Doshier et al v. Twitter Inc

Filing 28

ORDER granting 3 motion to transfer venue; and directing the Clerk to transfer this case immediately to the Northern District of California. Signed by Judge Kristine G. Baker on 9/27/2019. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
WILLIAM F. DOSHIER and DOTSTRATEGY, CO.
v.

PLAINTIFFS

Case No. 4:18-cv-00700-KGB

TWITTER, INC.

DEFENDANT
ORDER

Before the Court is a motion to dismiss under Federal Rule of Civil Procedure 12(b)(3), or,
alternatively, to transfer venue under 28 U.S.C. § 1404(a) filed by defendant Twitter, Inc.
(“Twitter”) (Dkt. No. 3). Plaintiffs William F. Doshier and dotStrategy, Co. (“dotStrategy”)
responded in opposition to the motion (Dkt. No. 5). Twitter filed a reply in further support of its
motion (Dkt. No. 11). Plaintiffs filed a surreply (Dkt. No. 18). For the following reasons, in the
interest of justice, the Court grants the motion to transfer venue (Dkt. No. 3).
I.

Procedural Background

Plaintiffs filed their complaint initially in the Circuit Court of Faulkner County, Arkansas
(Dkt. No. 2). Twitter removed this action to this Court on September 21, 2018 (Dkt. No. 1).
Twitter then filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(3) or,
alternatively, to transfer venue under 28 U.S.C. § 1404(a) (Dkt. No. 3). Plaintiffs oppose the
motion. Twitter asserts that venue is improper in this Court and that the Court should either dismiss
this case or transfer it to the Northern District of California pursuant to 28 U.S.C. § 1404(a).
Plaintiffs requested limited jurisdictional discovery regarding venue, but this Court by separate
Order denied that request (Dkt. Nos. 15, 26). For the following reasons, the Court determines that
this case should be transferred to the Northern District of California.

II.

Analyzing Venue

Federal Rule of Civil Procedure 12(b)(3) permits a party to raise the defense of improper
venue by motion. In considering a motion to dismiss, the pleadings are construed in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Ambiguities must be resolved in favor of the nonmoving party. See Dakota Indus., Inc. v. Dakota
Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991). The moving party has the burden of
establishing that venue is improper. United States v. Orshek, 164 F.2d 741, 742 (8th Cir. 1947).
A.

Venue Generally

“[V]enue of all civil actions brought in district courts of the United States” is governed by
28 U.S.C. § 1391, which states:
A civil action may be brought in—
(1) a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
Venue is proper in any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action only if there is no district in which an action may
otherwise be brought as provided in § 1391. This means that the Court must determine whether
venue is appropriate under subsections (1) and (2) of § 1391(b) before looking to subsection (3) to
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determine if venue is proper. Further, where there are multiple claims involved, unless the doctrine
of “pendent venue” applies, venue must be proper as to each claim. See Bredberg v. Long, 778
F.2d 1285, 1288 (8th Cir. 1985); Travis v. Anthes Imperial Ltd., 473 F.2d 515, 528 (8th Cir. 1973).
With respect to § 1391(b)(1), the venue statute provides that a “natural person . . . [is]
deemed to reside in the judicial district in which that person is domiciled,” and “an entity with the
capacity to sue and be sued . . . [is] deemed to reside, if a defendant, in any judicial district in
which such defendant is subject to the court’s personal jurisdiction with respect to the civil action
in question.” 28 U.S.C. § 1391(c)(1), (2). The court looks to the time the claim arose to determine
the propriety of venue when an entity is involved. Great Am. Ins. Co. v. Louis Lesser Enters., Inc.,
353 F.2d 997, 1001 (8th Cir. 1965).
With respect to § 1391(b)(2), “[t]he statute does not posit a single appropriate district for
venue; venue may be proper in any of a number of districts, provided only that a substantial part
of the events giving rise to the claim occurred there,” Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir.
1995) (citing Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir. 1994)), or that “a
substantial part of property that is the subject of the action is situated” there, 28 U.S.C. §
1391(b)(2). The question is not which is the “best” venue, but “whether the district the plaintiff
chose had a substantial connection to the claim, whether or not other forums had greater contacts.”
Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 563 (8th Cir. 2003) (citing Setco, 19 F.3d at
1281).
B.

Where Twitter Resides And Where The Claims Occurred

Twitter contends that it is not a resident of Arkansas within the meaning of § 1391(c) (Dkt.
No. 4, at 14). Further, Twitter asserts that the acts forming the basis of plaintiffs’ claims did not
occur in the Eastern District of Arkansas (Id., at 16-21).

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A defendant is deemed a resident under § 1391 in any district in which “such defendant is
subject to the court’s personal jurisdiction. . . .” 28 U.S.C. § 1391(c)(2). Arkansas’s long arm
statute is consistent with federal constitutional law and permits personal jurisdiction to the
maximum extent allowed by the Due Process Clause of the Fourteenth Amendment. Yanmar Co.,
Ltd. v. Slater, 386 S.W.3d 439, 443 (Ark. 2012); Ark. Code Ann. § 16-4-101(B). Therefore, the
only question is whether Twitter can be subjected to personal jurisdiction in Arkansas without
offending the Due Process Clause of the Constitution.
Due process requires that the defendant “have certain minimum contacts with [the forum
state] such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotations
omitted). Courts must consider the “quality and nature” of the defendant’s activities. Id. at 319.
Personal jurisdiction does not exist when the forum state “has no contacts, ties, or relations” to the
defendant. Id. The Supreme Court has held that “it is essential in each case that there be some act
by which the defendant purposefully avails itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357
U.S. 235, 253 (1958).

In World-Wide Volkswagen Corp. v. Woodson, the Supreme Court

concluded that “the defendant’s conduct and connection with the forum State” were such that he
could “reasonably anticipate being haled into court there.” 444 U.S. 286, 297 (1980). “This
‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction
solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated,’ contacts.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985) (citations omitted).
When deciding a personal jurisdiction issue, this Court considers five factors to determine
the sufficiency of a defendant’s contacts, with “the first three factors being of primary importance.”

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Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir. 1996). The five factors
as identified by the Eighth Circuit Court of Appeals are: “(1) the nature and quality of the contacts
with the forum state; (2) the quantity of the contacts with the forum; (3) the relation of the cause
of action to these contacts; (4) the interest of the forum state in providing a forum for its residents;
and (5) the convenience of the parties.” Digi-Tel Holdings, Inc. v. Proteq Telecomms. (PTE), Ltd.,
89 F.3d 519, 522-23 (8th Cir. 1996) (footnote omitted). The first three factors are closely related
and can be considered together. Id. at 523.
Courts have elaborated on the third factor—the relationship of the cause of action to the
contacts—to distinguish between general and specific jurisdiction. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984). “General jurisdiction . . . refers to the power
of a state to adjudicate any cause of action involving a particular defendant, regardless of where
the cause of action arose.” Sondergard v. Miles, Inc., 985 F.2d 1389, 1392 (8th Cir. 1993).
General jurisdiction is appropriate for a non-resident corporate defendant whenever a corporate
defendant’s “affiliations with the State are so continuous and systematic as to render it essentially
at home in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 138-39 (2014) (internal
quotations omitted). Typically, a corporate defendant is “essentially at home” in the state of its
incorporation or in the state in which it has its principal place of business. Id. at 137. On the other
hand, specific jurisdiction is proper “only if the injury giving rise to the lawsuit occurred within or
had some connection to the forum state, meaning that the defendant purposely directed its activities
at the forum state and the claim arose out of or relates to those activities.” Steinbuch v. Cutler,
518 F.3d 580, 586 (8th Cir. 2008) (citing Burger King, 471 U.S. at 472).

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1.

General Jurisdiction Is Lacking

Twitter is a Delaware corporation with its principal place of business in San Francisco,
California, and therefore resides outside of the Eastern District of Arkansas. Twitter maintains
that it has no employees or offices in Arkansas and that it does not own any real property in
Arkansas (Dkt. No. 4, at 16). On the record before the Court, the Court declines to find that Twitter
has sufficient minimum contacts with the State of Arkansas to subject it to general jurisdiction in
the State of Arkansas.
2.

Specific Jurisdiction Is Lacking

Further, Twitter asserts that the acts forming the basis of plaintiffs’ claims did not occur in
the Eastern District of Arkansas. Twitter maintains that plaintiffs do not and cannot allege that
Twitter targets its platform at Arkansas and that, even if plaintiffs could make such a showing,
plaintiffs’ claims do not arise out of any Twitter action purportedly targeting Arkansas (Dkt. No.
4, at 16-19). As a result, Twitter maintains that this Court lacks specific jurisdiction and venue.
Plaintiffs contend that this Court should apply the analytical model set out in Zippo
Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), to determine
whether Twitter’s platform, which is a website, provides sufficient contacts for specific personal
jurisdiction. See Lakin v. Prudential Sec., Inc., 348 F.3d 704, 711 (8th Cir. 2003). Applying this
model, plaintiffs maintain that Twitter does business over the internet by contracting with
Arkansas advertisers and by distributing those advertisements to Arkansas residents who use the
Twitter platform (Dkt. No. 6, at 29-30).
On the record before the Court, the Court declines to find that the acts that plaintiffs allege
form the basis of this litigation occurred in the Eastern District of Arkansas. The Court also

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determines that, based on the contacts alleged, the Court cannot exercise specific personal
jurisdiction over Twitter.
Plaintiffs Mr. Doshier and dotStrategy are residents of the Eastern District of Arkansas
(Dkt. No. 2, ¶¶ 73, 74). Plaintiffs purport to represent “all other similarly situated” in this
purported class action (Id., at 1). Mr. Doshier and the class members “acknowledge they entered
into a binding agreement” with Twitter and reference the Twitter Master Services Agreement
(“MSA”) (Id., ¶¶ 135-36). Plaintiffs also refer to the “Advertise on Twitter” page and its contents
(Id., ¶¶ 38-43). Plaintiffs placed ads or Promoted Tweets on Twitter to market products or services
to other Twitter users (Id., ¶ 44). Plaintiffs bring claims for violations of Arkansas Code Annotated
§ 4-88-107, § 4-75-201 et seq., and § 4-75-309, alleging breach of contract and common law fraud
under Arkansas law (Id., ¶ 68).
Plaintiffs assert:
140. There are multiple events that give rise to the claims in this matter,
as there are multiple Class members, each with at least one or more ads. The events
giving rise to Twitter’s liability in this matter are the same across the Class. Each
and every Engagement for which Doshier and Class members have been charged
by Twitter is its own stand alone event giving rise to the claims in this matter.
141. Hence, each ad, or Promoted Tweet, in which Doshier and Class
members were charged by Twitter for fake engagements, will also be its own stand
alone event giving rise to the claim for that specific ad, as Twitter invoiced Doshier
and Class members for the total cost of each specific ad.
(Id., ¶ 140-41). According to plaintiffs, Twitter defines an Engagement for a Promoted Tweet as
“[t]he number of clicks, retweets, likes, follows and replies on a Promoted Tweet.” (Id., ¶ 18).
Plaintiffs maintain that they, as Self-Serve Advertisers, should not be obligated to pay for fake
Engagements but instead should only pay for real users to follow an account or retweet, like, reply,
or click on a Promoted Tweet (Id., ¶¶ 16-17).

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When applying § 1391(b)(2) to determine where the acts forming the basis of plaintiffs’
complaint occurred, the Eighth Circuit Court of Appeals has determined that courts should focus
on the defendant’s allegedly wrongful or relevant activities in the forum state, not on the effect of
those activities on plaintiffs in the forum state. Steen v. Murray, 770 F.3d 698, 703 (8th Cir. 2014)
(examining the holding in Woodke, 70 F.3d at 985).
Here, plaintiffs assert both breach of contract and common law fraud claims. To the extent
plaintiffs assert breach of contract claims, Twitter maintains that the parties entered into valid
forum selection and choice of law provisions in the Terms of Service (the “TOS”) and the MSA
(Dkt. No. 4, at 9-12). “Although a forum-selection clause does not render venue in a court ‘wrong’
or ‘improper’ under [28 U.S.C.] § 1406(a) or Rule 12(b)(3), the clause may be enforced through a
motion to transfer under § 1404(a).” Atl. Marine Constr. Co. v. U.S. Dist. Court for the W. Dist.
of Tex., et al., 571 U.S. 49, 59 (2013).
Given that plaintiffs allege that each Engagement and charge by Twitter is its own event
giving rise to plaintiffs’ claims, the Court concludes that a substantial part of the events or
omissions giving rise to plaintiffs’ claims did not occur in this district. Although the harm might
have been felt by Mr. Doshier and dotStrategy in this district, their contracting with Twitter
occurred electronically with Twitter’s principal place of business in California; the Engagement
occurred wherever the Twitter user retweeted, liked, replied, or clicked; and Twitter initiated the
charges about which plaintiffs complain likely at its principal place of business in California.
In fact, Twitter maintains that its self-serve advertising platform was created and is
maintained in California; that its efforts to identify real from fake users and to suspend fake
accounts was developed and is implemented by employees in California; that Twitter’s website,
the source of many of the allegedly deceptive statements according to plaintiffs, was created and

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is maintained in California; and that Twitter’s allegedly improper billing practices challenged by
plaintiffs were developed and are maintained in California (Dkt. No. 4, at 17). Twitter has operated
a website and advertising platform that is accessible nationwide, with no specific targeting by
Twitter of Arkansas residents. These contacts are not sufficient even for specific jurisdiction in
this context.
Because the only facts alleged in the complaint that provide a link to Arkansas describe
actions taken by plaintiffs, the Court declines to find specific personal jurisdiction over Twitter.
See Walden v. Fiore, 571 U.S. 277, 285 (2014) (rejecting contention that plaintiff alone can
establish the link between the defendant and the forum and determining that defendant’s conduct
must form the necessary connection with the forum for the basis of jurisdiction); Fastpath, Inc. v.
Arbela Techs. Corp., 760 F.3d 816, 823 (8th Cir. 2014) (“[T]he plaintiff cannot be the only link
between the defendant and the forum.”) (citation omitted). The contacts between Twitter and the
forum state must be contacts that defendant Twitter creates, not the unilateral activity of persons
other than the defendant, including plaintiffs. Walden, 571 U.S. at 284-86. Contacts initiated by
Twitter must form the necessary connection with the forum state to provide the basis for the
Court’s jurisdiction. Id.
C.

Applicability of § 1391(b)(3)

Twitter also contends that § 1391(b)(3) does not apply because most of the alleged acts or
omissions giving rise to plaintiffs’ claims took place in the Northern District of California, where
Twitter resides (Dkt. No. 4, at 21). This Court agrees. As a result, venue is proper in that district,
making § 1391(b)(3) inapplicable here. 28 U.S.C. § 1391(b)(3).
For all of these reasons, the Court concludes that venue in the Eastern District of Arkansas
is not proper under § 1391.

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III.

Transferring Venue

Pursuant to § 1406(a), if the court determines that venue is improper and that the case has
been filed in the wrong division or district, the court “shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which it could have been brought.” 28
U.S.C. § 1406(a); see also Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962) (examining
application of this provision). Although Twitter seeks dismissal due to improper venue, plaintiffs
request transfer under this provision, if the Court determines that venue is improper in the Eastern
District of Arkansas (Dkt. No. 5, ¶ 4).
Even if venue is proper in this district, pursuant to § 1404(a), “[f]or the convenience of
parties and witnesses, and in the interest of justice” the court may transfer a case to any other
district or division where it might have been brought or to any district or division to which all
parties have consented. 28 U.S.C. § 1404(a). Here, along with requesting dismissal under Rule
12(b)(3), Twitter requests in the alternative a transfer of venue to the United States District Court
for the Northern District of California, if the Court determines that venue in the Eastern District of
Arkansas is proper. The Court determines that transfer is warranted.
Twitter maintains that the parties entered into valid forum selection and choice of law
provisions in the TOS and MSA (Dkt. No. 4, at 9-12). The TOS provides that “all disputes related
to the TOS or Twitter’s services “will be brought solely in the federal or state courts located in San
Francisco County, California” and will be governed by the laws of the State of California (Id., at
7). Further, according to Twitter, to place the advertisements at issue, plaintiffs also agreed to
Twitter’s MSA which also provides that “any dispute relating” to the MSA or between Twitter and
the advertiser must be brought in San Francisco, California, and will be governed by California
law (Id., at 7-8). Twitter asks the Court to enforce these provisions, determine that they are

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applicable to plaintiffs’ claims, and transfer the case to the Northern District of California (Id., at
22-27). Plaintiffs contend that the TOS and MSA do not control this action and should not apply.
Plaintiffs argue, among other things, that the MSA does not contain a forum selection clause and
that Twitter breached any such agreement first thereby rendering the agreement unenforceable as
to plaintiffs (Dkt. No. 6, at 4-26).
The Eighth Circuit Court of Appeals “has expressed its inclination to find that federal law
governs resolution of [the enforceability of a forum selection clause] in diversity cases.” U.S.
Bank Nat'l Ass'n v. San Bernardino Pub. Emps.' Ass'n, No. 13–2476, 2013 WL 6243946, at *2 (D.
Minn. Dec. 3, 2013) (citing Rainforest Café, Inc. v. EklecCo, L.L.C., 340 F.3d 544, 546 (8th Cir.
2003)); see also Atl. Marine Constr. Co., 571 U.S. at 59-61. Further, “[t]he parties do not argue
that the outcome differs depending on the law applied, and so the [c]ourt evaluates the clause[s]
under federal law.” U.S. Bank Nat'l Ass'n, 2013 WL 6243946, at *2 (citation omitted).
“Forum selection clauses are prima facie valid and are enforced unless they are unjust or
unreasonable or invalid for reasons such as fraud or overreaching.” M.B. Rests., Inc. v. CKE Rests.,
Inc., 183 F.3d 750, 752 (8th Cir. 1999) (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1,
15 (1972)). When “the forum selection clause is the fruit of an arm’s-length negotiation, the party
challenging the clause bears an especially heavy burden of proof to avoid its bargain.” Servewell
Plumbing, LLC v. Fed. Ins. Co., 439 F.3d 786, 789 (8th Cir. 2006) (citation and internal quotation
marks omitted). “A forum selection clause is unjust or unreasonable if: (1) the clause is the
product of fraud or overreaching; (2) the party would effectively be deprived of his day in court if
the clause is enforced; and (3) enforcing the clause would contravene the public policy of the forum
in which suit is brought.” St. Jude Med., S.C., Inc. v. Biosense Webster, Inc., No. 12–621, 2012
WL 1576141, at *3 (D. Minn. May 4, 2012) (citations omitted). “[T]he forum clause should

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control, absent a strong showing that it should be set aside by the party resisting enforcement.”
U.S. Bank Nat'l Ass'n, 2013 WL 6243946, at *2 (citation and internal quotation marks omitted).
Having considered the parties’ arguments and authorities cited, the Court concludes that
transfer to the Northern District of California is warranted under § 1406(a), or in the alternative
under § 1404(a), based on the facts and circumstances presented.
IV.

Conclusion

The Court determines that venue in the Eastern District of Arkansas is improper as to
Twitter and that transfer is appropriate under § 1406(a). Even if venue in the Eastern District of
Arkansas is proper, the Court determines that transfer is appropriate under § 1404(a). The Court
directs the Clerk to transfer this case immediately to the Northern District of California.
So ordered this the 27th day of September, 2019.

Kristine G. Baker
United States District Judge

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