Brittain,et al v. Twitter Incorporated

Filing 60

ORDER by Judge Yvonne Gonzalez Rogers granting 52 Motion for Permission for Electronic Case Filing; denying 52 Motion to Transfer Case and Setting Briefing Schedule. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 3/15/2019)

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Case 4:19-cv-00114-YGR Document 60 Filed 03/15/19 Page 1 of 6 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 CRAIG R. BRITTAIN, AN INDIVIDUAL AND U.S. SENATE CANDIDATE IN ARIZONA; AND BRITTAIN FOR U.S. SENATE, A CAMPAIGN COMMITTEE, 7 Plaintiffs, vs. 8 9 TWITTER, INC., A CALIFORNIA CORPORATION, United States District Court Northern District of California 10 CASE NO. 19-cv-00114-YGR ORDER RE: (1) GRANTING PLAINTIFFS’ MOTION FOR ELECTRONIC CASE FILING (2) DENYING PLAINTIFFS’ MOTION TO TRANSFER CASE (3) SETTING BRIEFING SCHEDULE Re: Dkt. No. 52 Defendant. 11 12 13 14 15 16 17 18 19 20 21 22 Plaintiffs Craig R. Brittain, an individual and U.S. Senate Candidate in Arizona and Brittain for U.S. Senate, a Campaign Committee (collectively, “Brittain”) bring this action against defendant Twitter, Inc. (“Twitter”). Brittain asserts eight causes of action against Twitter for: (1) violation of the First Amendment; (2) violation of federal election law; (3) breach of contract; (4) conversion, (5)violation of the antitrust; (6) negligent infliction of emotional distress; (7) tortious interference; and (8) promissory estoppel. (Dkt. No. 13.) Now before the Court is Brittain’s motion for permission for electronic case filing and to transfer this action back to the District of Arizona. (Dkt. No. 52 (“Motion”).) Twitter opposes only the motion to transfer.1 (See Dkt. No. 56 (“Opp.”).) Having carefully reviewed the papers submitted, and for the reasons set forth more fully below, the Court GRANTS plaintiff permission for electronic case filing, and DENIES plaintiff’s motion to transfer. 23 24 1 25 Finding that good cause exists, the Court GRANTS Brittain’s unopposed motion for permission for electronic case filing. Case 4:19-cv-00114-YGR Document 60 Filed 03/15/19 Page 2 of 6 1 I. BACKGROUND On June 5, 2018, Brittain filed his initial complaint in the District of Arizona, in which he 2 3 resides. (Dkt. No. 1. ¶ 36.) Defendant subsequently moved to transfer the case to the Northern 4 District of California pursuant to the forum selection clause found in Twitter’s Terms of Service 5 (“Terms”). (Dkt. No. 22.) In pertinent part, the Terms provide as follows: These Terms and any action related thereto will be governed by the laws of the State of California without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the federal or state courts located in San Francisco County, California, United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. 6 7 8 9 United States District Court Northern District of California 10 (Dkt. No. 23, Ex. C (“Terms”) at 11.) On January 4, 2019, the Arizona district court granted 11 Twitter’s motion and transferred the action to the Northern District of California (“Transfer 12 Order”). (Dkt. No. 46 (“Transfer Order”) at 2.) In so granting, the Arizona court noted that 13 Brittain had agreed to Twitter’s Terms “by affirmatively assenting to [Twitter’s] ‘clickwrap’ 14 agreement” and found that he had failed to meet his “heavy burden of showing the extraordinary 15 circumstances necessary to render the clauses unenforceable.” (Id. at 2, 7.) On February 4, 2019, Brittain moved for permission for electronic case filing and to 16 17 transfer this action back to the District of Arizona. (Motion.) On February 19, 2019, Twitter 18 responded, opposing only the motion to transfer. (See Opp.) 19 20 II. LEGAL STANDARD Once a court grants a Section 1404(a) motion and transfers an action, “the transferee court 21 should generally abide by the transferor court’s transfer decision and should not retransfer the 22 case.” Goor v. Vignoles, No. C. 12-01794 DMR, 2012 WL 5499841, at *2 (N.D. Cal. Nov. 13, 23 2012) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (finding that 24 courts “should be loathe” to reconsider a coordinate court’s decision “in the absence of 25 extraordinary circumstances such as whether the initial decision was clearly erroneous and would 2 Case 4:19-cv-00114-YGR Document 60 Filed 03/15/19 Page 3 of 6 1 work a manifest injustice”) (internal quotation marks omitted)). However, the fact that an action 2 has been transferred once does not preclude the transferee court from entertaining a subsequent 3 motion to transfer. “A motion to transfer is perfectly appropriate . . . on a showing of changed circumstances, 4 5 particularly when they frustrate the purpose of the change of venue.” Federal Practice and 6 Procedure § 3846; Ametek, Inc. v. Hewlett–Packard Co., No. C–90–20278–DLJ, 1990 WL 7 10072473, at *1 (N.D. Cal. July 10, 1990) (transferee court is not powerless to act where the 8 original purposes of the transfer have been frustrated by an unforeseeable later event). “The 9 transferee district should not retransfer ‘except under the most impelling and unusual circumstance United States District Court Northern District of California 10 or [unless] the transfer order is manifestly erroneous.’” Ametek, 1990 WL 10072473, at *1 11 (quoting United States v. Koenig, 290 F.2d 166, 173 n.11 (5th Cir. 1961)); see also Christianson, 12 486 U.S. at 816 (finding that “transferee courts that feel entirely free to revisit transfer decisions of 13 a coordinate court threaten to send litigants into a vicious circle of litigation.”). 14 15 III. DISCUSSION Brittain fails to identify any change in circumstances since the Arizona court’s Transfer 16 Order, let alone one of such an “impelling and unusual” nature so as to justify retransfer. See 17 Motion at 2; see also Ametek, 1990 WL 10072473, at *1 (quoting Koenig, 290 F.2d at 173 n.11). 18 Nor does Brittain aver that the Arizona district court so erred in enforcing Twitter’s forum 19 selection clause that the transfer order “is manifestly erroneous.” Id. Accordingly, Brittain fails to 20 establish that retransfer is appropriate in this case. See Atl. Marine, 571 U.S. at 63 (finding that 21 the party resisting a forum selection clause “bears the burden of establishing that transfer to the 22 forum for which the parties bargained is unwarranted”). 23 However, out of an abundance of caution, and in light of Brittain’s pro se status, the Court 24 reviews the Transfer Order to determine whether it “is manifestly erroneous.” Ametek, 1990 WL 25 10072473, at *1. The Arizona district court properly employed the Ninth Circuit’s three-prong 3 Case 4:19-cv-00114-YGR Document 60 Filed 03/15/19 Page 4 of 6 1 test to determine whether Twitter’s forum selection clause controls the parties’ dispute. (Transfer 2 Order at 3 (citing Yei A. Sun v. Advanced China Healthcare, Inc., 901 F.3d 1081, 1088 (9th Cir. 3 2018)).) The test provides that a forum selection clause controls a party’s dispute unless the 4 plaintiff makes a “strong showing that: (1) the clause is invalid due to ‘fraud or overreaching,’ (2) 5 ‘enforcement would contravene a strong public policy of the forum in which suit is brought, . . . or 6 (3) ‘trial in the contractual forum will be so gravely difficult and inconvenient that the 7 litigant will for all practical purposes be deprived of his day in court.’” Yei A. Sun, 901 F.3d at 8 1088 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 18 (1972)). 9 First, the Arizona court correctly found that Twitter’s Terms, to which Brittain assented United States District Court Northern District of California 10 when he registered for an account, are valid and enforceable. (Transfer Order at 4-5 (finding that 11 Brittain failed to show “that the Terms are unconscionable or illusory.”).) Second, the court 12 analyzed Brittain’s argument that enforcing the forum selection clause would contravene 13 Arizona’s public policy and found that “Arizona public policy favors enforcing forum selection 14 clauses.” (Id. at 6-7 (emphasis in original).) Third, given the current procedural posture of the 15 case and the Court’s ability to provide accommodations for pretrial matters so as not to require a 16 personal appearance, it is not clear that the Arizona court’s finding that the “fact that Brittain is a 17 self-represented, indigent litigant is no basis for not enforcing the forum selection clauses” was 18 manifestly erroneous. (Id. at 5 (citing Yei A. Sun, 901 F.3d at 1087).) However, those 19 accommodations are not necessarily available for trial. Therefore, the Court reserves on whether a 20 procedural change would render the transfer to the Northern District of California a manifest 21 injustice. The same may also apply in the discovery context. 22 Nevertheless, because Brittain fails to allege any change in circumstances following the 23 Arizona court’s Transfer Order so as to justify retransfer, and because the Arizona court’s decision 24 to so transfer was not manifestly erroneous in light of the action’s current procedural posture, the 25 4 Case 4:19-cv-00114-YGR Document 60 Filed 03/15/19 Page 5 of 6 1 2 3 Court will not transfer this action back to the District of Arizona.2 IV. CONCLUSION For the foregoing reasons, the Court DENIES Brittain’s motion to transfer venue and 4 GRANTS Brittain’s motion for permission for electronic case filing. Moreover, the Court 5 CONTINUES the briefing deadlines for defendant’s pending motion to dismiss as follows: Brittain’s 6 opposition is now due March 25, 2019 and Twitter’s reply is now due April 1, 2019. 7 Additionally, once fully briefed, the Court will deem the motion submitted without requiring a 8 personal appearance. If the Court determines that argument is necessary, it will contact to the 9 parties to schedule a hearing via telephone. Accordingly, the Court VACATES the hearing United States District Court Northern District of California 10 11 currently scheduled for April 16, 2019. Brittain is directed to follow the instructions on the Court’s website regarding pro se 12 litigants’ registration for ECF and PACER. (See 13 After registering on ECF and PACER, Brittain must file a notice of ECF registration that plaintiff 14 15 2 16 17 18 19 20 21 22 23 24 Brittain’s reliance on Verdugo v. Alliantgroup, L.P. is misplaced. (See Motion at 2 (citing 237 Cal. App. 4th 141 (Cal. Ct. App. 2015)).) In Verdugo, the California court of appeal deemed unenforceable forum selection and choice-of-law clauses that conflict with California’s public policy on employee compensation. 237 Cal. App. 4th at 144. There, an employee brought wage and hour claims based on California Labor Code unwaivable statutory rights. Id. at 150. The employee’s contract included a forum selection clause requiring her to litigate in Texas and a choice-of-law clause that applied Texas law. Id. at 145. The court held that the employee’s contract was unenforceable because it had “the potential to contravene an antiwaiver statute designed to protect California residents from business practices that do not meet Labor Code standards.” Id. at 151. First, Verdugo did not hold, as plaintiff seems to suggest, that California employees are guaranteed their choice of applicable substantive law or a forum to sue of their choice. See id. at 147 (finding that “[a] mandatory forum selection clause . . . is generally given effect unless enforcement would be unreasonable or unfair.”). Second, California’s Labor Code does not extend to Brittain because he is neither a California resident nor a Twitter employee. See Ehret v. Uber Techs., Inc., 68 F.Supp.3d 1121, 1129–30 (N.D. Cal. 2014) (finding that “California’s Supreme Court has made clear that there is a strong presumption against the extraterritorial application of California law”) (citing Sullivan v. Oracle Corp., 51 Cal.4th 1191 (2011)). Third, Brittain fails to allege that litigating his claims against Twitter in California may cause him to forego any unwaivable statutory rights available to him in Arizona. (See id.) 25 5 Case 4:19-cv-00114-YGR Document 60 Filed 03/15/19 Page 6 of 6 1 has made available an electronic mail address for service of papers electronically filed on the 2 docket. Upon filing of such notice, the Court will designate this action for the ECF program. 3 Brittain must comply with the Federal Rules of Civil Procedure and all general orders and 4 local rules pertaining to electronic filing including General Order 45 which requires in part that 5 parties must provide the judge’s chambers with a paper copy of each document that is filed 6 electronically, marked “Chambers Copy.” By registering, Brittain accepts responsibility for all 7 technical requirements and computer-related tasks associated with participation in the ECF 8 program. The Court also advises that a Handbook for Pro Se Litigants, which contains helpful 10 United States District Court Northern District of California 9 information about proceeding without an attorney, is available in the Clerk’s office or through the 11 Court’s website, Additional assistance is available through the 12 Legal Help Center. There is no fee for this service. Parties can make an appointment to speak 13 with an attorney who can provide basic legal information and assistance. The Help Center does 14 not see people on a “drop-in” basis, and will not be able to represent parties in their cases. There 15 is no charge for this service. To make an appointment with the Legal Help Center, you may: (1) 16 sign up in person on the appointment book outside the Legal Help Center offices at the San 17 Francisco Courthouse, located at 450 Golden Gate Avenue, 15th Floor, Room 2796, San 18 Francisco, California or the Oakland Courthouse, located at 1301 Clay Street, 4th Floor, Room 19 470S, Oakland, California; (2) call 415-782-8982; or (3) email 20 The Help Center’s website is available at 21 This Order terminates Docket Number 52. 22 IT IS SO ORDERED. 23 Dated: March 15, 2019 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 24 25 6

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