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Brittain v. Twitter Inc.

United States District Court, D. Arizona

January 4, 2019

Craig R. Brittain, an individual and U.S. Senate candidate in Arizona; and Brittain for U.S. Senate, a campaign committee, Plaintiffs,
v.
Twitter Inc., a California corporation, Defendant.

          ORDER

          David G. Campbell Senior United States District Judge

         Defendant 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.

         I. Background.

         Plaintiff 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.

         When 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.

         II. Legal Standard.

         Section 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)).

         When 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.[1]

         In 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)).

         III. Discussion.

         When 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.

         Brittain 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.[2] Brittain makes several arguments as to why the forum selection clauses should not be enforced. Doc. 27. None has merit.

         A. Validity of the Contract.

         The 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 ...


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