DEBRA ANN LIVINGSTON, Circuit Judge:
Plaintiff-Appellant TradeComet.com LLC ("TradeComet") appeals from a judgment entered pursuant to an opinion and order of the United States District Court for the Southern District of New York (Sidney H. Stein, District Judge) dismissing its complaint. TradeComet brought this action against Defendant-Appellee Google, Inc. ("Google") for alleged violations of the Sherman Act, 15 U.S.C. §§ 1, 2, arising out of TradeComet's use of Google's "AdWords" search engine advertising platform ("AdWords"). Google filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and improper venue. Google argued that TradeComet had accepted the terms and conditions associated with participation in its AdWords program, which included a forum selection clause requiring TradeComet to file its suit in state or federal court in Santa Clara County, California, not in New York. TradeComet contended, inter alia, that a district court may only enforce a forum selection clause permitting an alternative federal venue pursuant to 28 U.S.C. § 1404, which authorizes transfer of the case to the agreed-upon venue, rather than through Rule 12(b). In an opinion and order dated March 5, 2010, the district court rejected this argument and concluded that Google could seek enforcement of its forum selection clause by moving to dismiss pursuant to Rule 12(b). The court then applied our four-part test for determining whether to dismiss a claim based on a forum selection clause, see Phillips v. Audio Active Ltd., 494 F.3d 378, 383-84 (2d Cir.2007), and granted Google's motion to dismiss.
Here, TradeComet renews its argument that a § 1404(a) motion to transfer is the only appropriate vehicle for enforcing a forum selection clause when the clause at issue permits an alternative federal forum. We reject TradeComet's argument and hold, consistent with our precedents, that a defendant may seek enforcement of a forum selection clause through a Rule 12(b) motion to dismiss, even when the clause provides for suit in an alternative federal forum. In a contemporaneous summary order filed with this opinion, we conclude that the district court properly applied our test in Phillips to dismiss TradeComet's complaint.
Because we are reviewing the district court's dismissal of a complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, we view the facts in the light most favorable to TradeComet. See Phillips, 494 F.3d at 384. Google, a Delaware corporation, operates a well-known Internet search engine website bearing the same name. It has its principal place of business in Mountain View, California, and is authorized to do business in the State of New York. In 2001, Google launched AdWords, an advertising platform that enables advertisers to have their ads appear when Internet users perform searches containing specified search terms on Google's website.
Google requires AdWords users to accept certain terms and conditions to activate an AdWords account. Google also requires AdWords users to agree to any subsequent modifications or additions to these terms and conditions in order to continue advertising with AdWords. Over the course of TradeComet's participation in the AdWords program, Google issued three agreements delineating its terms and conditions. Two of them contained a forum selection clause providing that "[t]he Agreement must be ... adjudicated in Santa Clara County, California." The third, effective August 2006, provided that all claims "arising out of or relating to this Agreement or the Google Program(s) shall be litigated exclusively in the federal or state courts of Santa Clara County, California."
Subsequent to the filing of TradeComet's complaint, Google filed a motion to dismiss for lack of subject matter jurisdiction and improper venue, pursuant to Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure. Google argued that the forum selection clause contained in its August 2006 terms and conditions applied to TradeComet's antitrust claims, and that the clause required TradeComet to file its suit in a state or federal court located in Santa Clara County, California. In opposing the motion, TradeComet contended, inter alia, that the district court was required to convert Google's motion to dismiss into a motion to transfer pursuant to 28 U.S.C. § 1404(a), since the forum selection clause permitted venue in a different federal forum. The district court concluded that a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(3) was a proper vehicle for enforcing a forum selection clause, and found that the August 2006 forum selection clause applied to TradeComet's antitrust claims. The district court granted Google's motion to dismiss the complaint. This appeal followed.
TradeComet primarily argues on appeal that the district court erred in dismissing its case pursuant to Rule 12(b), rather than considering whether to transfer it to an appropriate federal court pursuant to § 1404(a).
The enforcement of a forum selection clause through a Rule 12(b) motion to dismiss is a well-established practice, both in this Circuit and others. See, e.g., Phillips, 494 F.3d at 383-84; New Moon Shipping Co., Ltd. v. MAN B & W Diesel AG, 121 F.3d 24, 28 (2d Cir.1997) (citing cases). We have noted, however, that neither the Supreme Court, nor this Court, has "specifically designated a single clause of Rule 12(b)"—or an alternative vehicle—"as the proper procedural mechanism to request dismissal of a suit based upon a valid forum selection clause." Asoma Corp. v. SK Shipping Co., Ltd., 467 F.3d 817, 822 (2d Cir.2006) (internal quotation marks omitted); see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 588-89, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) (enforcing a forum selection clause through a motion for summary judgment); New Moon Shipping Co., 121 F.3d at 28 (noting that the Supreme Court in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), failed to specify whether its analysis applied to the defendant's motion to dismiss for lack of jurisdiction or for forum non conveniens). Consequently, we have "refused to pigeon-hole [forum selection clause enforcement] claims into a particular clause of Rule 12(b)." Asoma, 467 F.3d at 822. We have affirmed judgments that enforced forum selection clauses by dismissing cases for lack of subject matter jurisdiction under Rule 12(b)(1), see AVC Nederland B.V. v. Atrium Inv. P'ship, 740 F.2d 148, 152 (2d Cir.1984), for improper venue under Rule 12(b)(3), see Phillips, 494 F.3d at 382, and for failure to state a claim under Rule 12(b)(6), see Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 508 n. 6 (2d Cir.1998).
In determining whether a Rule 12(b) motion to dismiss pursuant to a forum selection clause was properly granted, we have analyzed the enforceability of such clauses by applying the standards set forth by the Supreme Court in Bremen.
To the extent TradeComet attempts to distinguish Bremen as announcing a narrow rule to be applied solely in international cases, or those arising under admiralty law, we are not persuaded. Although Bremen was an admiralty case and involved
Bremen, therefore, did not create a narrow rule holding forum selection clauses to be prima facie valid solely in admiralty cases, or those involving international agreements, but rather approved of a pre-existing favorable view of such clauses. See Evolution Online, 145 F.3d at 509 n. 10 (observing that the Supreme Court in Bremen "noted the trend of judicial acceptance of forum-limiting clauses by citing... at least one nonadmiralty case," and that it "d[id] not specifically limit the rule to admiralty cases"). We have cited Bremen in concluding that the dismissal of a complaint was proper in a variety of different contexts, including, as here, litigations involving federal antitrust claims. See Bense, 683 F.2d at 719, 720-22 (antitrust claims under the Sherman Act); see also Phillips, 494 F.3d at 381, 383-84 (claims under the Federal Copyright Act); Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1356, 1362-63 (2d Cir.1993) (claims under the Securities Act and RICO); AVC Nederland, 740 F.2d at 149, 156 (claims under the Securities Exchange Act and SEC Rule 10b-5).
TradeComet argues that a district court nevertheless errs in enforcing a forum selection clause pursuant to Bremen by granting a Rule 12(b) motion to dismiss when the clause provides for an alternative federal forum to which the matter could be transferred pursuant to § 1404(a). While admittedly most of our precedents have involved forum selection clauses specifying a foreign forum,
TradeComet argues that even if such dismissals may have been permissible prior to the Supreme Court's decision in Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988), Stewart requires a district court today to apply § 1404(a) in enforcing a forum selection clause when the clause permits suit in a federal forum other than the one in which suit has been brought. We conclude that TradeComet misreads Stewart.
Stewart did not consider the circumstances in which a defendant may seek dismissal pursuant to Rule 12(b) in order to enforce a forum selection clause. Instead, the Supreme Court addressed the question "whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a case to a venue provided in a contractual forum-selection clause."
TradeComet's reading of Stewart is further undermined by the Court's subsequent decision in Shute, where it applied the Bremen rule in an admiralty case to uphold a forum selection clause permitting suit in a federal forum. Shute, 499 U.S. at 587-88, 591-95, 111 S.Ct. 1522. The Court concluded that the case had properly been
The better reading of Stewart, one that gives effect to the Court's three decisions, is that Stewart deals with motions to transfer pursuant to § 1404(a), while Bremen and Shute address the grant of dismissal or summary judgment based on a forum selection clause. Cf. Jones, 901 F.2d at 19 ("In short, we find nothing in Stewart or anywhere else that would compel us to reject the well established rule of this Circuit that Bremen applies with equal force in diversity cases.").
For these reasons, we reaffirm our prior precedents and hold that a district court is not required to enforce a forum selection clause only by transferring a case pursuant to § 1404(a) when that clause specifies that suit may be brought in an alternative federal forum. Rather, in such circumstances, a defendant may seek to enforce a forum selection clause under Rule 12(b). The district court therefore
We emphasize the limited nature of our decision. Our focus is solely on whether a district court called upon to enforce a forum selection clause is required to enforce it pursuant to § 1404(a) whenever the clause permits suit in an alternative federal forum. Consequently, we do not address the related, but separate, question whether a district court may, sua sponte, convert a Rule 12(b) motion to dismiss into a § 1404(a) motion to transfer.
Rescuecom Corp. v. Google, Inc., 562 F.3d 123, 125 (2d Cir.2009) (internal footnote omitted).