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)

Case 4:19-cv-00114-YGR Document 60 Filed 03/15/19 Page 1 of 6

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CRAIG R. BRITTAIN, AN INDIVIDUAL AND
U.S. SENATE CANDIDATE IN ARIZONA; AND
BRITTAIN FOR U.S. SENATE, A CAMPAIGN
COMMITTEE,

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Plaintiffs,
vs.

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TWITTER, INC., A CALIFORNIA
CORPORATION,

United States District Court
Northern District of California

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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.

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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.

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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

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I.

BACKGROUND
On June 5, 2018, Brittain filed his initial complaint in the District of Arizona, in which he

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resides. (Dkt. No. 1. ¶ 36.) Defendant subsequently moved to transfer the case to the Northern

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District of California pursuant to the forum selection clause found in Twitter’s Terms of Service

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(“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.

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United States District Court
Northern District of California

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(Dkt. No. 23, Ex. C (“Terms”) at 11.) On January 4, 2019, the Arizona district court granted

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Twitter’s motion and transferred the action to the Northern District of California (“Transfer

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Order”). (Dkt. No. 46 (“Transfer Order”) at 2.) In so granting, the Arizona court noted that

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Brittain had agreed to Twitter’s Terms “by affirmatively assenting to [Twitter’s] ‘clickwrap’

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agreement” and found that he had failed to meet his “heavy burden of showing the extraordinary

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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

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transfer this action back to the District of Arizona. (Motion.) On February 19, 2019, Twitter

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responded, opposing only the motion to transfer. (See Opp.)

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II.

LEGAL STANDARD
Once a court grants a Section 1404(a) motion and transfers an action, “the transferee court

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should generally abide by the transferor court’s transfer decision and should not retransfer the

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case.” Goor v. Vignoles, No. C. 12-01794 DMR, 2012 WL 5499841, at *2 (N.D. Cal. Nov. 13,

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2012) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (finding that

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courts “should be loathe” to reconsider a coordinate court’s decision “in the absence of

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extraordinary circumstances such as whether the initial decision was clearly erroneous and would
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work a manifest injustice”) (internal quotation marks omitted)). However, the fact that an action

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has been transferred once does not preclude the transferee court from entertaining a subsequent

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motion to transfer.
“A motion to transfer is perfectly appropriate . . . on a showing of changed circumstances,

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particularly when they frustrate the purpose of the change of venue.” Federal Practice and

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Procedure § 3846; Ametek, Inc. v. Hewlett–Packard Co., No. C–90–20278–DLJ, 1990 WL

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10072473, at *1 (N.D. Cal. July 10, 1990) (transferee court is not powerless to act where the

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original purposes of the transfer have been frustrated by an unforeseeable later event). “The

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transferee district should not retransfer ‘except under the most impelling and unusual circumstance

United States District Court
Northern District of California

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or [unless] the transfer order is manifestly erroneous.’” Ametek, 1990 WL 10072473, at *1

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(quoting United States v. Koenig, 290 F.2d 166, 173 n.11 (5th Cir. 1961)); see also Christianson,

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486 U.S. at 816 (finding that “transferee courts that feel entirely free to revisit transfer decisions of

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a coordinate court threaten to send litigants into a vicious circle of litigation.”).

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III.

DISCUSSION
Brittain fails to identify any change in circumstances since the Arizona court’s Transfer

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Order, let alone one of such an “impelling and unusual” nature so as to justify retransfer. See

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Motion at 2; see also Ametek, 1990 WL 10072473, at *1 (quoting Koenig, 290 F.2d at 173 n.11).

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Nor does Brittain aver that the Arizona district court so erred in enforcing Twitter’s forum

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selection clause that the transfer order “is manifestly erroneous.” Id. Accordingly, Brittain fails to

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establish that retransfer is appropriate in this case. See Atl. Marine, 571 U.S. at 63 (finding that

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the party resisting a forum selection clause “bears the burden of establishing that transfer to the

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forum for which the parties bargained is unwarranted”).

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However, out of an abundance of caution, and in light of Brittain’s pro se status, the Court

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reviews the Transfer Order to determine whether it “is manifestly erroneous.” Ametek, 1990 WL

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10072473, at *1. The Arizona district court properly employed the Ninth Circuit’s three-prong
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test to determine whether Twitter’s forum selection clause controls the parties’ dispute. (Transfer

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Order at 3 (citing Yei A. Sun v. Advanced China Healthcare, Inc., 901 F.3d 1081, 1088 (9th Cir.

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2018)).) The test provides that a forum selection clause controls a party’s dispute unless the

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plaintiff makes a “strong showing that: (1) the clause is invalid due to ‘fraud or overreaching,’ (2)

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‘enforcement would contravene a strong public policy of the forum in which suit is brought, . . . or

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(3) ‘trial in the contractual forum will be so gravely difficult and inconvenient that the

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litigant will for all practical purposes be deprived of his day in court.’” Yei A. Sun, 901 F.3d at

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1088 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 18 (1972)).

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First, the Arizona court correctly found that Twitter’s Terms, to which Brittain assented

United States District Court
Northern District of California

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when he registered for an account, are valid and enforceable. (Transfer Order at 4-5 (finding that

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Brittain failed to show “that the Terms are unconscionable or illusory.”).) Second, the court

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analyzed Brittain’s argument that enforcing the forum selection clause would contravene

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Arizona’s public policy and found that “Arizona public policy favors enforcing forum selection

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clauses.” (Id. at 6-7 (emphasis in original).) Third, given the current procedural posture of the

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case and the Court’s ability to provide accommodations for pretrial matters so as not to require a

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personal appearance, it is not clear that the Arizona court’s finding that the “fact that Brittain is a

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self-represented, indigent litigant is no basis for not enforcing the forum selection clauses” was

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manifestly erroneous. (Id. at 5 (citing Yei A. Sun, 901 F.3d at 1087).) However, those

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accommodations are not necessarily available for trial. Therefore, the Court reserves on whether a

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procedural change would render the transfer to the Northern District of California a manifest

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injustice. The same may also apply in the discovery context.

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Nevertheless, because Brittain fails to allege any change in circumstances following the

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Arizona court’s Transfer Order so as to justify retransfer, and because the Arizona court’s decision

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to so transfer was not manifestly erroneous in light of the action’s current procedural posture, the

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Case 4:19-cv-00114-YGR Document 60 Filed 03/15/19 Page 5 of 6

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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

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GRANTS Brittain’s motion for permission for electronic case filing. Moreover, the Court

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CONTINUES the briefing deadlines for defendant’s pending motion to dismiss as follows: Brittain’s

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opposition is now due March 25, 2019 and Twitter’s reply is now due April 1, 2019.

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Additionally, once fully briefed, the Court will deem the motion submitted without requiring a

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personal appearance. If the Court determines that argument is necessary, it will contact to the

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parties to schedule a hearing via telephone. Accordingly, the Court VACATES the hearing

United States District Court
Northern District of California

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currently scheduled for April 16, 2019.
Brittain is directed to follow the instructions on the Court’s website regarding pro se

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litigants’ registration for ECF and PACER. (See http://cand.uscourts.gov/ECF/proseregistration.)

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After registering on ECF and PACER, Brittain must file a notice of ECF registration that plaintiff

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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.)

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has made available an electronic mail address for service of papers electronically filed on the

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docket. Upon filing of such notice, the Court will designate this action for the ECF program.

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Brittain must comply with the Federal Rules of Civil Procedure and all general orders and

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local rules pertaining to electronic filing including General Order 45 which requires in part that

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parties must provide the judge’s chambers with a paper copy of each document that is filed

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electronically, marked “Chambers Copy.” By registering, Brittain accepts responsibility for all

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technical requirements and computer-related tasks associated with participation in the ECF

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program.
The Court also advises that a Handbook for Pro Se Litigants, which contains helpful

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United States District Court
Northern District of California

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information about proceeding without an attorney, is available in the Clerk’s office or through the

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Court’s website, http://cand.uscourts.gov/pro-se. Additional assistance is available through the

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Legal Help Center. There is no fee for this service. Parties can make an appointment to speak

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with an attorney who can provide basic legal information and assistance. The Help Center does

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not see people on a “drop-in” basis, and will not be able to represent parties in their cases. There

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is no charge for this service. To make an appointment with the Legal Help Center, you may: (1)

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sign up in person on the appointment book outside the Legal Help Center offices at the San

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Francisco Courthouse, located at 450 Golden Gate Avenue, 15th Floor, Room 2796, San

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Francisco, California or the Oakland Courthouse, located at 1301 Clay Street, 4th Floor, Room

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470S, Oakland, California; (2) call 415-782-8982; or (3) email [e-mail].

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The Help Center’s website is available at https://cand.uscourts.gov/legal-help.

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This Order terminates Docket Number 52.

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IT IS SO ORDERED.

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Dated: March 15, 2019
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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