized

agreement executed by parties of unequal bargaining power;

(2) the lack of an opportunity for the customer to read or

become familiar with the document before signing it; (3) the

use of fine print in the portion of the contract containing the

provision in question; (4) the absence of evidence that the

provision was commercially reasonable or should reasonably

have been anticipated; (5) the terms of the contract,

including substantive fairness; (6) the relationship of the

parties, including factors of assent, unfair surprise, and

notice; and (7) the circumstances surrounding the formation

of the contract, including setting, purpose, and effect.

Lincoln Gen. Ins. Co. v. Bailey, 224 P.3d 336, 341 (Colo. App. 2009), aff’d, 255 P.3d

1039 (Colo. 2011).1 However, Plaintiff nowhere explains how he has been unfairly

surprised by the Forum Selection Clause, nor how any of the other unconscionability

factors apply to the Forum Selection Clause.

1 The Terms of Service specify that they will be governed by California law. (ECF No.

1-19 § 14.) Because Plaintiff argues for unconscionability under Colorado law, and because

those arguments fail, the Court need not decide whether the outcome would be different under

California law.

Accordingly, Plaintiff has failed to cast any doubt on the validity of the Forum

Selection Clause, and so the Atlantic Marine analysis applies here.

B. Application of Atlantic Marine Analysis

Plaintiff has the burden to demonstrate that the public-interest factors of the

§ 1404(a) balancing test weigh in his favor. Atlantic Marine, 571 U.S. at 63–64.

“Public-interest factors may include the administrative difficulties flowing from court

congestion; the local interest in having localized controversies decided at home; and the

interest in having the trial of a diversity case in a forum that is at home with the law.” Id.

at 63 n.6 (internal quotation marks omitted; alterations incorporated).

Plaintiff makes no argument under these factors or anything similar. Plaintiff

instead hangs his whole argument on two premises: (1) the Terms of Service (not the

Forum Selection Clause specifically) are invalid (ECF No. 33 at 5–9), and

(2) Defendants have not met their burden to justify transfer, particularly in light of the

private-interest factors (id. at 2–5). Again, however, the Forum Selection Clause is valid

and so it is Plaintiff’s burden to show why the public-interest factors weigh against

transfer. Plaintiff’s failure to offer even an alternative argument in this regard means

Plaintiff has per se failed to satisfy his burden.

To repeat, “forum-selection clauses should control except in unusual cases.”

Atlantic Marine, 571 U.S. at 64. Plaintiff has failed to show why this is an unusual case.

Transfer to the jurisdiction selected by the Forum Selection Clause is therefore

appropriate.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Defendants’ Motion to Transfer Venue (ECF No. 29) is GRANTED;

2. In this case is TRANSFERRED to the United States District Court for the

Northern District of California, and the Clerk shall transmit the file to the Clerk of

that court; and

3. Unless and until ordered otherwise by the Northern District of California,

unexpired deadlines in this case (if any) continue to control.

Dated this day of December, 2019.

BY Foe

?

William J-Wart/nez

United States District Judge