United States District Court, D. Arizona
Craig R. Brittain, an individual and U.S. Senate candidate in Arizona; and Brittain for U.S. Senate, a campaign committee, Plaintiffs,
Twitter Inc., a California corporation, Defendant.
G. Campbell Senior United States District Judge
Twitter, Inc. has filed a motion to transfer venue. Doc. 22.
The motion is fully briefed. Docs. 27, 30, 33.
Plaintiffs' request for a hearing is denied because oral
argument will not aid the Court's decision. See
Fed. R. Civ. P. 78(b). For reasons stated below, the Court
will grant the motion.
Craig Brittain was a candidate for an Arizona U.S. Senate
seat in the 2018 election. He created several Twitter
accounts for the campaign, including @CraigRBrittain,
@AuditTheMedia, @SenatorBrittain, and @Brittain4Senate.
Twitter suspended the accounts, and Brittain filed suit. Doc.
1. His amended complaint asserts eight causes of action: (1)
First Amendment violations, (2) federal election law
violations, (3) breach of contract, (4) conversion, (5)
antitrust violations, (6) negligent infliction of emotional
distress, (7) tortious interference, and (8) promissory
estoppel. Doc. 13. Brittain alleges, among other things, that
his Twitter accounts are protected public forums and that the
unlawful suspensions resulted in the loss of 500, 000
followers. Id. ¶¶ 3-4. He seeks $1 billion
in damages, a declaration that Twitter interfered in the 2018
federal election, and an injunction preventing Twitter from
suspending or otherwise limiting access to accounts.
Id. at 9.
Brittain registered for the account online, he agreed to
Twitter's Terms of Service (“Terms”) by
affirmatively assenting to the “clickwrap”
agreement. The Terms include forum selection clauses
providing that any dispute related to the Terms or Twitter
services are to be brought solely in the federal or state
courts located in San Francisco County, California. Twitter
seeks to enforce the forum selection clauses and have this
case transferred to the United States District Court for the
Northern District of California pursuant to 28 U.S.C. §
1404(a). Doc. 22.
1404(a) provides that “[f]or the convenience of parties
and witnesses, in the interest of justice, a district court
may transfer any civil action . . . to any district or
division to which all parties have consented.” Under
this provision, the district court “[o]rdinarily . . .
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.'” Atl. Marine Constr. Co.
v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49,
62-63 (2013) (quoting § 1404(a)). When parties have
agreed to a valid forum selection clause, however, “the
calculus changes” because the clause “represents
the parties' agreement as to the most proper
forum.” Id. at 63. “For that reason, and
because the overarching consideration under § 1404(a) is
whether a transfer would promote ‘the interest of
justice,' ‘a valid forum-selection clause should be
given controlling weight in all but the most exceptional
cases.'” Id. (quoting Stewart Org.,
Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988)).
the parties have entered a forum selection clause,
“[t]he plaintiff's subsequent choice of forum
merits no weight.” Yei A. Sun v. Advanced
China Healthcare, Inc., 901 F.3d 1081, 1087
(9th Cir. 2018) (citing Atl. Marine, 571 U.S. at
63-64). All factors relating to the private interests of the
parties must be deemed “as weighing ‘entirely in
favor of the preselected forum.'” Id. at
1087-88 (quoting Atl. Marine, 571 U.S. at 64). And
while factors relating to the public interest may be
considered, “those factors will rarely defeat a
transfer motion.” Id. at 1088.
short, a forum selection clause is controlling unless the
plaintiff makes a “strong showing that: (1) the clause
is invalid due to ‘fraud or overreaching,' (2)
‘enforcement would contravene a strong public policy of
the forum in which suit is brought, . . . or (3) ‘trial
in the contractual forum will be so gravely difficult and
inconvenient that the litigant will for all practical
purposes be deprived of his day in court.'”
Id. (quoting M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 15, 18 (1972)); see Doe I v. AOL
LLC, 552 F.3d 1077, 1083 (9th Cir. 2009) (“A forum
selection clause is presumptively valid; the party seeking to
avoid a forum selection clause bears a ‘heavy
burden' to establish a ground upon which we will conclude
the clause is unenforceable.” (quoting M/S
Bremen, 407 U.S. at 17)).
the @CraigRBrittain, @AuditTheMedia, and @Brittain4Senate
Twitter accounts were created, the Terms governing the
accounts provided that “[a]ll claims, legal proceedings
or litigation arising in connection with the Services”
are to be brought in San Francisco. Doc. 23 ¶ 5.
Similarly, the Terms in effect when the @SenatorBrittain
account was created stated that San Francisco is the sole
venue for “[a]ll disputes related to these Terms or the
Services[.]” Id. ¶ 6. Each forum
selection clause provides that the account holder
“consent[s] to personal jurisdiction” in the
selected forum and “waives any objection as to
inconvenient forum.” Id. ¶¶ 5-6;
see Id. at 21, 32.
does not dispute that he voluntarily agreed to the Terms when
he created each Twitter account, that the forum selection
clauses are mandatory rather than permissive, and that his
claims fall within the scope of the clauses. Brittain makes
several arguments as to why the forum selection clauses
should not be enforced. Doc. 27. None has merit.
Validity of the Contract.
Terms contain provisions allowing Twitter, in its sole
discretion, to revise the Terms from time to time.
See Doc. 23 at 21, 32. Brittain argues that these
unilateral modification provisions render the entire Terms
unconscionable and illusory. Id. at 2-3, 6-7.
Brittain cites In re Zappos.com, Inc., Customer Data