ROSEMARY M. COLLYER, United States District Judge.
Plaintiffs Song fi, Inc., Rasta Rock, Inc., Joseph N. Brotherton, and N.G.B., a six-year-old minor and son of Plaintiff Brotherton, have filed suit against Defendant YouTube, LLC, and its parent company, Google Inc., alleging that they improperly removed Plaintiffs' video from the YouTube website. Plaintiffs have also filed for a preliminary injunction to compel the reinstatement of their video on YouTube. Defendants argue that the case should be litigated in Santa Clara County, California, pursuant to the forum selection clause expressly set forth in YouTube's Terms of Service. Defendants have also moved to dismiss the Amended Complaint. The Court will transfer this case to the U.S. District Court for the Northern District of California, where Santa Clara County is located. Both Plaintiffs' motion for a preliminary injunction and Defendants' motion to dismiss will be denied without prejudice.
Defendant YouTube, LLC is wholly owned by Defendant Google, Inc. and operates as a division of Google.
The Terms of Service contain the following provisions:
YouTube Terms of Service (TOS) ¶¶ 1.A, 14, dated June 9, 2010, available at https://www.youtube.com/static?template=terms (last visited Oct. 28, 2014); see also Dkt. 8-4.
Plaintiff Song fi is a corporation with its principal place of business located in Washington D.C. that owns and distributes works of music and videos by independent musicians and filmmakers. On February 14, 2014, Song fi uploaded a video called "LuvYa LuvYa LuvYa" (hereinafter, LuvYa) onto YouTube's website. The video featured the musical group Rasta Rock Opera, as well as the performer Joseph Brotherton and his six-year-old son, N.G.B. Am. Compl. ¶¶ 3, 4, 31. On April 18, 2014, YouTube removed the video from its website and replaced it with a message reading: "This Video Has Been Removed Because its Content Violated YouTube's Terms of Service." Id. ¶ 34.
Song fi protested the removal and was then informed by YouTube that the video had been removed because of YouTube's belief that Song fi or its agents had attempted to manipulate the video's view count in violation of YouTube's terms of service. The "view count" is a feature on the YouTube website whereby, directly next to or below each item of uploaded content, there is a display of the number of times that the content has been viewed by the public. YouTube prohibits uploaders from using any kind of electronic devices (known as "robots" or "spiders") to artificially inflate the view count. These mechanisms are detected when a view count number increases at a rate exceeding that which could result from humans viewing the content on a web browser. Song fi disputed any artificial manipulation of the view count for the LuvYa video, and appealed YouTube's removal decision. However, YouTube refused to reinstate the video to its initial location.
On August 15, 2014, Song fi filed a memorandum on the question of venue [Dkt. 14], as well as an Amended Complaint [Dkt. 13] adding three new plaintiffs: Rasta Rock, Inc., Joseph Brotherton, and Mr. Brotherton's six-year old son, N.G.B. Rasta Rock is a music and film group and Mr. Brotherton is the president of Song fi, as well as an actor and performer; both, along with Mr. Brotherton's son, were featured in the LuvYa video. The Amended Complaint similarly includes claims of breach of contract, libel, and tortious interference; it newly alleges violations of the D.C. Consumer Protection Procedures Act (CPPA).
28 U.S.C. § 1391 governs venue in federal district courts, providing in relevant part that:
28 U.S.C. § 1391(b).
Under Federal Rule of Civil Procedure 12(b)(3), a defendant may, at the lawsuit's outset, test whether the plaintiff "has brought the case in a venue that the law deems appropriate." Modaressi v. Vedadi, 441 F.Supp.2d 51, 53 (D.D.C.2006). "If the plaintiff's chosen forum is an improper venue under applicable statutes, or is otherwise inconvenient, the Court may dismiss the action or transfer the case to a district where venue would be proper or more convenient." Id. (citing 28 U.S.C. § 1406 (providing for dismissal or transfer when venue is defective) and 28 U.S.C. § 1404 (allowing transfer "for the convenience of the parties and witnesses")). "Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper." Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C.2003).
"[W]hen parties have agreed to a forum selection clause, the traditional analysis is altered and ... the clause should control absent a strong showing it should be set aside." Gipson v. Wells Fargo & Co., 563 F.Supp.2d 149, 154 (D.D.C.2008) (quoting 2215 Fifth St. Assoc. v. U-Haul Int'l, Inc., 148 F.Supp.2d 50, 58 (D.D.C. 2001) (internal quotations omitted)); see also M/S Bremen v. Zapata Off-Shore Co. (The Bremen), 407 U.S. 1, 10, 12, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (holding that "[forum-selection] clauses are prima facie valid" and "should be honored by the parties and enforced by the courts"). Forum selection clauses are enforced unless the opposing party shows that one of the exceptions identified in The Bremen applies. The opponent must make a "strong showing" that (1) "enforcement would be unreasonable and unjust"; (2) "the clause was invalid for such reasons as fraud or overreaching"; (3) "enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or judicial decision"; or (4) "trial in the contractual forum would be so gravely difficult and inconvenient that [the plaintiff] will for all practical purposes be deprived of his day in court." Cheney v. IPD Analytics, LLC, 583 F.Supp.2d 108, 118 (D.D.C.2008) (quoting The Bremen, 407 U.S. at 15, 92 S.Ct. 1907) (internal quotations omitted)). The "presumption in favor of forum selection clauses" includes clauses in "non-negotiated boilerplate contracts." Gipson, 563 F.Supp.2d at 154 (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991)).
The parties dispute the enforceability of the forum selection clause in YouTube's Terms of Service, which provides 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." TOS ¶ 14. Plaintiffs make three arguments as to why this provision should not dictate venue. First, they argue that it does not apply to Plaintiffs Rasta Rock, Joseph Brotherton, and N.G.B., because they did not upload the video onto YouTube's website nor agree to the Terms of Service. Second, they maintain that the venue provision became invalid when YouTube ceased to be a "passive" website. Third, they assert that the Terms of Service are unconscionable. Plaintiffs' arguments fail.
It is immaterial that Plaintiffs Rasta Rock, Brotherton, and N.G.B. did not personally upload the LuvYa video to the YouTube website because they are closely related to Song fi, which agreed to the Terms of Service. Sabre Int'l Sec. v. Torres Advanced Enter. Solutions, LLC held that non-parties and non-signatories to an agreement may be bound by that agreement's forum selection clause if their conduct is "closely related to the contractual relationship" so that is "foreseeable that they would be bound by such clause." No. 11-806 (GK), 60 F.Supp.3d 21, 32-35, 2014 WL 3859164, at *8-9, 2014 U.S. Dist. LEXIS 81349, at *27-28 (D.D.C. June 16, 2014) ("[W]here the alleged conduct of the nonparties is closely related to the contractual relationship, `a range of transaction participants, parties and non-parties, should benefit from and be subject to forum selection clauses.'" (citing Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 456 (9th Cir.2007) and Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1299 (11th Cir.1998)); see also Kotan v. Pizza Outlet, Inc., 400 F.Supp.2d 44, 48-49 (D.D.C.2005) (rejecting corporation's argument that it should not be bound by forum selection clause in agreement to which it was not a party because corporation was established by plaintiff, who signed contract, and corporation's claims flowed out of plaintiff's interactions with defendants).
In this case, all Plaintiffs are closely related. Rasta Rock and Song fi share an office (Am.Compl.¶¶ 1-2) and have the same registered agent. See Business Filings for RastaRock Corporation and Song fi Inc., The District of Columbia Business Filings Search, available at https://corp.dcra.dc.gov/Home.aspx (last visited October 24, 2014).
Despite Plaintiffs' claims to the contrary, the venue provision is not invalidated because YouTube "actively communicated with its viewers about LuvYa" when it replaced the video with a take-down message. Pl. Mem. on the Question of Venue [Dkt. 14] at 6-7. Citing no law for their position, Plaintiffs argue that YouTube's actions in this respect somehow nullify the venue and choice of law provisions because of the following clause in the Terms of Service: "the Service shall be deemed a passive website that does not give rise to personal jurisdiction over YouTube, either specific or general, in jurisdictions other than California." TOS ¶ 14. Plaintiffs are incorrect. This clause is clearly designed to preempt assertions of jurisdiction based on contacts with a specific forum. See Sweetgreen, Inc. v. Sweet Leaf, Inc., 882 F.Supp.2d 1, 5 (D.D.C.2012) (finding that even though a company's Facebook and Twitter pages were interactive, these "passive websites alone do not provide a basis for jurisdiction"). There is simply no authority for the proposition that because YouTube took down a video pursuant to its Terms of Service, posted a message in its place, and re-uploaded the video to another location, it waived its rights to enforce the venue selection clause.
As noted above, the forum selection clause is prima facie valid. Plaintiffs make no claims that any of the Bremen exceptions apply.
Evaluating Plaintiffs' unconscionability argument involves a determination of the applicable law. A federal court is directed to apply the choice of law rules for the forum in which it sits. See A.I. Trade Finance, Inc. v. Petra International Banking Corp., 62 F.3d 1454, 1463-64 (D.C.Cir.1995). The District of Columbia choice of law doctrine generally holds "`that parties to a contract may specify the law they wish to govern, as part of their freedom to contract, as long as there is some reasonable relationship with the state specified.'" Aneke v. Am. Express Travel Related Servs., 841 F.Supp.2d 368, 375 (D.D.C.2012) (quoting Ekstrom v. Value Health, Inc., 68 F.3d 1391, 1394 (D.C.Cir.1995)). However, it would be premature to apply the choice of law provision in the Terms of Service, which requires application of California law, given Plaintiffs' argument that it is unenforceable; accordingly, "the Court must first determine the applicable law without regard to the choice-of-law provision." Signature Tech. Solutions v. Incapsulate, LLC, No. 13-0661(RBW), 58 F.Supp.3d 72, 80, 2014 WL 3522589, at *5, 2014 U.S. Dist. LEXIS 97080, at *16-17 (D.D.C. July 17, 2014).
"Under District of Columbia choice-of-law principles, [t]he absence of a true conflict compels the application of District of Columbia law by default." Id. at 80, 2014 WL 3522589, at *5, 2014 U.S. Dist. LEXIS 97080, at *17 (quotation omitted). Here, California and District of Columbia
Whether or not an agreement "is procedurally unconscionable turns on whether a party `lacked meaningful choice as to whether to enter the agreement.'" White v. Four Seasons Hotels & Resorts, 999 F.Supp.2d 250, 257 (D.D.C.2013) (quoting Fox v. Computer World Services Corp., 920 F.Supp.2d 90, 97 (D.D.C.2013) (applying D.C. law)). This is determined under the totality of the circumstances; "the court must ask whether `each party to the contract, considering his obvious education or lack of it, ha[d] a reasonable opportunity to understand the terms of the contract, or [whether] the important terms [were] hidden in a maze of fine print and minimized by deceptive [] practices.'" Fox, 920 F.Supp.2d at 98 (quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.Cir.1965)) (alterations in original). "A contract is substantively unconscionable if the contract terms are unreasonably favorable to one party" such that they are "so outrageously unfair as to shock the judicial conscience." Id. at 99 (internal quotation marks and citation omitted).
Plaintiffs argue that YouTube has "overwhelming power in its chosen market" and that Song fi, as a "small, independent music compan[y]," had no choice but to accept the Terms of Service. Pl. Mem. at 9. Though YouTube is undoubtedly a popular video-sharing website, it is not the case that Plaintiffs lacked any kind of meaningful choice as to whether to upload their video to the YouTube website and agree to the conditions set forth by YouTube. Plaintiffs could have publicized the LuvYa video by putting it on various other file-sharing websites or on an independent website. Moreover, the fact that Plaintiffs lacked bargaining power does not render the entire contract or the forum selection clause procedurally unconscionable. Fox, 920 F.Supp.2d at 98 (finding plaintiff had "meaningful choice" about whether to sign agreement even though it was presented as condition of employment without further negotiation); 2215 Fifth St. Assocs., 148 F.Supp.2d at 56 (finding forum selection clause enforceable despite "the relative disparity in the bargaining positions of the parties throughout the negotiation process" because "the presumption in favor of enforcing a forum selection clause applies even if the clause was not the product of negotiation'") (quoting Marra v. Papandreou, 59 F.Supp.2d 65, 70 (D.D.C.1999)). Nor are standardized boilerplate contracts per se unconscionable. See Forrest v. Verizon Communs., Inc., 805 A.2d 1007, 1010-11, 1013 n. 15 (D.C.2002) (finding no unconscionability in agreement accepted by clicking online button and holding that "[a] contract is no less a contract simply because it is entered into via a computer"); see also Restatement (Second) of Contracts § 208 ("It is to be emphasized that a contract of adhesion is not unconscionable per se, and that all unconscionable contracts
Plaintiffs' argument that the Terms of Service are substantively unconscionable also falls short. Plaintiffs point to several aspects of the contract, including that: YouTube may modify the Terms, discontinue service, or remove content unilaterally; it includes a warranty disclaimer, liability limitations, and an indemnification clause; and it includes a forum selection clause requiring litigation in Santa Clara, California. None of these terms, nor the contract as a whole, is "so outrageously unfair as to shock the judicial conscience." Fox, 920 F.Supp.2d at 99. Indeed, courts routinely enforce such terms in form contracts. See Forrest, 805 A.2d at 1013 n. 15, 1014 (rejecting unconscionability argument and noting numerous disclaimers in Verizon's standardized agreement).
With respect to the forum selection clause, it is not improper for YouTube to require that claims against it be brought in the non-arbitrary forum where it resides. See Pan Am Flight 73 Liaison Group v. Dave, 711 F.Supp.2d 13, 24 (D.D.C.2010) ("[T]he fact that the [agreement] may require parties from all over the world to travel to the District fails to demonstrate that enforcement of the [] forum selection clause will create the kind of grave inconvenience needed to abrogate a contractual agreement.") (applying D.C. law); National Dev. Corp. v. Fenetres MQ, 1998 WL 34313581, at *3, 1998 U.S. Dist. LEXIS 9768, at *6-7 (D.D.C. June 26, 1998) (noting that "[i]t is neither unconscionable, nor uncommon for a contracting party to bargain for the `home field' as the sole forum for contractual disputes, even when such designation may put the other party at a geographical disadvantage in litigating such a dispute" and upholding forum selection clause requiring litigation in Montreal, Canada, which was not "some arbitrary location chosen to restrict the parties' access to litigation, but is the jurisdiction where the contracting defendant is located") (citing Commerce Consultants International, Inc. v. Vetrerie Riunite S.p.A., 867 F.2d 697, 699-700 (D.C.Cir. 1989)). Furthermore, Google and YouTube's choice of forum has been found consistently enforceable. See Feldman v. Google, Inc., 513 F.Supp.2d 229, 246-48 (E.D.Pa.2007) (Google's forum selection clause was not result of fraud, overreaching, or bad faith, and was better suited for resolution in California court despite
Plaintiffs also argue that this case should not be transferred because, according to them, the CCPA "mandates venue exclusively in courts of competent jurisdiction in the District for disputes arising under that statute." Am. Compl. ¶ 12. However, CPPA claims may be brought anywhere that a court has jurisdiction, including the Northern District of California. See, e.g., Pecover v. Electronics Arts Inc., 633 F.Supp.2d 976, 984 (N.D.Cal.2009) (denying motion to dismiss plaintiffs' claims brought under CPPA); In re TFT-LCD Antitrust Litig., 586 F.Supp.2d 1109, 1125-26 (N.D.Cal.2008) (same). Moreover, CPPA claims brought in the District of Columbia may be transferred when venue is improper. See Sweetgreen, 882 F.Supp.2d at 2, 6-7 (transferring case where plaintiff alleged violations of CPPA to Virginia); Murdoch v. Rosenberg & Assocs., LLC, 2013 WL 1209144, at *1, 2013 U.S. Dist. LEXIS 40825, at *2-3 (D.Md. Mar. 22, 2013) (noting that D.C. district court transferred case, including claims under CPPA, to Maryland).
To the extent Plaintiffs argue that their CPPA claims must be brought federal court in the District of Columbia, they are incorrect. The text of the statute alone forecloses that argument, as it states that CPPA claims shall be brought in D.C.s' Superior Court, not the federal District Court for the District of Columbia. See D.C. Code § 28-3905(k)(1)(A), (k)(1)(A)(2) (providing that "[a] consumer may bring an action seeking relief from the use of a trade practice in violation of a law of the District" and that such a claim "shall be brought in the Superior Court of the District of Columbia.").
For the reasons set forth above, the case will be transferred to the U.S. District Court of the Northern District of California, where Santa Clara County is located. Plaintiffs' motion for a preliminary injunction [Dkt. 3] and Defendants' motion to dismiss [Dkt. 18] will be denied without prejudice. A memorializing Order accompanies this Memorandum Opinion.
