United States District Court, D. Colorado
ORDER GRANTING MOTION TO TRANSFER
William J. Martínez, Judge.
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.)
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
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.”
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)).
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
Id. at 63-64 (internal quotation marks and citations
Validity of the Forum Selection Clause
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 ...