Melo v. Zumper, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ERNEST MELO, on behalf of himself

and all others similarly situated,

Plaintiff,

v. Civil No. 3:19cv621 (DJN)

ZUMPER, INC., et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Ernest Melo (“Plaintiff”), on behalf of himself and all others similarly situated,

brings this action against Zumper, Inc. (“Zumper”) and Trade House Data (“Trade House”)

(collectively, “Defendants”), alleging various violations of the Fair Credit Reporting Act

(“FCRA”), 15 U.S.C. §§ 1681, et seg. This matter comes before the Court on Zumper’s Motion

to Transfer Venue and to Stay Proceedings Pending Arbitration (ECF No. 11) and Trade House’s

Joinder in Motion to Stay Pending Arbitration (ECF No. 34). For the reasons set forth below, the

Court hereby GRANTS Zumper’s Motion to Transfer Venue and to Stay Proceedings Pending

Arbitration (ECF No. 11) and DENIES WITHOUT PREJUDICE Trade House’s Joinder in

Motion to Stay Pending Arbitration (ECF No. 34).

I. BACKGROUND

A. Factual Allegations.

Zumper is a corporation organized under Delaware law with its principal place of

business in San Francisco, California. (Affidavit of Brian Coyne in Supp. of Def.’s Mot. to

Transfer Venue and to Stay Proceedings Pending Arbitration (“Coyne Aff.”) (ECF No. 12-1)

42.) The company operates a real estate website that allows individuals throughout the United

States and Canada to search for rental apartments and to connect with landlords and realtors.

(Coyne Aff. 2.) Through the website, potential renters may request that Zumper gather credit,

criminal and eviction records from third-party sources and transmit those records to landlords

and realtors for evaluation. (Coyne Aff. § 2.) Further, through the website, landlords can

communicate with and evaluate prospective tenants. (Coyne Aff. § 2.) Trade House is a

corporation headquartered in Sandy, Utah. (Compl. { 10.) Plaintiff alleges that Trade House

operates as a consumer reporting agency and regularly assembles, evaluates and publishes

consumer information and reports to third parties. (Compl. 4 11.)

In August 2017, Plaintiff, a resident of Virginia, applied to rent a condominium. (Compl.

6, 13.) At the time, the leasing agent “requested Plaintiff's consumer report through

Zumper’s online tenant screening resource.” (Compl. ff 13-14.) Zumper’s records show that on

August 28, 2017, a realtor sent Plaintiff a request via Zumper to “create a Credit Report and to

run a background screen.” (Coyne Aff. J 6.) Zumper’s internal records reveal that “Ernest

Martin de Jesus Melo” created a Zumper account on August 28, 2017. (Coyne Aff. 20).

Plaintiff subsequently ordered and paid fifty dollars for Zumper to send credit, criminal and

eviction reports to his prospective landlord. (Coyne Aff. { 32.)

Zumper then obtained Plaintiff's requested records from Trade House. (Compl. {[ 15).

Zumper shared with the prospective landlord a consumer report that, according to Plaintiff,

included derogatory reports that did not belong to him. (Compl. ff] 16-17.) Plaintiff alleges that

due to Zumper’s failure to maintain procedures to ensure maximum accuracy, Zumper

incorrectly reported Plaintiffs father’s information instead of his own. (Compl. {ff 17-18.)

Because of this error, Plaintiff states that he could not secure the rental property and remained

further deterred from applying for other rental properties because of the inaccurate records.

(Compl. 9 19.) Finally, following this incident, Plaintiff reports requesting a copy of his

consumer file; however, Plaintiff asserts, Zumper did not respond to the request. (Compl. {J 20-

21.)

According to Zumper’s records, Plaintiff used a Samsung Galaxy S8 running the Google

Chrome web browser to create his Zumper account. (Coyne Aff. § 24.) When a prospective

user, like Plaintiff, receives a request from a landlord, the user clicks a blue “Get Started” button

that takes him to a website to create his account. (Coyne Aff. ff 8-10.) According to Zumper

records, this website had a pink “Create an Account” button. (Coyne Aff. 4 10.) Clicking this

button produces a pop-up window that prompts a user to enter a name and password. (Coyne

Aff. 10.) A rendition of what the website would have looked like to a user creating an account

in August 2017 appears below.!

Zumper concedes that while “conceivable” that Plaintiff could have created the account

by going to the Zumper home page and independently navigating to the create an account

window, it is unlikely and, moreover, according to Zumper, either way that Plaintiff chose to

make an account, he would have ended up at the website pictured. (Coyne Aff. at 4 n.3.)

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(Coyne Aff. at 5.) Below the “Create Account” button, a prospective user sees the following

language without having to scroll down: “By creating a Zumper account you indicate your

acceptance of our Terms and Conditions and Privacy Policy.” (Coyne Aff. 13.) Zumper

asserts that a prospective user cannot create an account without entering the required information

and affirmatively clicking the blue “Create Account” button. (Coyne Aff. { 12.)

The words “Terms and Conditions” and “Privacy Policy” appeared in blue to

indicate that they were hyperlinks. (Coyne Aff. { 14.) Clicking on the “Terms and

Conditions” hyperlink took a user to Zumper’s Terms of Use. (Coyne Aff. J 15.)

According to Zumper, the Terms of Use as they existed on August 28, 2017, the day that

Plaintiff created his account, included an agreement to binding arbitration and, to the

extent that the claims were not arbitrable, exclusive venue in the federal or state courts in

San Francisco. (Coyne Aff. { 27; Ex. D to Coyne Aff. (the “Agreement”) (ECF No. 12-

5) at 16-17.) Section 14 of the Agreement, entitled “Arbitration and Dispute Resolution,”

provided:

All disputes arising out of or relating to this Agreement, the Website or the

Services shall be resolved exclusively by binding arbitration before a single

arbitrator (the "Arbitrator") in accordance with the Commercial Arbitration Rules

of the American Arbitration Association (the "AAA") then in effect (for

information on the AAA and its rules, see www.adr.org.) and the further

procedures set forth herein, except that each party retains the right to seek

injunctive or other equitable relief in a court of competent jurisdiction to prevent

the actual or threatened infringement, misappropriation or violation of a party’s

copyrights, trademarks, trade secrets, patents or other intellectual property rights.

Notwithstanding the foregoing, you may at your option file an individual claim in

any small claims court for disputes or claims within the scope of its subject matter

jurisdiction if such court has personal jurisdiction. Zumper does not hereby waive

any defense that such jurisdiction may be lacking in your state. Without

derogation of the parties’ obligation to arbitrate as set forth herein, for any claims

other than those in small claims court, jurisdiction for any court proceedings

arising out of or relating to this Agreement, the Website or the Services shall be

vested exclusively in, and venue shall be laid in, the state or federal courts sitting

[in] San Francisco, California except that, following confirmation of an arbitration

award in a state or federal court in San Francisco, California, a judgment arising

therefrom may be executed in any court of competent jurisdiction.

(Agreement at 16-17.)

B. Plaintiff's Complaint.

On August 22, 2019, Plaintiff filed this Complaint (ECF No. 1) against Defendants,

setting forth three claims for relief. In Count I, Plaintiff alleges that Trade House violated 15

U.S.C. § 1681e(b) by failing to “maintain reasonable procedures to ensure the maximum possible

accuracy of the consumer credit information it reported.” (Compl. § 24.) Similarly, in Count II,

Plaintiff alleges that Zumper violated 15 U.S.C. § 1681e(b) by failing to “maintain reasonable

procedures to ensure the maximum possible accuracy of the consumer credit information it

reported.” (Compl. { 28.)

Finally, in Count III, Plaintiff asserts that Zumper violated 15 U.S.C. § 1681g when it

failed to provide Plaintiff a response to his written request for his consumer file, failed to

disclose the “source of the judgment information contained in his consumer report” and failed to

“identify each person that procured the Plaintiff's report during the preceding (one]-year period.”

(Compl. J 32.) Pursuant to Federal Rule of Civil Procedure 23, Plaintiff brings Count III on

behalf of himself and a putative class defined as:

All natural persons residing in the United States (a) who requested

their consumer disclosure from Zumper, (b) within the two year

period preceding the filing of this action and during its pendency,

and (c) to whom Zumper failed to provide a response that included

the source of the judgment information that appeared in the

consumer’s file.

(Compl. J 33.) Under all three counts, Plaintiff asserts that he is entitled to recover actual

damages, statutory damages and punitive damages, in addition to costs and attorneys’ fees.

(Compl. [{ 26, 30, 41.)

Cc. Defendant Zumper’s Motion to Transfer Venue and Stay Proceedings.

In response to Plaintiff's Complaint, on September 24, 2019, Zumper filed a Motion to

Transfer Venue and to Stay Proceedings Pending Arbitration. (ECF No. 11). Zumper moves to

transfer this entire action to the United States District Court for the Northern District of

California. (Def. Zumper, Inc.’s Mem. in Supp. of its Mot. to Transfer Venue and to Stay

Proceedings Pending Arbitration (“Def.’s Mem.”) (ECF No. 12) at 1.) Zumper first asserts that

Plaintiff agreed to arbitration or to exclusive venue in the Northern District of California when

he created an account and accepted the terms of the Agreement. (Def.’s Mem. at 1.)

Alternatively, Zumper asserts that the Court should transfer the venue of the claims pursuant to

28 U.S.C. § 1404(a), because of “efficiency and the interests of justice.” (Def.’s Mem. at 1.)

On October 29, 2019, Plaintiff filed a Memorandum in Opposition to Defendant

Zumper’s Motion to Transfer Venue and to Stay Proceedings Pending Arbitration (“Pl.’s Mem.”)

(ECF No. 23). Plaintiff contends that he is not subject to arbitration or to jurisdiction in the

Northern District of California, because Plaintiff did not enter into a valid contract, nor accept

any terms and conditions. (Pl.’s Mem. at 2.) Plaintiff further challenges the admissibility and

sufficiency of Zumper’s evidence — namely, the Coyne Affidavit. (Pl.’s Mem. at 4-9.) Plaintiff

also asserts that a transfer of venue would cause undue hardship for him and his cause of action.

(PI.’s Mem. at 2.) Alternatively, Plaintiff submits that even if the Court found that he knowingly

entered into a contract, the contract contains conflicting clauses such that the Court should find

that the “purported contract” fails for impossibility. (P].’s Mem. at 2.)

Plaintiff next argues that Count III of the Complaint, an alleged violation of 15 U.S.C.

§ 1681g, does not fall within the scope of the Agreement. (P1.’s Mem. at 2.) Finally, Plaintiff

submits that transfer to the Northern District of California to consolidate with the then-pending

class action, Gonzalez-Torres v. Zumper, would cause “significant and undue prejudice” to

Plaintiff's case and would be inappropriate because the cases present different legal theories and

causes of actions.” (PI.’s Mem. at 3.)

In response, Defendant Zumper filed a Reply Memorandum in Support of its Motion to

Transfer Venue and to Stay Proceedings Pending Arbitration (“Def.’s Reply”) (ECF No. 24) on

November 4, 2019. Zumper asserts that a venue transfer proves warranted before the Court even

2 Since the parties filed their briefs, the Northern District of California issued an order in

the related case, granting Zumper’s Motion to Compel Arbitration and Stay Proceedings.

Gonzales-Torrez v. Zumper, Inc., 2019 WL 6465283 (N.D. Cal. Dec. 2, 2019).

reaches the question of whether Plaintiff entered into a contract. (Def.’s Reply at 2.) Further,

Defendant reasserts that Plaintiff did in fact enter into a contract with Zumper and, in doing so,

agreed to the terms in the Agreement, including the arbitration and venue clauses. (Def.’s Reply

at 6.) Defendant further contends that all of Plaintiff's claims remain subject to the arbitration

and venue clauses and that the contract does not include contradictory terms requiring it to fail

for impossibility. (Def.’s Reply at 16-17.) Finally, Defendant asserts that if the Court does not

stay the case pending arbitration, the Court must conduct a summary trial to determine whether

Plaintiff agreed to Zumper’s terms. (Def.’s Reply at 19.)

D. Defendant Trade House’s Joinder in Motion to Stay Pending Arbitration.

On December 30, 2019, Trade House filed a Joinder in Motion to Stay Pending

Arbitration (Def. Trade House Data’s Joinder in Mot. to Stay Pending Arbitration (“Trade House

Motion”) (ECF No. 34)), moving this Court to join in Zumper’s Motion. Trade House argues

that, because Plaintiff consented to a broad arbitration agreement, agreeing to arbitrate “[a]ll

disputes arising out of or relating to this Agreement, the Website or the Services,” the Court

should compel arbitration and stay the action in its entirety. (Trade House Mot. at 2-3.) While

Trade House explicitly joins Zumper in its motion to stay the case pending arbitration, Trade

House does not object to Zumper’s motion to transfer venue. (Trade House Mot. at 1 n. 2.)

I. PLAINTIFF’S EVIDENTIARY OBJECTIONS

Because the admissibility of the parties’ evidence informs the final determination, the

Court first considers Plaintiffs objections to Defendant Zumper’s evidence — namely, his

objections to the Affidavit of Brian Coyne in Support of Defendant’s Motion to Transfer Venue

and Stay Proceedings Pending Arbitration (“Coyne Affidavit”). The Coyne Affidavit explains in

detail what a prospective user in Plaintiff's position would have seen when creating a Zumper

account, as well as the Plaintiff-specific data that Zumper captured when Plaintiff created his

account. Plaintiff charges that the statements made in the Coyne Affidavit are speculative,

hearsay and lack foundation. (Pl.’s Mem. at 7.) Plaintiff further challenges that Coyne based his

testimony in part “on screenshots created by some other mystery Zumper employee” that do not

support Zumper’s assertion that Plaintiff entered into a valid contract. (PI.’s Mem. at 7.)

Zumper asserts that the Coyne Affidavit constitutes admissible evidence. (Def.’s Reply

at 11-15.) Zumper argues that Coyne properly based his affidavit on personal knowledge and a

review of Zumper’s business records. (Def.’s Reply at 11-12.) Furthermore, Zumper asserts,

Coyne properly authenticated the screenshots included in his affidavit. (Def.’s Reply at 12-13.)

Zumper contends that it does not need to provide evidence “from a witness standing over

[Plaintiff]’s shoulder,” and, moreover, the Coyne Affidavit contains neither hypothetical nor

speculative testimony. (Def.’s Reply at 13-15.)?

A. Standard of Review.

As a general rule, pursuant to Federal Rule of Civil Procedure 56(c)(4), “[a]n affidavit or

declaration used to support or oppose a motion must be made on personal knowledge, set out

facts that would be admissible in evidence, and show that the affiant or declarant is competent to

testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).4 Federal Rule of Evidence 602 instructs

3 The Court notes that in a nearly analogous case, recently before the Northern District of

California, Zumper submitted similar affidavits — including one from Brian Coyne —that the

court ultimately relied on in its analysis. Gonzalez-Torres v. Zumper, Inc., 2019 WL 6465283

(N.D. Cal. Dec. 2, 2019).

4 Rule 56(c)(4) acts as the standard bearer for affidavits even outside the motion for

summary judgment context. Indeed, courts routinely cite Rule 56(c)(4) and case law explaining

the Rule 56(c)(4) standard in cases involving motions to transfer and motions to compel

arbitration. See, e.g., Del Zotto v. Universal Physician Services, LLC, 214 F. Supp. 3d 499, 503-

04 (D.S.C. 2016) (citing, in the motion to transfer venue context, Fourth Circuit precedent

that “[e]vidence to prove personal knowledge may consist of the witness's own testimony.” Fed.

R. Evid. 602. Furthermore, an “affiant's personal knowledge may be based on review of files, if

the testimony states facts reflected by the files.” Sanchez Carrera v. EMD Sales, Inc., 402 F.

Supp. 3d 128, 140 (D. Md. 2019). Moreover, in regard to business records submitted with an

affidavit, “i]t is well established that employees who are familiar with the record-keeping

practices of a business are qualified to speak from personal knowledge that particular documents

are admissible business records, and affidavits sworn by such employees constitute appropriate

... evidence.” Mundo-Violante v. Kerry, 180 F. Supp. 3d 442, 448 (W.D. Va. 2016) (quoting

Nader v. Blair, 549 F.3d 953, 963 (4th Cir. 2008) (citing Fed. R. Evid. 803(6))). Finally,

affidavits submitted in support of a motion may not be conclusory or based upon hearsay. Evans

v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); Barwick v. Celotex Corp.,

736 F.2d 946, 959-60 (4th Cir. 1984).

B. Analysis.

In his affidavit, Brian Coyne properly affirms that he based his testimony on his

“personal knowledge or [his] review of the records of Zumper, Inc.” (Coyne Aff. at 1.) Coyne

acts as the Chief Business Officer at Zumper, a position that he has held for over six years.

(Coyne Aff. J 1; Ex 2 to Pl.’s Mem. in Opp. to Def. Zumper Inc.’s Mot. to Transfer Venue and

Stay Proceedings Pending Arbitration (“Pl. Ex. 2”) (ECF No. 23-2) at 1.) In his affidavit, he

explains that the records that he reviewed were “regularly made and maintained in the ordinary

course of Zumper’s business by persons with knowledge at or near the times of the matters

explaining the Rule 56(c)(4) standard); Gibbs v. Stinson, 2019 WL 4752792, at *22 (E.D. Va.

Sept. 30, 2019) (citing Rule 56(c)(4) in the arbitration context).

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recorded therein.” (Coyne Aff. at 1.) Finally, he also states that he has “personal knowledge

regarding the appearance and function of the Zumper website . . . [and] the operation of the

systems through which user information is submitted to Zumper and stored by Zumper, including

the process for creating new user accounts.” (Coyne Aff. { 3.)

To the extent that Plaintiff argues that Coyne’s background does not qualify him to speak

to the technical aspects of Zumper’s business, the Court finds that Coyne has properly

demonstrated his own knowledge. His detailed testimony appropriately reflects his personal

knowledge. See Fed. R. Evid. 602 (“Evidence to prove personal knowledge may consist of the

witness's own testimony.”). Furthermore, Coyne properly enhanced his personal knowledge

with a review of appropriate business records and his testimony reflects the facts in those

records. Sanchez Carrera, 402 F. Supp. 3d at 140. Moreover, Coyne’s Affidavit does not

include discussion of any hyper-technical aspects or functions of Zumper’s website that would

require significant technical expertise not normally possessed by a Chief Business Officer.

5 The Court finds that the records attached to the affidavit and referenced therein as

admissible business records pursuant to the business record hearsay exception. Fed. R. Evid.

803(6). As affirmed by Coyne, the Zumper data records were “made at or near the time” at issue

by someone with knowledge and they were made and kept as part of Zumper’s regular business

practices. Fed. R. Evid. 803(6). Moreover, Coyne properly testified to all of these conditions in

his affidavit. Nader, 549 F.3d at 963 (“It is well established that employees who are familiar

with the record-keeping practices of a business are qualified to speak from personal knowledge

that particular documents are admissible business records, and affidavits sworn by such

employees constitute appropriate . . . evidence.”); see also Rambus, Inc. v. Infineon Tech. AG,

348 F. Supp. 2d 698, 702 (E.D. Va. 2016) (explaining that a witness proves qualified to certify a

business record if he can attest to an understanding of the record itself and the record keeping

system). While Plaintiff takes issue with the fact that Coyne is not the “custodian” of these

records, the Fourth Circuit has held that an affiant does not need to be the custodian to establish

that records are admissible business records. Nader, 549 F.3d at 963; see also Gen. Ins. Co. of

Am. v. United States Fire Ins. Co., 886 F.3d 346, 358 (4th Cir. 2018) (stating that a qualified

witness who can testify to the requirements of Fed. R. Evid. 803(6)({A)-(C) “need not have

personally participated in the creation of the document, nor know who actually recorded the

information”).

11

Plaintiff further suggests that because Coyne did not actually witness what Plaintiff saw

on his screen, Coyne’s testimony presents — at best — mere speculation. Once again, the Court

finds this argument unpersuasive. As explained above, Coyne based his testimony not only on

his own personal knowledge of Zumper, but also on business records that reflect data about how

Plaintiff created his account and what he would have seen.

Indeed, Coyne testified that Zumper regularly subscribes to a service that, as part of the

regular course of business, maintains a repository of the Zumper website as it has appeared in the

past. (Coyne Aff. § 3.) Further, Zumper keeps internal records of all account information and

creation. (Coyne Aff. § 20.) These records include information such as the type of browser and

type of device an account holder used to create his account. (Coyne Aff. ff 20-24.) Coyne also

included screenshots depicting what Plaintiff would have seen, based on these records. Courts

across the country, facing issues of e-commerce contracts, have regularly and properly relied on

these types of records and have consistently allowed testimony by those with personal

knowledge about what “would have appeared” on a user’s screen. See, e.g., Meyer v. Uber

Technologies, Inc., 868 F.3d 66, 70-72 (2d Cir. 2017) (relying on screenshots and a declaration

that represented that Uber maintained records from which the company could see what a user

had seen and done); Cordas v. Uber Technologies, Inc., 228 F. Supp. 3d 985, 988-989 (N.D.

Cal. 2017) (relying on testimony about what a prospective user would have seen and had to do to

create an account); Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 834-35 (S.D.N.Y 2012)

(allowing declarations with testimony and screenshots of what a user did and would have seen).

To the extent that Plaintiff argues that his own declaration proves dispositive of the

Coyne Affidavit, the Court need not accept conclusory affidavits. See, e.g., Barwick v. Celotex

Corp., 736 F.2d 946, 959-60 (4th Cir. 1984) (determining that a conclusory affidavit that “[did]

12

not give specific facts, but only generalities” did not measure up to the requirements of Rule 56.

Furthermore, other courts have found that a plaintiff does not create a genuine issue of fact by

merely submitting an affidavit or declaration that simply denies an opposing affidavit and offers

no evidence to rebut the opposing facts. See, e.g., Cordas v. Uber Technologies, Inc., 228 F.

Supp. 3d 985, 990 (N.D. Cal. 2017) (“[Plaintiff] offers no evidence to rebut [Defendant]'s

reasoned declaration other than his own conclusory allegations that he never received notice of

the terms and conditions and that [Defendant]’s declaration is false and inadequate.”). Plaintiff

submitted his own declaration in opposition to Zumper’s Motion. (Decl. of Ernest Melo (“Melo

Decl.”) (ECF No. 23-1).) Nevertheless, a careful reading of the facts — not conclusions —

contained in the two documents demonstrates that Coyne’s testimony does not conflict with

Plaintiff's. Plaintiff does not claim that the pop-up window referenced by Coyne did not appear

on his screen. (Coyne Aff. { 11; Melo Decl. 4-8.) Moreover, Plaintiff does not claim that the

statement that “[b]y creating a Zumper account you indicate your acceptance of our Terms and

Conditions and Privacy Policy” did not appear on his phone. (Coyne Aff. J 13; Melo Decl. {fj 4-

8.) Instead, he testifies that Zumper never displayed an arbitration clause or forum-selection

clause to him. (Melo Decl. 4] 5-6.) But, Coyne testified that these would have appeared only

after Plaintiff clicked the links. (Coyne Aff. 9 15.) Importantly, Plaintiff does not testify that he

clicked the link and, therefore, does not rebut Coyne’s testimony that the Agreement would have

appeared. (Melo Decl. 4-8.) As such, Plaintiff has produced no evidence to rebut or cast

doubt on Coyne’s testimony.

Finally, to the extent that Plaintiff challenges the authenticity of the screenshots included

in Coyne’s affidavit, Coyne properly authenticated them with his own testimony. Plaintiff

appears to take issue because the screenshots were created by “some other mystery Zumper

13

employee.” (Pl.’s Mem. at 7.) To authenticate evidence, “the proponent [of the evidence] must

produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

Fed. R. Evid. 901(a). The Federal Rules of Evidence explicitly state that an individual with

personal knowledge may submit testimony authenticating the evidence. Fed. R. Evid. 901(b)(1).

Furthermore, the Fourth Circuit has held that the burden to authenticate under Rule 901 “is not

high — only a prima facie showing is required.” Eschert v. City of Charlotte, 2017 WL 3633275,

at *6 (W.D. N.C. Aug. 23, 2017) (quoting United States v. Hassan, 742 F.3d 104, 133 (4th Cir.

2014) (allowing screenshots of social media pages that had been certified by those with personal

knowledge)). Testimony by a person with personal knowledge of what the photograph should

depict routinely authenticates those images. See, e.g., Lorraine v. Markel Am. Ins. Co., 24]

F.R.D. 534, 561 (D. Md. 2007) (“Photographs have been authenticated for decades under Rule

901(b)(1) by the testimony of a witness familiar with the scene depicted in the photograph who

testifies that the photograph fairly and accurately represents the scene.”).

Coyne has properly authenticated the screenshots in his sworn affidavit, especially in the

absence of any evidence to cast doubt on the authentication of the screenshots. Coyne affirms

his personal knowledge of the appearance and functionality of the Zumper website and account

creation process. (Coyne Aff. ] 3.) Consequently, the Court finds that Coyne has properly

authenticated the screenshots that he relied upon in his affidavit and included therein.®

6 The Court notes that other courts facing similar issues have allowed the use of

screenshots to demonstrate what a customer would have seen when creating an account. See,

e.g., Cordas, 228 F. Supp. 3d at 989 ("[T]Jo the extent the screenshots [that defendant’s

employee] submitted required authentication, he has authenticated them with his testimony from

personal knowledge.”); see also Worthington v. JetSmarter, Inc., 2019 WL 4933635, at *5-6

(S.D.N.Y. Oct. 7, 2019) (“When presented with arbitration agreements in contracts formed

online between companies and their customers, courts routinely rely on affidavits and

declarations . . . screenshots .. . submitted by the company’s employee describing and depicting

how the customer manifested assent to the company’s . . . arbitration provision.”); Selden v.

14

For the reasons set forth above, the Court finds Plaintiffs arguments challenging the

Coyne Affidavit as “speculative, hearsay, and lack[ing] merit” unpersuasive and will consider

the affidavit when addressing the motion to transfer.

IV. ZUMPER’S MOTION TO TRANSFER VENUE

Defendant Zumper asserts that the Court should transfer this entire action to the Northern

District of California, because Plaintiff agreed to Zumper’s terms when he created his Zumper

account and, therefore, agreed to arbitrate his claims or, to the extent that arbitration did not

apply, to exclusive venue in the Northern District of California. (Def.’s Mem. at 1.)

Alternatively, Zumper moves for transfer pursuant to 28 U.S.C. § 1404, because of efficiency

considerations and the interests of justice. (Def.’s Mem. at 1.) Plaintiff disputes that he entered

into a valid contract and, therefore, he asserts that he never agreed to litigate potential claims in

the Northern District of California. (P1.’s Mem. at 2.) Furthermore, Plaintiff contends, transfer

of venue would cause undue hardship for Plaintiff in presenting his case. (Pl.’s Mem. at 2.) The

Court will first consider whether Plaintiff entered into a valid contract with Zumper.

A. Plaintiff Entered into a Valid Contract with Zumper.

Zumper argues that Plaintiff entered into a valid contract when he created a Zumper

account and accepted the terms of the Agreement. (Def.’s Mem. at 10.) Plaintiff asserts that he

never entered into such a contract. (P1.’s Mem. at 4.)

Airbnb, Inc., 2016 WL 6476934, at *2-5 (D.D.C. Nov. 1, 2016) (relying on employee affidavits

and screenshots that depicted the customer’s actions and what the customer would have seen on

a website).

15

i. Standard of Review.

General principles of state contract law govern the question of whether Plaintiff entered

into a valid contract with Zumper.’ Under Virginia law, offer, acceptance and consideration

must exist to form a valid contract. Snyder—Falkinham vy. Stockburger, 457 S.E.2d 36, 39 (Va.

1995). Further, “mutuality of assent... is an essential element of all contracts.” Lacey v.

Cardwell, 217 S.E.2d 835, 843 (Va. 1975) (quoting Green's Ex'rs v. Smith, 131 S.E. 846, 848

(1926)). A court should use an objective standard to determine whether a party assented to the

terms of acontract. Phillips v. Mazyck, 643 S.E.2d 172, 175 (Va. 2007). A court must consider

the assenting “words or acts, not . . . [the party’s] unexpressed state of mind.” /d. (citing Wells v.

Weston, 326 S.E.2d 672, 676 (1985)). Finally, a contract does not become less of a contract

simply because a party entered into it electronically. A.V. v. iParadigms, Ltd. Liability Co., 544

F. Supp. 2d 473, 480 (E.D. Va. 2008), rev'd on other grounds, 562 F.3d 630 (4th Cir. 2009).

ii. Analysis.

The contract at issue here can be described as an online adhesion contract. Selden v.

Airbnb, Inc., 2016 WL 6476934, at *4 (D.D.C. Nov. 1, 2016).8 “While new commerce on the

7 The parties both agree that Virginia state law applies in this case. (Def.’s Mem at 11;

Pl,’s Mem. at 7.)

8 There are many types of online adhesion contracts, including browsewrap, clickwrap and

sign-in-wrap. Selden, 2016 WL 6476934, at *4. A browsewrap agreement does not require a

user to click “I agree” to use the web services, but rather attempts to bind the user to hyperlinked

terms simply through using the website. Cvent, Inc. v. Eventbrite, Inc., 739 F. Supp. 2d 927, 937

(E.D. Va. 2010). A “clickwrap” agreement is one in which a user accepts a website’s terms of

use by clicking an “I agree” or “I accept” button, with a link to the agreement readily available.

Selden, 2016 WL 6476934, at *4. Finally, sign-in-wrap agreements occur when a prospective

user signs up for a product or service and the screen states that the acceptance of the terms and

conditions are required to access the product or service. While the user has access to the

terms and conditions via a hyperlink, the user does not have to read the terms and conditions

before signing up. /d. Courts generally have looked more favorably upon clickwrap and sign-in-

wrap agreements than browsewrap agreements. The contract at issue here most closely

16

Internet has exposed courts to many new situations, it has not fundamentally changed the

principles of contract.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004). To

enforce the agreement, Zumper must demonstrate the existence of an offer, an acceptance and

consideration. Because the parties do not contest offer or consideration, the crux of the issue

surrounds whether Plaintiff had knowledge of the terms of the offer — that is, the Agreement —

and manifested assent to them.

“[MJost courts have held web browser contracts enforceable where the user ‘had actual or

constructive knowledge of the site's terms and conditions, and . . . manifested assent to them.”

Capital Concepts, Inc. v. Mountain Corp., 2012 WL 6761880, at *10 (W.D. Va. Dec. 30, 2012)

(quoting Cvent, Inc. v. Eventbrite, Inc., 739 F. Supp. 2d 927, 937 (E.D. Va. 2010)) (alteration in

original). Indeed, courts have consistently “recognized that [an] electronic ‘click’ can suffice to

signify the acceptance of a contract,’ and that ‘[t]here is nothing automatically offensive about

such agreements, as long as the layout and language of the site give the user reasonable notice

that a click will manifest assent to an agreement.’” Meyer, 868 F.3d at 75 (quoting Sgouros v.

TransUnion Corp., 817 F.3d 1029, 1033-34 (7th Cir. 2016)).

When analyzing analogous agreements, courts consider a variety of factors to determine

if a prospective user had reasonable notice that by creating an account, he would agree to the

provider’s terms and conditions. Selden, 2016 WL 6476934, at *4. Courts ask the crucial

questions of whether the website presented the terms and conditions in a hyperlink, and whether

that hyperlink appeared clearly to the user. See, e.g., Meyer, 868 F.3d at 79 (“As long as the

resembles a sign-in-wrap agreement. However, as the District of Columbia District Court

properly noted, “[w]hile the relevant terminology continues to evolve, the Court’s inquiry into

contract formation does not.” Jd.

17

hyperlinked text was itself reasonably conspicuous . . . a reasonably prudent smartphone user

would have constructive notice of the terms.”); Cullinane v. Uber Techs, Inc., 893 F.3d 53, 63

(1st Cir. 2018) (noting that hyperlinks are “commonly blue and underlined.”)

Next, courts consider the placement of the terms and conditions hyperlink in relation to

the button that grants a user access to the service or product. Selden, 2016 WL 6476934, at *5.

For example, a district court in South Carolina enforced a similar agreement, citing the location

of the disclaimer in relation to the “Place your order” button. Payne v. Amazon.com, Inc., 2018

WL 4489275, at *5 (D.S.C. July 25, 2018) (“[A] reasonably prudent offeree would know that he

agreed to Amazon’s Conditions of Use by clicking the ‘Place your order’ button when that

button appeared directly next to or above a statement hyperlinking to conditions and the

statement indicated the user agreed to those conditions by ordering.”).?

Reviewing courts also consider whether the terms and conditions hyperlink appeared to

the user on multiple occasions, even after the user signed up for the website or service. Selden,

2016 WL 6476934, at *5; see also Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 401 (E.D.N.Y

2015) (explaining that sign-in-wrap agreements are usually upheld if “notice of the hyperlinked

terms and conditions is present on multiple successive webpages of the site.”).

? See also Fteja, 841 F. Supp. 2d at 840 (finding that the user “was informed of the

consequences of his assenting click and he was shown, immediately below, where to click to

understand those consequences. That was enough.”); Swift v. Zynga Game Network, Inc., 805 F.

Supp. 2d 904, 908, 912 (N.D. Cal 2011) (finding an arbitration clause binding where the terms of

service statement was directly below the “Accept” button); Starke v. Gilt Groupe, Inc., 2014 WL

1652225, at *2-3 (S.D.N.Y. Apr. 24, 2014) (finding terms binding when the “terms of use”

statement was right next to the “Shop Now” button); Crawford v. Beachbody, LLC, 2014 WL

6606563, at *3 (S.D. Cal. Nov. 5, 2014) (finding a forum selection clause binding where the user

clicked on a button marked “Place Order” and the notice of the terms and conditions was directly

below the button); but see Cvent, Inc., 739 F. Supp. 2d at 933 (finding an agreement

unenforceable when the terms link appeared “buried at the bottom of the first page .. . and users

must affirmatively scroll down to the bottom of the page to even see the link”).

18

Finally, courts consider the overall design elements of the website, including font size

and color, and other visual components that might hinder a user’s reasonable notice. Church v.

Hotels.com L.P., 2018 WL 3130615, at *2 (D.S.C. June 26, 2018) (“[T]he hyperlinked

disclaimer is presented in the same ‘small gray font on a light gray background’ as is the

payment information that Plaintiff himself typed.”).'°

After a review of analogous online adhesion contracts, the Court finds that Plaintiff had

— at the very least — constructive knowledge of Zumper’s terms found in the Agreement and

that by clicking “Create Account,” he manifested assent to them. Even if Plaintiff did not read

the Agreement, “[i]gnorance of the precise terms does not mean that consumers are unaware they

are entering contracts by signing up for internet-based services.” Selden, 2016 WL 6476934, at

*5.

As outlined above, to use Zumper and request the reports as Plaintiff unequivocally did,

Plaintiff must have created an account. (Coyne Aff. § 2.) Plaintiff created his account on August

28, 2017, according to Plaintiff's own admissions and Zumper’s internal records. (Compl.

13-14; Coyne Aff. 76.) Plaintiff created his account using the Google Chrome web browser

on his Samsung Galaxy S8 mobile device. (Coyne Aff. | 24.) According to Zumper’s internal

business records, at some point during the process of account creation, Plaintiff would have been

confronted with a pop-up window that directed him to create an account. (Coyne Aff. ¢§ 10-11.)

On this pop-up window, Plaintiff had to either click the button that said “Create Account” or the

10 Compare these findings to the First Circuit in Cullinane v. Uber Techs, Inc. in which the

court found the notice inadequate. 893 F.3d at 64 (“This notice was displayed in a dark gray

small-sized non-bolded font against a black background. The notice simply did not have any

distinguishable feature that would set it apart from all the other terms surrounding it.”); see also

Meyer v. Kalanick, 200 F. Supp. 3d 408, 414, 417, 422 (S.D.N.Y. 2016) (finding Uber’s terms-

of-service agreement not binding when the statement “was in a font that was barely legible on [a]

smartphone device . . . [and] beneath two . . . additional buttons”).

19

button labeled “Continue with Facebook.” (Coyne Aff. $f 10-11.) Internal records show that

Plaintiff proceeded by clicking the “Create Account” button. (Coyne Aff. {{ 18, 23.) The pop-

up window, as it would have appeared to Plaintiff in August 2017, appears below:

Crete Accuunt

crest elogoutleokosm

aie.

Aledy 4 merrtyer? Signe

(Coyne Aff. J 11.)

Directly below the “Create Account” button, the popup window displayed an acceptance

statement that read: “By creating a Zumper Account you indicate your acceptance to our Terms

and Conditions and Privacy Policy.” (Coyne Aff. 4 11.) The words “Terms and Conditions” and

“Privacy Policy” appeared in a light blue color — to indicate hyperlinking — while the other

words in the statement appeared black. (Coyne Aff. 11, 14.) The acceptance statement

appeared in the same size and style font as the prompts used to direct a user to enter his name,

email address and password. (Coyne Aff. ] 13.) Importantly, a user immediately saw the

acceptance statement without having to scroll down. (Coyne Aff. § 13.) Had a user clicked on

20

the blue hyperlinks, the website would have opened up a window in which he could have read

the Agreement and privacy policy.'! According to Zumper’s records, Plaintiff clicked the

“Create Account” button at 6:55 p.m. (EDT) on August 28, 2017. (Coyne Aff. □ 18, 23.) Ten

minutes later, Plaintiff used Zumper to share a credit and background check with a realtor and

paid fifty dollars with a credit card for the reports. (Coyne Aff. {{ 32-33.)

The Zumper web browser presented to Plaintiff provided sufficient notice of the

Agreement. The interface appeared clear and uncluttered. The phrases “Terms and Conditions”

appeared in blue, indicating that Plaintiff could click a hyperlink to thoroughly read the

Agreement. Furthermore, Plaintiff did not have to scroll down to see the disclaimer. “[T]he

layout and language of the site g[ave] the user reasonable notice that a click will manifest assent

to an agreement.” Meyer, 868 F.3d at 75 (quoting Sgouros, 817 F.3d at 1033-34). Zumper

clearly stated that “[b]y creating a Zumper Account you indicate your acceptance of our Terms

and Conditions and Privacy Policy.” (Coyne Aff. { 11.) When Plaintiff clicked the “Create

Account” button, he manifested assent to the Agreement, including the forum selection clause

contained therein.

iii. The Contract Does Not Fail for Impossibility.

Plaintiff argues that, even if the Court were to find that Plaintiff entered into a valid

agreement, the contract fails for impossibility. The Court disagrees. Plaintiff asserts that the

Agreement proves unenforceable “since it contains conflicting terms which require Plaintiff to

simultaneously litigate his claims in California courts and in arbitration.” (Pl.’s Mem. at 13.)

Plaintiff argues that he could not have assented to the Agreement, because the acceptance

statement references the “Terms and Conditions” while the Agreement bears the title “Terms of

Use.” (PI.’s Mem. at 9.) However, he does not claim that he noticed the discrepancy in

language, suffered any confusion, or even that he clicked on the “Terms and Conditions”

hyperlink.

21

Defendant challenges this assertion and contends that the Agreement does not contain

contradictory language. (Def.’s Reply at 17.) The Court finds Plaintiff's argument meritless.

The relevant portion of the Agreement reads:

Without derogation of the parties’ obligation to arbitrate as set forth

herein, for any claims other than those in small claims court, jurisdiction

for any court proceedings arising out of or relating to this Agreement, the

Website or the Services shall be vested exclusively in, and venue shall be

laid in, the state or federal courts sitting San Francisco, California.

(Agreement at 16-17 (emphasis added).) Indeed, the Agreement itself takes into consideration

that plaintiffs cannot litigate and arbitrate at the same time. As Defendant correctly explain in

his brief, “[w]hile most claims are arbitrable, the few that are not are still subject to venue in San

Francisco.” (Def.’s Reply at 17.) Moreover, the parties could waive arbitration or file suit to

confirm any arbitration award, demonstrating that the two provisions can co-exist. Plaintiff

entered into a valid contract and that contract does not fail for impossibility.

B. The Contract Contains a Valid Forum Selection Clause.

Since the Court finds that the parties have entered into a valid contract, the Court must

next consider if the contract contains a valid forum selection clause.

i. Standard of Review.

When considering a forum selection clause, courts must first decide which law governs

the enforceability of the clause. Torres v. SOH Distribution Co., 2010 WL 1959248, at *2 (E.D.

Va. May 13, 2010) (citing Eisaman v. Cinema Grill Sys., Inc., 87 F. Supp. 2d 446, 448 (D. Md.

1999)). In cases involving federal question jurisdiction — as in the instant case —

federal courts apply federal law. Jd. (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585,

590 (1991)); see also Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 650 (4th Cir.

22

2010) (“[A] federal court interpreting a forum selection clause must apply federal law in doing

A court must next consider whether the contract at issue contains a permissive or

mandatory forum selection clause. “[F]ederal courts have found dispositive the particular

language of the clause and whether it authorizes another forum as an alternative to the forum of

the litigation or whether it makes the designated forum exclusive.” Abermarle Corp., 628 F.3d at

650. A mandatory forum selection clause contains “clear language showing that jurisdiction is

appropriate only in the designated forum.” Garrett v. Gulf Stream Coach, Inc., 2009 WL

936297, at *2 (E.D.Va. Apr. 7, 2009); see also Abermarle Corp., 628 F.3d at 650-51 (explaining

that a forum selection clause that contains “specific language of exclusion” will be interpreted as

mandatory and excluding venue elsewhere). Meanwhile, a permissive forum selection clause,

sometimes referred to as a “consent to jurisdiction clause,” authorizes certain jurisdictions and

venues, but does not prohibit litigation elsewhere. Abermarle Corp., 628 F.3d at 650-51. Ifa

court decides that the clause is mandatory, “[flederal law presumes mandatory forum selection

clauses to be prima facie enforceable for claims within their scope ‘unless enforcement is shown

by the resisting party to be ‘unreasonable’ under the circumstances.” Torres, 2010 WL

1959248, at *2 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)).

The Fourth Circuit has held that:

A [forum selection] clause is unreasonable if (1) it was the result

of ‘fraud or overreaching’; (2) ‘trial in the contractual forum

[would] be so gravely difficult and inconvenient [for the

complaining party] that he [would] for all practical purposes be

deprived of his day in court’; or (3) ‘enforcement would

contravene a strong public policy of the forum in which suit is

brought.’

23

Pee Dee Health Care, P.A. v. Sanford, 509 F.3d 204, 213-14 (4th Cir. 2007) (quoting Bremen,

407 U.S. at 15-18) (alterations in original); see also Allen v. Lloyd's of London, 94 F.3d 923, 928

(4th Cir. 1996) (explaining the same).

ii. Analysis.

In the instant case, the forum selection clause at issue reads:

Without derogation of the parties’ obligation to arbitrate as set forth

herein, for any claims other than those in small claims court, jurisdiction

for any court proceedings arising out of or relating to this Agreement, the

Website or Services shall be vested exclusively in, and venue shall be laid

in, the state or federal courts sitting San Francisco, California.

(Agreement at 16-17 (emphasis added).) This contract contains a mandatory forum selection

clause. The clause includes “clear language” that demonstrates that the exclusive venue for any

unarbitrable claims lies in San Francisco — within the Northern District of California. See

Garrett v. Gulf Stream Coach, Inc., 2009 WL 936297, at *2 (E.D. Va. Apr. 7, 2009) (“A

mandatory forum selection clause contains ‘clear language showing that jurisdiction is

appropriate only in the designated forum.’”) Indeed, the clause contains language such as “shall”

and “exclusively” that indicate that only certain courts are proper. See Unistaff, Inc. v.

Koosharem Corp., 667 F. Supp. 2d 616, 619 (E.D. Va. 2009) (“Words such as ‘shall,’ ‘only’ or

‘exclusive’ are often indicators that a clause is mandatory rather than permissive.””). Further, “[a]

crucial distinction between a mandatory clause and a permissive clause is whether the clause

only mentions jurisdiction or specifically refers to venue.” Gita Sports Lid. v. SG Sensortechnik

GmbH & Co. KG, 560 F. Supp. 2d 432, 436 (W.D.N.C. 2008) (internal quotations omitted).

Here, the forum selection clause specifically refers to venue. (Agreement at 16-17 (“[V]enue

shall be laid in... ”’).) For the above stated reasons, the Court finds that the Agreement includes

a mandatory forum selection clause.

24

Because the contract includes a mandatory forum selection clause, the Court must next

consider its validity. As explained above, federal law presumes the validity of mandatory forum

selection clauses, unless enforcement would be unreasonable under the circumstances. Pee Dee

Health Care, P.A., 509 F.3d at 213-14.

Based on a thorough review of the pleadings and the evidence presented, the Court finds

no discernable allegations of fraud or overreaching. Although Plaintiff asserts that transfer to the

Northern District of California would pose an undue financial and logistical burden on him,

courts within this circuit and elsewhere have consistently held that “a party seeking to avoid a

forum selection clause must prove more than the inconvenience of litigating in a distant forum.”

Price v. Leasecomm Corp., 2004 WL 727028, at *4 (M.D.N.C, March 31, 2004); see also The

Hipage Co. v. Access2Go, Inc., 589 F. Supp. 2d 602, 612-13 (E.D. Va. 2008) (“[T]he Fourth

Circuit has clearly stated that the expense of transporting witnesses is not sufficient to preclude

enforcement of a forum clause.” (citing Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253,

1258 (4th Cir.1991))). Indeed, “[t]he party challenging a forum selection clause on the basis of

inconvenience must demonstrate ‘that the specified forum is so seriously inconvenient that he

would be deprived of an opportunity to participate in the adjudication.’”” AC Controls v.

Pomeroy Computer Resources, Inc., 284 F. Supp. 2d 357, 361 (W.D.N.C. 2003) (quoting

Mercury Coal & Coke, Inc. v. Mannesmann Pipe & Steel Corp., 696 F.2d 315, 317 (4th Cir.

1982)).

Furthermore, the Northern District of California is fully equipped to adjudicate an

appropriate and fair trial. Indeed, the district recently litigated a nearly identical case involving

Zumper. Gonzalez-Torres v. Zumper, Inc.,2019 WL 6465283 (N.D. Cal. Dec. 2, 2019).

Finally, enforcement of the forum selection clause will not contravene any strong public policy

25

of the Commonwealth of Virginia. See, e.g., The Hipage Co., Inc., 589 F. Supp. 2d at 613

(finding that enforcement of forum selection clause in an internet service provider’s contract

with a customer would not violate any strong Virginia public policy).

Cc. Transfer is Appropriate Under 28 U.S.C. § 1404.

Pursuant to 28 U.S.C. § 1404(a), “(flor 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 or to any district or division to which all parties have

consented.” Typically, in a case that does not involve a forum selection clause, a court

considering a motion to transfer pursuant to § 1404 evaluates and weighs the convenience of

both parties, as well as various public interest considerations. Atl. Marine Const. Co. v. U.S.

Dist. Court for W. Dist. of Texas, 571 U.S. 49, 62 (2013). In considering a § 1404 motion, a

court generally considers “(1) the weight accorded to plaintiff's choice of venue; (2) witness

convenience and access; (3) convenience of the parties; and (4) the interest of justice.” Trs. of

the Plumbers & Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th

Cir. 2015).

The calculus changes, however, when the parties have entered into a contract that

contains a valid forum selection clause, which “represents the parties' agreement as to the most

proper forum.” Atl. Marine Const. Co., 571 U.S. at 63 (quoting Stewart Org., Inc. v. Ricoh

Corp., 487 U.S. 22, 31 (1988)). Indeed, the Supreme Court has held that “[w]hen the parties

12 The parties do not contest that the case could have originally been brought in the

Northern District of California. Under 28 U.S.C. § 1391(b), an action may be brought in any

district in which a defendant resides or in a district in which a substantial part of the actions or

events giving rise to the claim took place. Zumper’s headquarters are located in San Francisco

35 moreover, the events at issue substantially took place in California. (Coyne Aff. {ff 2, 27-

26

have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case

to the forum specified in that clause. Only under extraordinary circumstances unrelated to the

convenience of the parties should a § 1404(a) motion be denied.” Atl. Marine Const. Co,, 571

USS. at 62.

Because the parties have already agreed to a proper forum, the Court should typically

only consider the public-interest factors, including “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.” Jd. at 64,

n.6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6 (1981)). The Supreme Court

further noted, however, that “[b]ecause those factors will rarely defeat a transfer motion, the

practical result is that forum-selection clauses should control except in unusual cases.” Jd. at 64

(“Although it is ‘conceivable in a particular case’ that the district court ‘would refuse to transfer

a case notwithstanding the counterweight of a forum-selection clause,’ such cases will not be

common.” (quoting Stewart Org., Inc., 487 U.S. at 30-31)).

In the instant case, the Court finds no exceptional public policy factors exist that

outweigh the presumption of enforcing the forum selection clause. Because the parties have not

presented any extraordinary public policy issues that would overcome the presumption in favor

of enforcing the forum selection clause, the Court finds a transfer of venue proper.

D. The Court Will Transfer the Entire Action.

Because the Court finds that the Agreement include a valid mandatory forum selection

clause, the Court must consider whether to transfer the entire action or only certain claims.'?

3 Plaintiff does not appear to challenge the scope of the forum selection clause as it relates

to Count I, Trade House’s alleged violation of 15 U.S.C. § 1681e(b). The Court notes that those

claims fall squarely within the terms outlined in the Agreement. The Agreement vests exclusive

27

Plaintiff contends that even if he entered into a valid contract and agreed to the terms in the

Agreement, Count Three, his 15 U.S.C. § 1681g claim, does not fall within the scope of the

forum selection clause. (Pl.’s Mem. at 11-13.) He argues that the Court should sever Count

Three. (Pl.’s Mem. at 13.) Zumper asserts that the Agreement encompasses all of Plaintiff's

claims, including Count Three. (Def.’s Reply at 16.) Count Three alleges that “Zumper failed to

provide Plaintiff any response to his written request for a copy of his consumer file in a timely

manner, failed to disclose the source of the judgment information contained in his consumer

report, and failed to identify each person that procured the Plaintiffs report.” (Compl. § 32.)

Because the Court will transfer this action in its entirety, it need not determine whether the

Agreement encompasses Plaintiff's § 1681ig claim.

“Under § 1404(a), the court has authority only to transfer the entire civil action, not

individual claims.” One Beacon Ins. Co. v. JNB Storage Trailer Rental Corp., 312 F. Supp. 2d

824, 828 (E.D. Va. 2004); see also Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d

1509, 1518-19 (10th Cir. 1991) (“Section 1404(a) only authorizes the transfer of an entire action,

not individual claims.”). Moreover, “[t]he decision whether to transfer an action [under section

1404(a)] is committed to the sound discretion of the district court.” D'Addario v. Geller, 264 F.

Supp. 2d 367, 391 (E.D. Va. 2003). In exercising this discretion, the Court can and should

consider “whether the interest of justice and convenience of the parties and witnesses justify

transfer to that forum.” Glob. Touch Sols., LLC v. Toshiba Corp., 109 F. Supp. 3d 882, 889 (E.D.

Va. 2015). “[T]he most prominent elements” of the interest of justice factor “are judicial

economy and the avoidance of inconsistent judgments.” Jd. Here, the Court finds that the

venue in the Northern District of California for any claims “arising out of or relating to this

Agreement, the Website or the Services.” (Agreement at 16-17.)

28

avoidance of piecemeal litigation promotes judicial economy and gives the Court no reason to

depart from the normal practice of transferring an entire action.'* Given that the Court will

transfer the entire action, it need not decide whether the Agreement encompasses all of

Plaintiffs claims.’

V. CONCLUSION

For the reasons set forth above, the Court finds that a transfer of venue to the Northern

District of California is proper. Therefore, the Court hereby GRANTS Zumper’s Motion to

Transfer Venue and hereby TRANSFERS this matter to the Northern District of California.

Further, the Court DENIES WITHOUT PREJUDICE Trade House’s Joinder in Motion to Stay

Pending Arbitration. The Court declines to decide any further issues relating to this matter,

including whether the case should be stayed pending arbitration.

An appropriate Order shall issue.

Let the Clerk file a copy of this Memorandum Opinion electronically, notify all counsel

of record and forward a copy to the Northern District of California.

/s/

David J. Novak

United States District Judge

Richmond, Virginia

Date: January 07, 2020

M4 In a similar case involving a motion to transfer pursuant to 28 U.S.C. § 1406, the Court

explicitly considered “the avoidance of piecemeal litigation” in its venue transfer analysis.

D'Addario, 264 F. Supp. 2d at 393.

15 Likewise, the Court need not determine whether Trade House can enforce the arbitration

clause in the Agreement. Accordingly, the Court will deny Trade House’s motion without

prejudice.

29