Amadasun v. Google, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

PATRICK AMADASUN,

Plaintiff,

Civil Action No.

v.

1:21-cv-04854-SDG

GOOGLE, INC.,

Defendant.

OPINION AND ORDER

This matter is before the Court on Defendant Google LLC’s1 motion to

dismiss and compel arbitration or, in the alternative, to transfer venue or dismiss

for failure to state a claim [ECF 4] and Defendant Patrick Amadasun’s motion to

remand [ECF 7]. After careful review of the parties’ briefing, the Court GRANTS

Google’s motion to dismiss and compel arbitration and DENIES AS MOOT

Amadasun’s motion to remand.

I. Background

Amadasun filed suit in the Superior Court of Fulton County, Georgia,

alleging that Google defamed him by sending a series of emails, which were

accessible to Amadasun’s employees, informing him that his account with

Google’s advertising program (Google Ads) was suspended for fraudulent activity

1 Google LLC was improperly named as Google, Inc. in Amadasun’s Complaint.

and referring to him as a “fraudster.”2 Google removed the case to this Court,

claiming diversity jurisdiction,3 and now moves to dismiss and compel arbitration

or, alternatively, to transfer venue or dismiss for failure to state a claim.4

Amadasun moves to remand the case back to state court.5 Both motions are fully

briefed and ripe for consideration.6

II. Discussion

Google’s motion to dismiss and Amadasun’s motion to remand both

question whether this Court is the proper forum for Amadasun’s claims. Though,

typically, subject matter jurisdiction is a threshold issue, the Court has leeway ”to

choose among threshold grounds for denying audience to a case on the merits.”

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 423 (2007) (quoting

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999)). A district court may,

2 ECF 1-1, ¶¶ 3–10.

3 ECF 1.

4 ECF 4.

5 ECF 7.

6 ECF 8 (Amadasun’s Opp. to Google’s Mot. Dismiss); ECF 10 (Google’s Opp. to

Amadasun’s Mot. Remand); ECF 11 (Google’s Reply in Support Mot. Dismiss).

Amadasun filed two identical oppositions to Google’s motion, ECF 8 and ECF

9. For ease of reference, the Court will refer to ECF 8. Additionally, without

seeking leave to do so, Amadasun filed another reply in opposition to Google’s

motion to dismiss. ECF 12. As Google did not object to the filing, and it does

not alter the Court’s analysis, the Court has considered the reply.

therefore, “bypass[ ] questions of subject-matter and personal jurisdiction, when

considerations of convenience, fairness, and judicial economy so warrant,” and

decide “that the merits should be adjudicated elsewhere.” Id. at 432. “The

underlying principle is that ‘jurisdiction is vital only if the court proposes to issue

a judgment on the merits.’” A.W. v. Tuscaloosa City Sch. Bd. of Educ., 744 F. App’x

668, 671 (11th Cir. 2018) (quoting Sinochem Int’l Co., 549 U.S. at 431). In response to

Google’s motion, Amadasun expressed a preference for arbitration because it will

“keep this action private.”7 He does not, however, consent to dismissal.8 Given

Amadasun’s preference, and in the interest of convenience and fairness, the Court

will determine whether dismissal in favor of arbitration is appropriate, and not

whether it must remand the case to state court.9 See Marietta Drapery & Window

7 ECF 8, at 2.

8 Id. at 13.

9 It is worth noting that the Court’s subject matter jurisdiction over this case is

not as obvious as Google represents. ECF 10, at 4–5. Google is a limited liability

company, which means, for jurisdictional purposes, it is a citizen “of any state

of which a member of the company is a citizen.” Rolling Greens MHP, L.P. v.

Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). Google failed

to provide the citizenship of its members in either its notice of removal or its

response in opposition to the motion to remand and would be required to do

so to avoid remand. ECF 1, ¶ 2; ECF 10, at 5.

Coverings Co. v. N. River Ins. Co., 486 F. Supp. 2d 1366, 1368 (N.D. Ga. 2007) (electing

to rule on transfer based on first-filed rule rather than motion to remand).

A. The Arbitration Agreement Is Valid and Enforceable.

“The validity of an arbitration agreement is generally governed by the

Federal Arbitration Act (FAA).” Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359,

1367 (11th Cir. 2005). Under the FAA, a court must “either stay or dismiss a lawsuit

and to compel arbitration upon a showing that (a) the plaintiff entered into a

written arbitration agreement that is enforceable ‘under ordinary state-law’

contract principles and (b) the claims before the court fall within the scope of that

agreement.” Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir. 2008) (citing

9 U.S.C. §§ 2–4 and Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1061

(11th Cir. 1998)). “[I]n determining whether a binding agreement arose between

the parties, courts apply the contract law of the particular state that governs the

formation of contracts.” Caley, 428 F.3d at 1368. Even in applying state law, the

Court considers the federal policy favoring arbitration. Id. (quoting Cooper v. MRM

Inv. Co., 367 F.3d 493, 498 (6th Cir. 2004)).

Google claims that Amadasun entered into a binding arbitration agreement

when he accepted Google’s terms in setting up his Google Ads account.10 It is

undisputed that Amadasun created a Google Ads account,11 and Google has

submitted evidence that Amadasun agreed to the terms of the Google Ads

program in creating his account.12 On a motion to compel arbitration, the Court

may consider matters outside the pleadings. Chambers v. Groome Transp. of Ala., 41

F. Supp. 3d 1327, 1334 (M.D. Ala. 2014) (citing Johnson v. KeyBank Nat’l Assoc., 754

F.3d 1290, 1294 (11th Cir. 2014) (describing an order compelling arbitration as

“summary-judgment-like”)). The terms of the Google Ads program include a

provision entitled “Arbitration of disputes,” which states that Google and the

customer (Amadasun) “agree to arbitrate all disputes and claims between Google

and Customer . . . that arise out of or relate in any way to [Google Ads].”13 The

terms also provide that all claims related to the program are governed by

California law.14

10 ECF 4-1, at 8–10.

11 ECF 1-1, ¶¶ 3, 5.

12 ECF 4-2, ¶¶ 4–5.

13 Id. at 9.

14 Id. at 11.

In a conclusory fashion, Amadasun argues that there is no binding

arbitration agreement because there was no “meeting of the minds” as to the

essential terms of the contract and because he opted out of the arbitration

agreement.15 It is unclear whether Amadasun challenges the validity of the entire

agreement, including the provision applying California law, or just the arbitration

provision. The Court agrees with Google, however, that the analysis remains the

same whether the Court applies Georgia or California law. Under both, a party to

a contract demonstrates mutual assent to its terms by acting on or accepting the

benefits of the contract. See Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277,

1284 (N.D. Ga. 2008) (under Georgia law, plaintiff was bound by arbitration

agreement in cable subscription agreement by accepting service without objecting

to the terms); Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1059

(N.D. Cal. 2010) (users assented to terms of internet ad-service by electronically

indicating that they “accepted” the terms of use prior to accessing the services).

Google has shown that Amadasun accepted the benefits of the advertising

program, and assented to the terms of the program, when he created his account.16

Amadasun has not offered evidence or argument suggesting otherwise. Nor has

15 ECF 8, at 13.

16 ECF 4-2, ¶¶ 4–6.

he shown that he followed the contract’s procedure for opting out of the dispute

resolution provisions.17 The Court finds, therefore, that Amadasun entered into a

binding arbitration agreement with Google when he created his Google Ads

account. Larsen v. Citibank FSB, 871 F.3d 1295, 1307 (11th Cir. 2017) (rejecting

consumer’s unsupported claim that he did not investigate terms of account and

finding that bank met its burden of establishing consent to arbitration by

“providing uncontroverted evidence” of signature before use of service).

Google has also established that Amadasun’s claims fall within the scope of

the arbitration agreement. The agreement applies broadly to “all disputes and

claims between Google and Customer . . . that arise out of or relate in any way to

Google Ads or these Terms,” and includes “claims brought under any legal

theory.”18 Amadasun’s defamation claims arise out of Google’s suspension of his

Google Ads account and the way in which it communicated the suspension to

him.19 These claims clearly “relate to” the advertisement program and fall within

the broad scope of the arbitration provision. See Doe v. Princess Cruise Lines, Ltd.,

657 F.3d 1204, 1218 (11th Cir. 2011) (a claim “arises from” or “relates to” an

17 Id. at 11.

18 Id. at 9.

19 ECF 1-1, ¶¶ 3–10.

agreement where it has some direct relationship with the performances of duties

specified by the contract).

B. Dismissal Is Appropriate.

Google argues that dismissal, rather than a stay, is appropriate because all

Amadasun’s claims are covered by the arbitration agreement.20 Though he did not

request a stay, Amadasun opposes dismissal.21 District courts in this circuit

disagree as to whether dismissal is permissible under the FAA. See Valiente v.

Holiday CVS, LLC, No. 20-CV-20382, 2020 WL 2404701, at *2 (S.D. Fla. May 12, 2020)

(discussing split of authority and collecting cases). Some courts find that the clear

language of Section 3 of the FAA requires courts to stay, rather than dismiss, a case

when compelling arbitration. See e.g., Coker v. Instant Checkmate, LLC, No. 1:19-CV-

736-TFM-B, 2020 WL 71271, at *1 (S.D. Ala. Jan. 7, 2020) (noting that Section 3 of

the FAA provides that federal courts “shall on application of one of the parties

stay” the proceeding where any issue is referable). These cases find support in

Bender v. A.G. Edwards & Sons, Inc., in which the Eleventh Circuit found error in

the court’s dismissal, noting that “[u]pon finding that a claim is subject to an

20 ECF 4-1, at 13.

21 ECF 8, at 12.

arbitration agreement, the court should order that the action be stayed pending

arbitration.” 971 F.2d 698, 699 (11th Cir. 1992).

However, other courts have found that dismissal is appropriate when all

claims are subject to arbitration. Caley v. Gulfstream Aerospace Corp., 333 F. Supp.

2d 1367, 1379 (N.D. Ga. 2004) (quoting Alford v. Dean Witter Reynolds, Inc., 975 F.2d

1161, 1164 (5th Cir. 1992) (“The weight of authority clearly supports dismissal of

the case when all of the issues raised in the district court must be submitted to

arbitration.”)), aff’d, 428 F.3d at 1359. Distinguishing Bender, the Eleventh Circuit

has also indicated that a stay is only mandatory when, among other things, one of

the parties applies for a stay. United Steel, Paper & Forestry, Rubber, Mfg., Energy,

Allied Indus. & Serv. Workers Int’l Union AFL-CIO-CLC v. Wise Alloys, LLC, 807 F.3d

1258, 1268 (11th Cir. 2015) (“[S]ection 3 qualifies the mandatory nature of any stay

it authorizes by requiring a party to apply for the stay.”). See also Lambert, 544 F.3d

at 1195 (noting court must “either stay or dismiss” a case when parties are bound

by arbitration agreement) (emphasis added). The Eleventh Circuit has, in fact,

upheld several orders dismissing claims and compelling arbitration. See, e.g., Caley,

428 F.3d at 137 (“[T]he district court properly granted defendants’ motions to

dismiss and to compel arbitration.”).

The Court agrees with the latter approach and finds that dismissal is

appropriate here. Amadasun did not request that the Court enter a stay and each

of his claims relates to the advertising program and, therefore, is subject to

arbitration. Moreover, neither party believes that this Court is the appropriate

forum for Amadasun’s claim. Amadasun argues that the Superior Court of Fulton

County is the appropriate forum,22 and Google argues that, if the claims are not

arbitrable, the appropriate venue is the Northern District of California.23 Dismissal

is appropriate under these circumstances.

III. Conclusion

Google’s motion to dismiss and compel arbitration [ECF 4] is GRANTED.

Amadasun’s motion to remand [ECF 7] and Google’s alternative requests for relief

are DENIED AS MOOT. Amadasun’s claims are DISMISSED WITHOUT

PREJUDICE. The Clerk is DIRECTED to close this case. Amadasun is ORDERED

22 ECF 7.

23 EFC 4-1, at 20–23.

to submit his claims to binding arbitration in compliance with the terms of the

Google Ads program.

SO ORDERED this 19th day of July, 2022.

Steven D. Grimberg

United States District Court Judge