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Lewis v. Google. Inc.

United States District Court, D. Colorado

December 31, 2019

BOB LEWIS, Plaintiff,
GOOGLE, INC., a Delaware Corporation, and YOUTUBE, LLC, a Delaware Corporation, Defendants.


          William J. Martínez, Judge.

         Plaintiff Bob Lewis (“Plaintiff”) sues Google, Inc., and YouTube, LLC (together, “Defendants”) for various causes of action arising from YouTube's alleged discrimination against Plaintiff, “specifically by arbitrarily and maliciously demonetizing [his] videos, algorithmic limiting the discovery of LEWIS' channel and videos on their platform, and deleting [his] YouTube channel, Misandry Today.” (ECF No. 19 ¶ 1.)

         Before the Court is Defendants' Motion to Transfer Venue. (ECF No. 29.) Defendants ask the Court to transfer this case to the United States District Court for the Northern District of California. For the reasons explained below, Defendant's motion is granted

         I. BACKGROUND

         The currently operative complaint is Plaintiff's Second Amended Complaint (ECF No. 19), which incorporates exhibits filed with Plaintiff's original complaint (ECF No. 1). The Second Amended Complaint makes numerous attacks on YouTube's Terms of Service. (See, e.g., ECF No. 19 ¶¶ 81-84, 89, 116, 201.) Exhibit S to the original complaint is a PDF rendering of those Terms of Service. (ECF No. 1-19.) The Terms of Service state, among other things, 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.” (Id. § 14.) The Court will refer to this as the “Forum Selection Clause.”


         “For 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.” 28 U.S.C. § 1404(a). Normally, the party moving to transfer a case pursuant to § 1404(a) bears the burden of establishing that the existing forum is inconvenient. See Chrysler Credit Corp. v. Cnty. Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991). Moreover, “[i]n the typical case not involving a forum-selection clause, a district court considering a § 1404(a) motion (or a forum non conveniens motion) must evaluate both the convenience of the parties and various public-interest considerations.” Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 62 (2013) (“Atlantic Marine”); see also Chrysler Credit Corp., 928 F.2d at 1516 (setting out factors courts consider in “an individualized, case-by-case consideration of convenience and fairness” (internal quotation marks omitted)). “Ordinarily, the district court would weigh the relevant factors and decide whether, on balance, a transfer would serve ‘the convenience of parties and witnesses' and otherwise promote ‘the interest of justice.'” Atlantic Marine, 571 U.S. at 62-63 (quoting § 1404(a)).

         The calculus changes, however, when the parties have a contract containing a valid forum-selection clause, which “represents the parties' agreement as to the most proper forum.” Id. (internal quotation marks omitted). “[A] valid forum-selection clause should be given controlling weight in all but the most exceptional cases.” Id. (certain alterations incorporated; internal quotation marks omitted). As relevant here, the Supreme Court holds that “[t]he presence of a valid forum-selection clause requires district courts to adjust their usual § 1404(a) analysis” in two ways:

First, the plaintiff's choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. . . .
Second, a court evaluating a defendant's § 1404(a) motion to transfer based on a forum-selection clause should not consider arguments about the parties' private interests. When parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. A court accordingly must deem the private-interest factors to weigh entirely in favor of the preselected forum . . . . [¶] As a consequence, a district court may consider arguments about public-interest factors only. Because those factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases.

Id. at 63-64 (internal quotation marks and citations omitted).

         III. ANALYSIS

         A. Validity of the Forum Selection Clause

         The Court's analysis-whether to apply the standard § 1404(a) factors and burdens, or to apply the factors and burdens required under Atlantic Marine-turns on whether the Forum Selection Clause is valid. Plaintiff makes numerous attacks on the Terms of Service generally. (See ECF No. 33-1.) The question, however, is whether the Forum Selection Clause (not the contract as a whole) is valid. Bowers v. TensionInt'l, Inc., 2016 WL 3181312, at *3 (D. Colo. June 8, 2016). Plaintiff's only attack that comes somewhat close to an attack on the Forum Selection Clause is to point out another part of the Terms of Service which says that “YouTube may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you ...

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