Connectus LLC v. Ampush Media, Inc.
Filing
45
ORDER denying 36 motion to dismiss. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 2/26/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CONNECTUS, LLC, d/b/a
EDEGREE ADVISOR
Plaintiff,
v.
Case No. 8:15-cv-2778-T-33JSS
AMPUSH MEDIA, INC., and
DGS EDU, LLC,
Defendants.
_____________________________/
ORDER
This matter comes before the Court upon Defendant DGS
Edu, LLC’s Motion to Dismiss or Transfer (Doc. # 36), filed
on February 4, 2016. Plaintiff Connectus, LLC filed a response
in opposition on February 18, 2016. (Doc. # 41). For the
reasons stated herein, the Court denies the Motion.
I.
Background
Connectus operates “as an online marketplace” that seeks
to
match
prospective
students
with
“educational
opportunities.” (Doc. # 9 at ¶ 12). Connectus has developed
a process for generating leads, i.e., prospective students,
and
sells
those
leads
to
either
a
university
or
an
intermediary, such as Defendant Ampush Media, Inc. (Id. at ¶¶
13-15).
Connectus
enters
into
1
contracts
with
each
intermediary; Connectus entered into such an agreement with
Ampush. (Id. at ¶ 20). That agreement is entitled, Ampush
Media Service Level Agreement. (Id.). DGS Edu subsequently
acquired the education division of Ampush, including the
Media Service Level Agreement. (Id. at ¶ 21).
The Media Service Level Agreement contains a choice-oflaw and forum-selection clause. Specifically, the clause
states:
6. GOVERNING LAW & ATTORNEYS’ FEES
The interpretation and construction of this
Agreement and all matters relating hereto shall be
governed by the laws of the State of California.
The parties hereby submit to the jurisdiction of,
and waive any venue objections against, the United
States District Court for the Northern District of
California, San Francisco County Branch and the
Superior and Municipal Courts of the State of
California.
(Doc. # 9-1 at 6, ¶ 6).
After receiving complaints from other intermediaries and
universities that leads had already been contacted multiple
times, Connectus undertook an investigation. (Doc. # 9 at ¶¶
22-23).
As
alleged
in
the
Amended
Complaint,
Connectus’
investigation lead to its conclusion that Ampush and DGS Edu
were misappropriating Connectus’ data. (Id. at ¶¶ 26-32).
Thereafter, Connectus brought suit against Ampush and DGS
2
Edu, alleging various causes of action sounding in both tort
and contract. (Id. at 7-14).
Ampush filed its Answer on January 29, 2016, and DGS Edu
filed the pending Motion to Dismiss or Transfer on February
4, 2016. (Doc. ## 30, 36). Connectus filed its response on
February 18, 2016. (Doc. # 41). The Motion is ripe for this
Court’s review.
II.
Analysis
DGS Edu argues this case should either be dismissed or
transferred because Connectus’ filing of suit in the Middle
District of Florida violated the forum-selection clause of
the Media Service Level Agreement. (Doc. # 56 at 3, 5, 14).
Connectus argues the forum-selection clause is permissive,
not mandatory, in nature. (Doc. # 41 at 3-7). Connectus
further argues DGS Edu failed to meet its burden under 28
U.S.C. § 1404. (Id. at 7-11).
The construction of a forum-selection clause is a matter
of federal common law. P & S Bus. Machs., Inc. v. Canon USA,
Inc., 331 F.3d 804, 807 (citing Stewart Org., Inc. v. Ricoh
Corp.,
487
U.S.
22,
28-29
(1988)).
Ordinary
contract
principles apply when interpreting a forum-selection clause.
Snapper, Inc. v. Redan, 171 F.3d 1249, 1261 (11th Cir. 1999).
A forum-selection clause is either mandatory or permissive.
3
Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d
1269, 1272 (11th Cir. 2004). As explained by the Court in
Cornett v. Carrithers:
A mandatory clause prescribes a specific forum in
which litigation regarding the contracted-to
subject matter must be brought; a permissive
clause, by contrast, identifies a forum in which
such litigation permissibly may be brought, but on
a non-exclusive basis. One hallmark of a mandatory
clause is the use of the imperative term “shall,”
which prescribes a “requirement.”
465 Fed. Appx. 841, 843 (11th Cir. 2012) (internal citations
omitted).
District courts have applied this distinction between
mandatory and permissive forum-selection clauses based on the
clause’s language. See, e.g., MoistTech Corp. v. Sensortech
Sys., Inc., No. 8:15-cv-434-EAK-TBM, 2015 WL 3952341, at *56 (M.D. Fla. June 26, 2015) (finding forum-selection clause
that stated, “any legal action or proceeding shall only be
brought in the . . . courts of the State of California” to be
a mandatory clause); Hollywood Collectibles Grp., LLC v.
Master Cutlery, Inc., No. 6:14-cv-176-Orl-31KRS, 2014 WL
2155214, at *4 (M.D. Fla. May 22, 2014) (finding forumselection clause that stated, “the parties hereto submit and
consent to the jurisdiction of the courts of the State of
California . . . in any action brought to enforce . . . this
4
contract” to be permissive); Land-Cellular Corp. v. Zokaites,
No. 05-23168-CIV, 2006 WL 3039964, *5-6 (S.D. Fla. Sept. 26,
2006) (finding language that parties “waive[d] any and all
objections to jurisdiction or venue” did not make forumselection clause mandatory).
The clause at issue here states:
[t]he interpretation and construction of this
Agreement and all matters relating hereto shall be
governed by the laws of the State of California.
The parties hereby submit to the jurisdiction of,
and waive any venue objections against, the United
States District Court for the Northern District of
California, San Francisco County Branch and the
Superior and Municipal Courts of the State of
California.
(Doc. # 9-1 at 6, ¶ 6). Noticeably, the clause uses the word
“shall” when addressing choice of law, but it does not do so
with respect to forum. To be sure, the portion of the clause
addressing forum does not express an intention on the part of
the parties to limit themselves to the exclusive jurisdiction
of the courts named therein. Rather, the clause merely shows
that the parties consented to the jurisdiction of certain
enumerated courts as possible forums.
finds
the
forum-selection
clause
As such, the Court
contained
in
the
Media
Service Level Agreement to be permissive.
Furthermore, DGS Edu alternatively requests this Court
transfer the action pursuant to 28 U.S.C. § 1404(a). (Doc. #
5
36 at 14). Courts consider several factors in determining
whether
transfer
is
appropriate
under
Section
1404(a);
namely:
(1) the convenience of the witnesses; (2) the
location of relevant documents and the relative
ease of access to sources of proof; (3) the
convenience of the parties; (4) the locus of
operative facts; (5) the availability of process to
compel the attendance of unwilling witnesses; (6)
the relative means of the parties; (7) a forum’s
familiarity with the governing law; (8) the weight
accorded a plaintiff’s choice of forum; and (9)
trial efficiency and the interests of justice,
based on the totality of the circumstances.
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir.
2005).
“The
disturbed
plaintiff’s
unless
it
is
choice
of
clearly
forum
should
outweighed
by
not
be
other
considerations.” Robinson v. Giarmarco & Bill, P.C., 74 F.3d
253, 260 (11th Cir. 1996).
To begin with, DGS Edu’s argument that the Court cannot
consider any private-interest factors and that Connectus
bears the burden of demonstrating the public-interest factors
overwhelmingly disfavor transfer are unpersuasive. DGS Edu’s
position rests on Atlantic Marine Construction Co., Inc. v.
U.S. District Court for the Western District of Texas, 134
S.Ct. 568 (2013); however, DGS Edu’s reliance is misplaced.
Atlantic Marine Construction dealt with a mandatory forumselection clause. Id. at 575 (noting the clause at issue
6
“stated
that
all
disputes
between
the
parties
shall
be
litigated in the Circuit Court for the City of Norfolk . . .
or in the United States District Court for the Eastern
District of Virginia, Norfolk Division”) (internal quotation
marks omitted).
In contrast, the forum-selection clause at issue here is
permissive and, thus, Connectus did not act in violation of
the clause. Accordingly, the burden remains with DGS Edu as
the moving party. In re Ricoh Corp., 870 F.2d 570, 573 (11th
Cir. 1989); Cableview Commc’ns of Jacksonville, Inc. v. Time
Warner
Cable
Se.
LLC,
No.
3:13-cv-306-J-34JRK,
2014
WL
1268584, at *23 (M.D. Fla. Mar. 27, 2014) (stating, “[w]hen
a forum-selection clause is permissive rather than mandatory,
the Court considers it only as one of several factors weighing
in favor or against transfer and the burden remains on . . .
the moving party to establish that [the transferee court] is
a more convenient forum than this Court”).
Having
taken
repose
in
its
argument
under
Atlantic
Marine Construction, 134 S.Ct. 568, DGS Edu does not directly
address any of the private-interest factors. (Doc. # 36 at
14-15).
After
considering
the
parties’
arguments
and
affidavits in support thereof, as well as the factors listed
in Manuel, 430 F.3d at 1135 n.1, the Court determines that
7
Connectus’ choice of forum should not be disturbed. Although
not alone dispositive, the Court notes three factors in
particular.
First, DGS Edu does not identify any particular witness
that would be inconvenienced by litigating this matter in the
Middle District of Florida. Trinity Christian Ctr. of Santa
Ana, Inc. v. New Frontier Media, Inc., 761 F. Supp. 2d 1322,
1327 (M.D. Fla. 2010) (noting “a party should specify the key
witnesses to be called and their expected testimony when
considering the convenience of the witnesses”) (citing Oller
v. Ford Motor Co., Nos. 92-523-CIV-T-17A, 92-555-CIV-T-15C,
1994 WL 143017, at *3 (M.D. Fla. Mar. 30, 1994)). Second,
although the servers that house the relevant data to this
dispute are located in San Jose, California (Doc. # 36-1 at
¶ 18), “the significance of this factor is reduced because
technological advancements in electronic document imaging and
retrieval
minimize
the
burden
of
document
production.”
Trinity Christian Ctr. of Santa Ana, 761 F. Supp. 2d at 1327
(citing Mason v. Smithkline Beecham Clinical Labs., 146 F.
Supp. 2d 1355, 1364 (S.D. Fla. 2001)). And, third, although
California law may apply to some or all of the causes of
action in this case, this Court is more than capable of
applying
California
law.
See
8
Anthony
Sterling,
M.D.
v.
Provident Life & Accident Ins. Co., 519 F. Supp. 2d 1195,
1208 (M.D. Fla. 2007) (stating, “this Court is competent to
apply foreign law, and does so”).
In
sum,
the
forum-selection
clause
at
issue
is
permissive in nature. Therefore, the burden remained with DGS
Edu, as the moving party, to demonstrate why this Court should
transfer the action and disrupt Connectus’ choice of forum.
After a review of the parties’ respective submissions, the
Court
determines
that
neither
dismissal
nor
transfer
is
appropriate.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant DGS Edu, LLC’s Motion to Dismiss or Transfer
(Doc. # 36) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
26th day of February, 2016.
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