The opinion of the court was delivered by: Judge Robert E. Blackburn
ORDER DENYING HAMOT MEDICAL CENTER'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(2)
The matter before me is defendant Hamot Medical Center's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(2) [#11], filed December 13, 2005. I deny the motion.
I have subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1332 (diversity of citizenship), and 1367 (supplemental jurisdiction).
Defendant seeks to dismiss this action on the ground that this court lacks personal jurisdiction over them. See FED.R.CIV.P. 12(b)(2). When the issue is contested, the burden is on the plaintiff to prove that jurisdiction exists. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). Nevertheless, at this early stage of the litigation, that burden is light, and when, as here, the motion to dismiss is decided on the papers, the plaintiff need make only a prima facie showing that jurisdiction exists. Id. The non- conclusory averments of the complaint must be taken as true to the extent they are not contradicted by the defendant's affidavits, and all factual disputes must be resolved in favor of the plaintiff. Id.
Plaintiff Health Grades, Inc., is a Delaware corporation headquartered in Golden, Colorado, that publishes ratings and other information about hospitals, physicians, and other healthcare providers on its Internet website. In early 2005, defendant, Hamot Medical Center, a hospital located in Erie, Pennsylvania, learned that it had received various awards from plaintiff. Defendant's vice president of corporate communications, Charles Hagerty, went to plaintiff's website, where he paid for and received copies of the reports pertinent to defendant.
In order to access those reports, Hagerty first was required to "click through" a text box containing a Limited License and User Agreement (the "User Agreement"). The text box itself measured approximately three by six inches and showed eight to twelve lines of the text of the User Agreement at one time. The viewer could scroll down through the document in the text box or print the entire document via a hyperlink found at the bottom left-hand corner of the same screen. The User Agreement contains the following relevant language:
This User Agreement is made in, and will be construed and enforced in accordance with, Colorado law (without regard to its provisions governing conflicts of law), as applied to agreements entered into and completely performed in Colorado. Any action arising out of the content of this Site, your use of the Site Materials, or any action to enforce this User Agreement will be brought only in the federal or state courts presiding in Denver, Colorado, U.S.A., and both parties expressly agree to be subject to the jurisdiction of such courts. (Plf. Resp. App., Exh. A-1 at 7, ¶ 18.) This language is located near the end of the document, on the last of seven printed pages. Asked if he agreed to the terms of the User Agreement, Hagerty clicked on a button marked "Yes" and was then allowed access to the reports.
Plaintiff claims now that defendant has used its information in violation of the User Agreement and its federal copyright and trademark rights. Based on the forum selection clause of the User Agreement, plaintiff filed suit in the District Court of the City and County of Denver, Colorado. Defendant removed the case to this court, and now seeks to dismiss, arguing that it does not have the requisite minimum contacts necessary to support the assumption of personal jurisdiction over it in this forum. See International Shoe Co. v. State of Washington, Office of Unemployment Compensation & Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Kuenzle v. HTM Sport-Und Freizeitgeräte AG, 102 F.3d 453, 455 (10th Cir. 1996). Alternatively, defendant maintains that even if it minimum contacts exist, it would offend traditional notions of fair play and substantial justice to subject it to suit in this jurisdiction. See Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987); Benally v. Amon Carter Museum of Western Art, 858 F.2d 618, 626 (10th Cir. 1988).
The problem with framing the argument in this manner is that defendant's concession to the terms of the User Agreement, including the forum selection clause, makes the due process minimum contacts analysis irrelevant. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14, 105 S.Ct. 2174, 2182 n.14, 85 L.Ed.2d 528 (1985) (forum selection clause gives express or implied consent to jurisdiction of the court, and enforcement of such provisions does not offend due process); Electronic Realty Associates, L.P. v. Vaughan Real Estate, Inc., 897 F.Supp. 521, 523 (D. Kan. 1995) ("To the extent that parties have consented to personal jurisdiction in a certain forum, application of a forum state's long-arm statute and analysis of a party's contacts with the forum state are unnecessary."). Forum selection clauses are prima facie valid, and a party contesting that presumption bears a heavy burden of proof. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 957 (10th Cir.), cert. denied, 113 S.Ct. 658 (1992). Such clauses are to be enforced absent a clear showing of fraud or overreaching, or that enforcement would be unreasonable or unjust. M/S Bremen, 92 S.Ct. at 1916. This same rule applies equally to negotiated and form contracts. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 1528, 113 L.Ed.2d 622 (1991) ("[F]orum-selection clauses in form passage contracts are subject to judicial scrutiny for fundamental fairness.").*fn1
Defendant presents two principal arguments in an attempt to surmount the presumptive validity of the forum selection clause. First, it argues that litigating this matter in Colorado would be inconvenient, since its operations are confined to the greater Erie, Pennsylvania, area. Contrary to defendant's argument, the factors to be assessed when considering whether the assumption of personal jurisdiction offends traditional notions of fair play and substantial justice under an International Shoe analysis are not helpful when a party has consented to jurisdiction.*fn2 In the latter circumstance, the terms of the contract can be avoided only by showing that the inconvenience of the chosen forum is so serious that the party will effectively be deprived of its day in court by being forced to litigate there. See Carnival Cruise Lines, 111 S.Ct. at 1528; Riley, 969 F.2d at 958; Wagner International, LLC v. Mandal Alt Co., 2005 WL 1606900 at *6 (D. Colo. July 8, 2005). Defendant has failed to meet this heavy burden. Colorado is not a "remote alien forum." See Carnival Cruise Lines, 111 S.Ct. at 1528; cf. Wagner International, 2005 WL 1606900 at *7 (finding forum selection clause unenforceable where defendant located in Mongolia would be forced to litigate in Colorado). Although undoubtedly it would be more convenient for defendant to litigate this case in Pennsylvania, that fact alone is insufficient to invalidate the forum selection clause.
Second, defendant argues that it did not have actual notice of the presence of the forum selection clause in the User Agreement.*fn3 In this regard, it points out that the forum selection clause was located near the bottom of a seven-page document, only eight to twelve lines of which could be read at one time in the text box displayed on the user's computer screen. I find this argument unpersuasive. Defendant had the option to read the entire agreement before clicking on the button indicating acceptance of its terms, either by scrolling down through the text box or by clicking on the hyperlink in the lower left-hand corner of the same screen. Although the forum selection clause was near the end of the User Agreement, there is no allegation or evidence that such is an atypical location for choice-of-law provisions in contracts. The forum selection clause was in the same size font and typeface as the rest of the contract. Moreover, there is no allegation or evidence that the type of text box in which the User Agreement was displayed was not similar to those encountered routinely when purchasing goods or services over the ...