Doe (K.B.) v. Backpage.com, LLC et al

Filing 55

MEMORANDUM OPINION AND ORDER - For the reasons set forth, Defendant Meta Platforms, Inc.'s #47 MOTION to Transfer Venue under 28 U.S.C. 1404(a) is GRANTED, and this action is TRANSFERRED to the Case to United States District Court for the Northern District of California...*** STAYED flag cleared. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 1 of 24
United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JANE DOE (K.B.},
Plaintiff,
v.

FACEBOOK, INC., n/k/a
META PLATFORMS, INC.,
Defendant.

§
§
§
§
§
§
§
§
§
§

May 16, 2023
Nathan Ochsner, Clerk

CIVIL ACTION NO. H-22-0226

MEMORANDUM OPINION AND ORDER

Plaintiff, Jane Doe (K.B.} ("Plaintiff"), brings this action
aga

st Defendant Facebook,

Inc.,

n/k/a Meta Platforms,

("Defendant" or "Facebook"}, alleging that Defendant vi

Inc.,

ated the

William Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008 ("TVPRA"), 18 U.S.C. § 1591, et seq. 1

Pending before

the court is Defendant Meta Platforms, Inc.'s Motion to Transfer
Venue under 28 U.S.C. § 1404(a) to the United States District Court
for the Northern District of California ("Defendant's Motion")
(Docket Entry No. 47}.

After carefully considering the parties'

arguments and the applicable law,

the court is persuaded that

Defendants' Motion should be granted.

intiff's Second Amended Complaint, Docket Entry No. 13,
pp. 20 4 ii 135-47. Page numbers for docket entries in
record
refer to the pagination inserted at the top of the page by the
court's electronic filing system, CM/ECF.
1

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 2 of 24

I.
A.

Background and Procedural History

Factual Background2
Defendant owns the social media website Instagram.

In 2017

Plaintiff was a female Instagram user living in Florida.

When

Plaintiff created her Instagram account she encountered a notice
informing her that account registration constituted agreement to
Instagram's Terms of Use.

The notice contained a hyperlink,

through which a would-be Instagram user could review the Terms of
Use.

The preamble explained that the Terms of Use bound all

Instagram users by stating that
[t]hese Terms of Use are effective on January 19, 2013.
By accessing or using the Instagram website, the
Instagram service, or any applications (including mobile
applications) made available by Instagram (together, the
"Service"), however accessed, you agree to be bound by
these terms of use ("Terms of Use").
The Service is
owned or controlled by Instagram, LLC ("Instagram").
These terms of Use affect your legal rights and
obligations. If you do not agree to be bound by all of
these Terms of Use, do not access or use the Service. 3
The Terms of Use contained a forum-selection clause, which stated:

Excerpted from "Statement of Relevant Facts" in Plaintiff's
Response to Facebook Inc. n/k/a Meta Platforms, Inc.'s Motion to
Transfer Venue ("Plaintiff's Response"), Docket Entry No. 51,
pp. 5-6; and "Statement of Relevant Facts" in Defendant's Motion,
Docket Entry No. 47, pp. 5-7.
2

Defendant's Motion, Docket Entry No. 47, p. 6 (quoting
Declaration of Michael Duffey ("Duffey Declaration") and Exhibit 1
thereto, Docket Entry No. 47-3, p. 2 � 11 and p. 5).
3

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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 3 of 24

Governing Law & Venue
These Terms of Use are governed by and construed in
accordance with the laws of the State of California
without giving effect to any principles of conflicts of
law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED
NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL
SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action
at law or in equity
you agree to resolve any
dispute you have with Instagram exclusively in the state
or federal court located in Santa Clara, California, and
to submit to the personal jurisdiction of the courts
located in Santa Clara County for the purpose of
litigating all such disputes. 4
Instagram's algorithms connected Plaintiff with R.L., a male
sex trafficker with whom Plaintiff had no previous relationship.
Using Instagram R.L. groomed Plaintiff for sex trafficking. By the
summer of 2017 R.L. was making public posts on Instagram that
obviously advertised Plaintiff for sale for sex. For the next year
Plaintiff was repeatedly sold for sex through Instagram and was
assaulted by numerous men in Houston, Texas.
R.L. was later convicted for sex trafficking crimes in the
Southern District of Texas, and sentenced to 40 years in prison.
Plaintiff testified against R.L. at his trial.
Plaintiff alleges that despite the open and obvious sex
trafficking content on R.L.'s Instagram page and multiple reports
regarding that content, Defendant failed to take any action against
the page while Plaintiff was being trafficked.

Plaintiff alleges

that Def�ndant allows sex trafficking to flourish on its platform
Id. -(quoting Exhibit 1 to Duffey Declaration, Docket Entry
No. 47-3, pp. 10-11).
4

-3-

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 4 of 24

as a means to reap bene

ts by creating connections between users

and maximizing advertising revenue.
B.

Procedura1 Background5

Plaintiff initiated this action on January 14, 2022, by
inal and amended petition in

an

234th Judicial District

Court of Harris County, Texas (Civil Action No. 2022-02660). 6
January 21,

2022,

ling

Defendant removed the action to

On

s court

asserting diversity jurisdiction under 28 U.S.C. § 1332(a) (Docket
Entry No. 1).

On February 22, 2022, Defendant filed a Motion to

Dismiss (Docket Entry No. 12). On March 14, 2022, Plaintiff filed
a Second Amended Complaint (Docket Entry No. 13), and on March 16,
2022,

the court denied Defendant's Motion to Dismiss as moot

(Docket Entry No. 14).
trans

Defendant filed the pending motion to

r on February 23, 2023, Plaintiff responded on March 22,

2023, and Defendant

ied on March 29, 2023.7

"Nature and Stage of the Proceeding" in Plaintiff's
Response, Docket Entry No. 51, p. 7; and "Nature and Stage of
Proceedings" in Defendant's Motion, Docket Entry No. 47, p. 7.
Plaintiff's Original Petition and Plainti 's First
Amended Petition and Application for Abatement of Public Nuisance,
Exhibit 2 to Declaration of Collin J. Cox in Support of Facebook,
Inc. N/K/A Meta Platforms, Inc.'s Notice of Removal, Doc
Entry
No. 1-8, pp. 1-30.
Defendant Meta Platforms, Inc.'s Reply in Support of Its
Mot
to Transfer Venue Under 28 U.S.C. § 1404(a) ("Defendant's
Reply") ( Docket Entry No. 52).
7

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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 5 of 24

II.

Law and Analysis

Defendant urges the court to grant the pending motion to
transfer arguing that {1) by assenting to Instagram's Terms of Use,
Plaintiff agreed to a mandatory forum s

ection clause; (2) the

mandatory forum selection clause to which Plaintiff agreed is
enfo

e;

and

(3)

Plaintiff

cannot

establish

that

public

interest factors overwhelmingly disfavor transfer to the Northern
Dist

ct

of

California. 8

Plaintiff

responds

that

her

passive

agreement to a forum selection clause buried in Instagram's Terms
of Use cannot support transfer of her TVPRA claim to Defendant's
chosen forum because {1) her TVPRA claim
selection

clause

because

ls outside of the forum

it is premised on

criminal

conduct

facilitated by Defendant that no Instagram user could reasonably
have foreseen would be subject to such a clause; (2) the forum
selection clause is unreasonable under the circumstances;
(3)

the

criminal

conduct

underlying

her

TVPRA

claim

is

and
an

extraordinary circumstance that precludes enforcement of the forum
selection clause. 9

A.

Applicable Law
1.

28 U.S.C. § 1404(a}

Motions to trans

venue are governed by 28 U.S.C. § 1404(a),

Defendant's Motion, Docket Entry No. 47, pp. 10-17.
Defendant's Reply, Docket Entry No. 52, pp. 6-13.
8

9 Plaintiff's

See also

Response, Docket Entry No. 51, pp. 7-14.
-5-

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 6 of 24

Stewart Organization, Inc. v. Ricoh Corporation, 108 S. Ct. 2239,
2245 (1988), which provides that
[f]or the convenience of the 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.
28 U.S.C. § 1404 (a).

In the typical case not involving a forum-

selection clause, district courts analyze the propriety of transfer
based on the convenience of the parties (referred to as the
"private

interest

and

factors"),

various

public-interest
See

considerations (referred to as the "public interest factors").

Atlantic Marine Construction Co., Inc. v. United States District
Court for the Western District of Texas, 134 S. Ct. 568, 581-82
(2013)

"The calculus changes, however, when the parties' contract

contains a valid forum-selection clause,
parties'

agreement

581(quoting Stewart,

as

to

the

most

which

proper

108 S. Ct. at 2245).

'represents the
Id.

forum.'"

at

In such cases courts

afford the forum selection clauses "controlling weight in all but
the most exceptional cases."

Id.

In considering whether to transfer a case under 28 U.S.C.
§ 1404(a) pursuant to a forum selection clause, courts follow a
multi-step process.

See Weber v. PACT XPP Technologies, AG, 811

F.3d 758, 768 (5th Cir. 2016); and PCL Civil Constructors, Inc. v.
Arch Insurance Co., 979 F.3d 1070, 1074 (5th Cir. 2020).
applying

principles

of

contract

law

as

necessary,

the

First,
court

evaluates whether the forum selection clause is mandatory or
-6-

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 7 of 24

permissive, is valid, and whether the parties' dispute falls within
the scope of the clause.
F.3d at 1073-75.

Weber, 811 F.3d at 768, 770-71; PCL, 979

Atlantic Marine, 134 S. Ct. at 581 n. 5 (stating

that the analysis in that case "presuppose[s] a contractually valid
forum-selection

Although

clause").

federal

law

governs

the

enforceability of forum selection clauses, it does not govern their
interpretation.
If

the

court

See Weber, 811 F.3d at 769; PCL, 979 F.3d at 1075.
concludes

that

the

forum

selection

clause

is

mandatory, is valid, and that the parties' dispute falls within the
scope of the clause, the clause is presumptively enforceable, and
to prevent transfer,
burden"

of

showing

the resisting party must satisfy a "heavy
that

enforcement

unreasonable under the circumstances.

of

the

clause

would

be

Weber, 811 F.3d at 773-74;

PCL, 979 F.3d at 1073-75; Haynsworth v. Corporation, 121 F.3d 956,
963 (5th Cir. 1997), cert. denied, 118 S. Ct. 1513 (1998).

If the

court concludes that the forum selection clause is enforceable, the
court must decide if extraordinary circumstances disfavor transfer.
Weber,

811

F.3d

at

775-76;

PCL,

979

F.3d

at

extraordinary circumstances disfavor transfer,
grant the motion to transfer.
( "Only

under

extraordinary

1074.

If

no

the court should

Atlantic Marine, 134 S. Ct. at 581
circumstances

unrelated

to

the

convenience of the parties should a § 1404(a) motion be denied.").
"[T]he plaintiff bears the burden of establishing that transfer to
the forum for which the parties bargained is unwarranted."
581.
-7-

Id. at

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 8 of 24

Choice of Law

2.

Federal law governs the enforceability of forum selection
clauses in both divers

y and federal question cases, but does not

govern interpretation of such clauses.

See Barnett v. DynCorp

International, L.L.C., 831 F.3d 296, 301-02 (5th Cir. 2016) (citing
Haynsworth, 121 F.3d at 962,
Fintech Fund,

and Weber, 811 F.3d at 770-71).

In

F.L.P. v. Horne, 836 F. App'x 215, 223 (5th Cir.

2020), the Fifth Circuit applied state law to interpret a forum
selection clause after observing that "[t]he district court applied
Texas law, stating that '[t]he parties do not dispute

Texas

law governs.' But the parties did not, in fact, acquiesce to the
application of Texas law.

As such, the district court should have

engaged in a choice-of-law analysis."

Although Defendant has

observed that Instagram's Terms of Use call for the application of
California

law, 10

acqu

to the application of Texas law.

neither

party

has

addressed

this

issue

or

To interpret the

meaning and scope of a forum selection clause,

the court must

therefore use the forum's choice of law rules to identify the
substantive law that governs the clause. Barnett, 831 F.3d at 301.
Because this action was initiated in Texas state court and removed
on the basis of diversity jurisdiction, Texas' choice of law rules
apply.

10

Weber, 811 F.3d at 769.

Defendant's Motion, Docket Entry No. 4 7, pp. 8 and 9 n. 1.
-8-

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 9 of 24

The Terms of

Use state that they

"are governed by and

construed in accordance with the laws of the State of California." 11
"Texas courts permit choice-of-law agreements and the default
Cardoni v. Prosi;:,erity

position is that they are enforceable."
Bank, 805 F.3d 573, 581 (5th Cir. 2015).

Texas courts

will enforce a choice-of-law clause unless (1) "the
chosen state has no substant
relationship to the
ies or the transaction and there is no other
reasonable basis for the parties' choice" or (2) the
chosen law would be "contrary to a fundamental policy of
a state which has a materially greater interest than the
chosen state in the determination of the particular issue
and which .
. would be the state of applicable law in
the absence of an effective choice of law by the
parties."
Western-Southern Life Assurance Co. v. Kaleh, 879 F.3d 653, 658
S.W.3d

r. 2018) (quoting Exxon Mobil Cori;:,. v. Drennen, 4

(5th

319, 324-25 (Tex. 2014)).

Because Defendant is headquartered in

California, 12 the Terms of Use bear a reasonable relation to
California.

See

Marguis

Software

Solutions,

Inc.

v.

Robb,

No. 3:20-cv-372-B, 2020 WL 955901, at *4 (N.D. Tex. Feb. 27, 2020).
See also Tex. Bus. & Comm. Code § 1.301 (a}
herea

( "Except as provided

er in this section, when a transaction bears a reasonable

relation to this state and also to another state . . . the parties
may agree that the law

ther of this state or of such other state

i:rd. at 6 (quoting Duffey Declaration and Exhibit 1 thereto,
Docket Entry No. 47-3, p. 2 1 11 and p. 10).
at 16 (asserting that Defendant is headquartered in the
Northern District of
ifornia).
Plaintiff's Second
Amended Complaint, Docket Entry No. 13, p. 5 1 14 (alleging that
Defendant's headquarters and principal place of business is in
California).
12

-9-

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 10 of 24

. shall govern their rights and duties.").
neither
forum

Moreover, since

party has challenged the choice of law provision in the

selection

clause,

the

Court

concludes

that

the

forum

selection clause must be interpreted under California law.

See

Smith v. EMC Corp., 393 F.3d 590, 597 (5th Cir. 2004) ("In Texas,
contractual choice-of-law provisions are typically enforced.").
B.

Application of the Law to the Facts

Interpretation of the Forum Selection Clause

1.

As stated above in§ II.A.2, state
the interpretation of a contract,

not federal - law governs

including

selection clause is mandatory or permiss
the dispute at issue
See Weber,

whether a forum

, is valid, and whether

lls within the scope of a such a clause.

811 F.3d at 769-70 (applying state law to

ermine
836

whether the clause is mandatory or permissive), and

F. App'x at 223-26 (applying state law to determine whether the
clause is valid and the parties' dispute falls within its scope).
(a)

The Forum Selection Clause is Mandatory

The Instagram Terms of Use state that "you agree to resolve
any dispute you have with Instagram exclusively in a state or
federal court located in Santa Clara, California, and to submit to
the personal jurisdiction of the courts located in Santa Clara
County

for

the

purpose

of

litigation

all

such

disputes." 13

fendant's Motion, Docket Entry No. 47, p. 6 (quoting Duffey
(continued...)
-10-

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 11 of 24

California

law

considers

clauses

with

"express

language

of

exclusivity of jurisdiction, specifying a mandatory location for
litigation" to be mandatory forum selection clauses. See Olinick v.
BMG Entertainment,

42 Cal. Rptr. 3d 268,

274

(Ct. App. 2006).

Texas law also considers forum selection clauses with express
language of exclusivity to be mandatory.

See Michiana Easy Livin'

Country, Inc. v. Holten, 168 S.W.3d 777, 781, 792-93 (Tex. 2005)
(holding a contract stating that the parties "agree that if any
dispute between us is submitted to a court for resolution, such
legal proceeding or suit shall take place in the county
[Michiana's principal] o

ices are located,

selection clause). Because the forum se

11

which

was a mandatory forum

ion clause in the Terms

of Use provides for exclusive jurisdiction in Santa Clara County,
California, it is a mandatory forum selection clause under both
California and Texas law.
(b)

The Forum Selection Clause is Valid

Plaintiff asserts that her "passive agreement to a forum
selection clause buried in
support the

transfer

of

Instagram's user agreement cannot

[her]

claim

to

[Defendant's]

chosen

continued}
Declaration and Exhibit 1 thereto, Docket Entry No. 47-3, p. 2 � 11
and pp. 10-11).
13 (
•••

-11-

Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 12 of 24

forum, " 14 but does not dispute that by creating and using an
Istagram account she bound herself to Instagram's Terms of Use.
Regardless of whether federal law or the law of California or Texas
applies to the undisputed facts of this case, the forum selection
clause is presumptively valid.

See M/S Bremen v. Zapata Off-Shore

Co., 92 S. Ct. 1907, 1913 (1972) (forum-selection clauses are prima
facie valid and should control questions of venue absent a strong
showing

that

enforcement

would

be

unreasonable

and

unjust);

Trident Labs, Inc. v. Merrill Lynch Commercial Finance Corp., 132
Cal. Rptr. 3d 551, 556 (Ct. App. 2011) (under California law "the
forum selection clause is presumed valid and will be enforced
unless the plaintiff shows that enforcement of the clause would be
unreasonable under the

rcumstances"); Rieder v. Woods, 603 S.W.3d

86, 93 (Tex. 2020) (forum selection clauses are presumptively valid
under Texas law).
(c)

Plaintiff's TVPRA Claim
ls Within the Scope of
the Forum Selection Clause

Quoting Pinto Technology Ventures, LP v. Sheldon, 526 S.W.3d
428, 437 (Tex. 2017),

aintiff argues that the forum s

ection

clause does not extend to her TVPRA claim because the scope of the
clause "depends on the part

s' intent."

Plaintiff argues that

(h]ere, it is apparent that (she] did not intend for the
forum selection clause to encompass her (§] 1595 claim.
14

Plaintiff's Response, Docket Entry No. 51, p. 7.
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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 13 of 24
[Plaintiff] used Instagram to engage with social media not to become a victim of sex trafficking. To that end,
[Plaintiff] could not have anticipated that [Defendant]
would facilitate (and benefit from) her sex trafficking
through its Instagram platform. [Defendant] thus cannot
reasonably contend that [Plaintiff] intended to be forced
to litigate her sex-trafficking claim against [Defendant]
in a forum of [Defendant]'s choosing, merely because she
created an Instagram account.
Neither [Plaintiff]
justifiably
have
expected
[Defendant's] outrageous conduct
sex trafficking to be subject
clause.

(nor [Defendant]) could
to
relating
claims
of facilitating criminal
to the forum selection

[Defendant's] position is particularly egregious
because [Plaintiff's] [§] 1595 claim is premised on
criminal conduct . . . [Defendant] should not be permitted
to transfer [Plaintiff's] claim to California - thus
opting to kick its sex-trafficking conduct from the forum
where [Plaintiff] was trafficked, . . . to a potentially
more favorable forum - based solely on a contractual
forum selection clause.
Claims (like [Plaintiff's] ) that turn on criminal
conduct arise independent of the contractual relationship
between Instagram and its users. And [Plaintiff's] claim
bears no relationship to the lawful and intended use of
Instagram.
Enforcing the forum selection clause here
would
be
unreasonable,
and
the
extraordinary
circumstances surrounding the criminal nature of
[Plaintiff's] claim make transfer inappropriate. 15
Defendant replies that Plaintiff's TVPRA claim falls squarely
within the scope of the broad forum selection clause, which is not
limited to certain types of claims. 16

Relying on Texas law and

asserting that Plaintiff "points to no ambiguity in the contractual
language," 17 Defendant argues that

15

Id. at 8-10.

16

Defendant's Reply, Docket Entry No. 52, pp. 6-8.

17

Id. at 7.
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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 14 of 24

only relevant intent-related evidence here is the
intent reflected in the plain language set forth within
the Instagram Terms' four corners. . . But Plaintiff does
not
and cannot - point to any language in the Instagram
Terms that shows the parties intended the forum-selection
claims would not apply to "claim[s]
. premised on
criminal conduct, 11
or to "claim[s] bear[ing] no
relationship to the lawful and intended use of
or to claims "that she [could not]
Instagram,
e.
reasonably antic
11

•

1118

As stated above in § II.A.2 the court must use state not
federal law to interpret the forum selection clause. The Instagram
Terms of Use state that "you agree to resolve any dispute you have
with Instagram exclusively in a state or federal court located in
Santa Clara, California, and to submit to the personal jurisdiction
of the courts located in Santa Clara County for the purpose of
litigation all such disputes.

California and Texas law both

1119

consider broadly worded clauses to encompass all tort and contract
claims that may arise under, or from, the contractual relationship.
42 Cal. Rptr. 3d at 278 {holding that forum selection
clause

covering

"all

disputes

arising

under

this

Agreement 11

encompasses all causes of action arising from or relat

to the

agreement regardless of how they are categorized);

526

S.W.3d at 439

("When a forum-selection clause encompasses all

'disputes'

its scope is necessarily broader than claims based

solely on rights originating exclusively from the contract.
18

11

).

at 7-8.

ndant's Motion, Docket Entry No. 47, p. 6 (quoting Duffey
De
ion and Exhibit 1 thereto, Docket Entry No. 47-3, p. 2 � 11
and pp. 10-11) {emphasis added).
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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 15 of 24

intiff argues that her TVPRA claim "arise [s] independent of
the contractual relationship between Instagram and its users,

1120

but

that argument is belied by the many factual allegations in her
complaint that reference her contract-based relationship with
Instagram.

s that she "was contracted

For example, Plaintiff al

on Instagram,

21
11

"R.L. began to send messages to

[her]

through

Instagram's direct message chat feature and posted statements to
[her] on her public Instagram screen,
was an Instagram user,

1123

11

22

Defendant "knew t

and " [Defendant's]

[she]

Instagram platform

formed an integral part of the illegal enterprise through which
[she] was trafficked. 1124

These allegations show that Plaintiff's

TVPRA claim arises from her use of the Instagram account, which
formed

the

basis

of

both

her

Defendant's allegedly tortious acts.

contract

with

Defendant

and

The court concludes therefore

that under both California and Texas law Plaintiff's TVPRA claim
falls within the broad scope of the forum selection clause, which
applies to "any dispute you have with Instagram." 25
aintiff's Response, Docket Entry No. 51, p. 10.
Plaintiff's Second Amended Complaint, Docket Entry No. 13,
p. 17 1 110.
21

22

1 111.
at 19 1 121.

24

at 20 1 131.
fendant's Motion, Docket Entry No. 47, p. 6 (quoting Duffey
(continued... )
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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 16 of 24

2.

The Forum Selection Clause is Enforceable

Enforceability of the forum selection clause is governed by
federal law.

Weber, 811 F.3d at 769.

The court's cone

ion that

the forum selection clause is mandatory and valid,

and that

Plaintiff's TVPRA claim falls within the scope

of the forum

selection clause, requires the court to find the clause enforceable
unless Plaintiff is able to establish that enforcement would be
unreasonable under the circumstances.

Haynsworth, 121 F.3d at 963

(citing M/S Bremen, 92 S. Ct. at 1913). Unreasonableness may exist
when
(1) the incorporation of the forum selection clause into
the agreement was the product of fraud or overreaching;
all
{2) the party seeking to escape enforcement will
practical purposes be deprived of [her] day in court
because of the grave inconvenience or unfairness of the
selected forum; (3) the fundamental unfairness of the
chosen law will deprive the plaintiff of a remedy; or
( 4) enforcement of the forum se ction clause would
contravene a strong public policy of the forum state.
Id.

(internal quotations and citations omitted).

"The party

resisting enforcement on these grounds bears a 'heavy burden of
proof.'"

Id. {quoting M/S Bremen, 92 S. Ct. at 1917).

Plaintiff concedes that most of the unreasonableness factors
are not at issue here. She does not argue that the forum selection
clause is the result of fraud or overreach, and does not argue that
liti

ing in the Northern District of California would deprive her

continued)
De
ion and Exhibit 1 thereto, Docket Entry No. 47-3, p. 2 � 11
and p. 10).
25 {
•••

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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 17 of 24

of her day in court or be fundamentally unfair.

Instead, Plaintiff

argues that the forum selection clause is unreasonable because it
is "violative of public policy [of the forum state of Texas]."26
Plaintiff explains that
Texas, the forum state, has "a compelling interest in
stamping out human trafficking." Ex garte Barrett, 608
S.W.3d 80, 94 (Tex. App. - Dallas 2020, pet. ref'd). And
forcing [Plaintiff]
a victim of criminal trafficking
within Texas's borders - to litigate her claim in a
different state would undermine that compelling interest,
as well as the state's related compelling interest in
protecting victims like [her].
Indeed, the Texas legislature has enacted multiple
statutes to serve these strong interests. See, �,
Tex. Civ. Prac. & Rem. Code Ann § 98.002(a) (imposing
civil liability on parties who engage in trafficking or
"who
intentionally
or
knowingly
benefit[]
from
participating" in trafficking ventures); Tex. Penal Code
Ann. § 20A.02(a) (criminalizing trafficking offenses).
Leaving no question of Texas's commitment to these
interests, Texas's civil statutory chapter on human
trafficking has the express "underlying purpose" of
protect[ing]
persons from human trafficking
and
provid[ing] adequate remedies to victims of human
trafficking." Tex. Civ. Prac. & Rem. Code Ann. § 98.006.
Beyond that, Texas courts have recognized Texas's
strong public policy of protecting human-trafficking
victims. See, �, Acain v. Int'l Plant Servs., LLC,
449 S.W.3d 655, 664 (Tex. App.
Houston [1st Dist.]
2014, pet. denied) (refusing to dismiss human-trafficking
claims on international comity grounds, in part, based on
"Texas's interest in preventing human trafficking within
Texas").
So has Governor Abbott, who declared human
trafficking to be a public health crisis in Texas. See
Tex. H.R. Con. Res. 35, 86th Leg. R.S., 2019.
Enforcing the forum selection clause here would
prevent [Plaintiff]
. from accessing justice in the
state where she suffered her abuse.
Such a result
undermines Texas's compelling interests in protecting
Plaintiff's Response, Docket Entry No. 51, p. 11.

26

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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 18 of 24
trafficking victims and controlling trafficking within
its borders. 27
Asserting

that

"Instagram's

[b]road

[f]orum-[s]election

[c]lause [i]s [e]nforceable [h]ere,u 28 Defendant replies that
[Texas]'s public policy favors enforcement of forum­
selection clauses unless there is a "statute that
requires [this] suit to be brought or maintained in
Texas.u In re International Profit Associates, Inc., 274
S.W.3d 672, 680 (Tex. 2009) (per curiam) (emphasis added).
No such statute exists here. 29
In In re International Profit Associates the Texas Supreme
Court stated that
[i]n regard to the public interest and forum-selection
clauses, we have held that policy considerations weigh in
favor of enforcing valid forum-selection clauses absent
a statute that requires suit to be brought or maintained
in Texas. See In re AutoNation, Inc., 228 S.W.3d 663,
669 (Tex. 2007) (citing [In rel AIU [Ins. Co.], 148
S.W.3d [109,] 114 [ (Tex. 2004)]).
In In re AutoNation the Texas Supreme Court

274 S.W.3d at 680.
said that

"even where Texas statutory provisions specify the

application of Texas law, these provisions are irrelevant to the
enforceability

of

a

forum-selection

clause

where

'requires suit to be brought or maintained in Texas.'u

no

statute

228 S.W.3d

at 669 (quoting In re AIU Insurance Co., 148 S.W.3d at 114).
Although

Plaintiff

argues

that

enforcement

of

the

forum

selection clause would violate public policy established by a
number of Texas statutes, the only claim Plaintiff is pursuing is

27

Id. at 11-12.

28

Defendant's Reply, Docket Entry No. 52, p. 9.
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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 19 of 24

based on a federal - not a Texas - statute, i.e., the TVPRA, 18
U.S.C. § 1591, et seq.

Moreover, Plaintiff has neither cited a

Texas statute that precludes enforcement of the forum selection
clause or requires that this action to be maintained in Texas, nor
cited any case in which a Texas court has held a similar forum
selection clause unenforceable as violative of public policy.

To

the contrary, other Texas courts have held similar Facebook forum
selection clauses enforceable.

See Moates v. Facebook,

Inc.,

No. 4:20-cv-896-ALM-KPJ, 2021 WL 3013371, at *7 (E.D. Tex. May 14,
2021); and Moates v. Facebook, Inc., No. 4:21-cv-694-ALM-KPJ, 2022
WL 2707745, at *4

(E.D. Tex. June 13, 2022) (collecting cases).

Because the Texas Supreme Court has held that policy considerations
weigh in favor of enforcing valid forum-selection clauses absent a
statute that requires suit to be maintained in Texas, and because
Plaintiff has failed to cite any Texas statute that requires this
action be maintained in Texas, the court concludes that the forum
selection clause is enforceable.

Plaintiff Fails to Show that Extraordinary Circumstances
Disfavor Transfer

3.

If

a

forum

selection

clause

is

mandatory,

valid,

and

enforceable, the forum selection clause must be given "controlling
weight" - meaning the court must grant the motion to transfer venue
- unless extraordinary circumstances justify denying the motion.
See Atlantic Marine, 134 S. Ct. at 581; Weber, 811 F.3d at 767,
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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 20 of 24

776.

In determining whether a forum

ion clause should be

given "controlling weight," courts consider the following "public
interest factors": (1) the administrative difficulties flowing from
court congestion;

(2) the local interest in having localized

interests decided at home;

(3) the famil

the law that will govern the case;

and

rity of the forum with
(4}

the avoidance of

unnecessary problems of conflict of laws or the application of
811

foreign law.

Atlantic Marine, 134 S. Ct. at 581 n. 6;

F.3d at 776.

See also In re Volkswagen of America, Inc., 545 F.3d

304, 315 (5th Cir. 2008) (en bane), cert. denied, 129 S. Ct. 1336
(2009).

The party resisting the forum selection clause "bear[s]

the burden of showing that public-interest factors overwhelmingly
disfavor a transfer."

Atlantic Marine, 134 S. Ct. at 583.

Plaintiff argues that "[t]ransfer is .
because 'extraordinary
of the parties' - 'c

inappropriate here

rcumstances unrelated to the convenience
the criminal conduct underlying [her] claim

y disfavor a transfer.'"30

Plaintiff argues that

[i]t would be an extraordinary result to permit
[Defendant] to evade the consequences of its benef ting
from participating in a venture that engages in criminal
conduct in the forum where that conduct occurred, simply
because the victim of the criminal conduct signed up for
a social media account.
Indeed, although Instagram's forum selection
may be broad, it cannot be so broad that it encompasses
Facebook's facil ating criminal sex trafficking on
Instagram's platform.
aintiff's Response, Docket Entry No. 51, p. 12.
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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 21 of 24

Subjecting Instagram's users to a forum selection
clause in the
scenario would be extraordinary
because it permits [Defendant] to trap its already
ctimized users into litigating [Defendant's] sex­
trafficking conduct in a forum favorable to [Defendant],
despite the users never reasonably anticipating that they
would incur - much less need to litigate - such a claim.
Permitting [Defendant] to bar that claim in Texas by
invoking a contractual forum selection clause would
impeded Texas's ability to ensure that victims of human­
trafficking rece
adequate remedies for wrongs they
fered within the state.
[Defendant] wholly ignores these "extraordinary
circumstances" in arguing that transfer is appropriate.
Rather than address the criminal conduct underlying
[Plaintiff's] claim, [Defendant] argues only that
extraordinary circumstances do not exist because the four
public-interest factors set forth in In re Volkswagen[],
545 F.3d [at] 315 [], weigh in favor of transferring the
case. . . But [Defendant] ignores that these factors "are
not necessarily exhaustive or exclusive," Volkswagen, 55
F. 3d at 315, and
ls to explain how the underlying
criminal conduct at issue in this case is not an
"extraordinary
rcumstance[]
unrelated
to
the
convenience of the parties."
Regardless, [Defendant] errs in arguing that the
public-interest factors set forth in Volkswagen favor
transfer.
Despite [Defendant's] contentions [to the
contrary], this is the "rare[]" case where the factors
"defeat a trans
motion" because none of the factors
favor transfer. 31
Citing Atlantic Marine, 134 S. Ct. at 583, Defendant replies
that

intiff "fails to carry her burden of showing that the

'public-interest factors overwhelmingly disfavor a trans

I 1132

Defendant argues that "[c]ontrary to Plaintiff's assertions, it is
not [Defendant's] burden to show that the public-interest factors
at 12-14.
32

Defendant's Reply, Docket Entry No. 52, p. 10.
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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 22 of 24

Plaintiff

transfer.

favor

must

overwhelmingly disfavor transfer.

show

that

the

factors

This she cannot do. " 33

Because Plaintiff is pursuing only a single claim based on
federal law, i.e., the TVPRA, federal law will govern her claim
regardless of whether this case remains
to California.

Texas or is transferred

Plaintiff does not argue that her case should stay

in Texas to avoid administrative difficulties flowing from court
congestion or unnecessary problems of conflicts of law.

Nor does

Plaintiff argue that a federal court in the Northern Dist

ct of

California would be less familiar with the federal law governing
her claim than this court.

Accordingly, the court concludes that

these three public interest factors are neutral,

and do not

disfavor transfer.
aintiff's argument that extraordinary circumstances disfavor
trans
the

is focused on the one remaining public interest factor:
1 interest in having localized interests decided at home.

Asserting that "this suit involves the sex trafficking

a victim

in Houston, Texas,,, Plaintiff argues that "this suit's only 'local'
connection to California is that Facebook - who facilitated the
king in Texas - is headquartered there.,, 34

traf

Plaintiff argues

that the California "connection pales in comparison to Texas's, so

33
34

at 11.
Plaintiff's Response, Docket Entry No. 51, p. 14.
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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 23 of 24

this factor weighs heavily against transfer." 35
a

nonresident

defendant,
Holdings,

plaintiff

brings

suit

But when, as here,

against

a

nonresident
Mair

"this factor is entitled to little weight."
Inc. v. Air Line

No. H-06-4108,

Pilots Association,

2007 WL 9754294,

at *5

International,

(S.D. Tex. November 27,

2007), report and recommendation adopted, 2007 WL 9754295
Tex. December 19,

See also

2007).

(S.D.

Perez v. Linkedin Corp.,

No. 4:20-CV-2188, 2020 WL 5997196, at * 5 (S.D. Tex. October 9,
2020) (finding localized interest factor neutral when defendant was
headquartered

in

California

and

plaintiff

resided

in

Texas).

Plaintiff has not articulated any reason why the court should find
that Texas' local interest in adjudicating a non-resident's claim
arising

from

injuries

allegedly

sustained

in

Texas

is

overwhelmingly greater than California's local interest in deciding
whether

a

company

headquartered

there

caused

those

injuries.

Moreover, the Texas Supreme Court has stated that Texas courts will
not override a broad forum selection clause solely because the
relevant injury allegedly occurred in Texas. See In re AutoNation,
228 S.W.3d at 669. The court therefore concludes that the forum
selection clause

which represents the parties' agreement to

litigate this dispute in California

must be given controlling

weight because Plaintiff has failed to meet her burden of showing
that extraordinary circumstances justify denying Defendant's Motion

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Case 4:23-cv-02387-KAW Document 55 Filed 05/16/23 Page 24 of 24

to transfer.
granted.

Accordingly, Defendant's Motion to transfer will be

See Weber, 811 F.3d at 776 (holding the district court

properly granted a § 1404(a) motion where the non-movant provided
only cursory arguments regarding the public interest factors and,
therefore,

did

not

meet

his

burden

of

persuasion

to

avoid

enforcement of a forum selection clause).

III.

Conclusion and Order

For the reasons set forth above,

Defendant Meta Platforms,

Inc.'s Motion to Transfer Venue under 28 U.S.C. § 1404(a) (Docket
Entry No. 47), is GRANTED, and this action is TRANSFERRED to the
United

States

District

Court

for

the

Northern

District

of

California.
SIGNED at Houston, Texas, this 16th day of May, 2023.

SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE

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