Oeste et al v. Zynga, Inc.

Filing 20

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 5/5/2021. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES OESTE, et al.,
Plaintiffs,
v.

Civil Action No.: GLR-20-1566

ZYNGA, INC.,
Defendant.
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant Zynga, Inc.’s (“Zynga”) Motion
to Transfer Case, or in the Alternative, to Dismiss for Lack of Personal Jurisdiction and
Improper Venue (“Motion to Transfer”) (ECF No. 11).1 The Motion is ripe for disposition,

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Also pending before the Court are Plaintiffs’ Motion to Reconsider Order Granting
Pro Hac Vice Admission to this Court (“Motion to Reconsider”) (ECF No. 12); Motion to
Strike Defendant Zynga’s Exhibits and Argument (“Motion to Strike”) (ECF No. 13); and
Motion for Limited Discovery (ECF No. 16).
In their Motion to Reconsider and Motion to Strike, Plaintiffs outline a litany of
complaints against counsel for Zynga—specifically, that she misled Plaintiffs’ counsel
about her reason for requesting an extension to respond to the Complaint; failed to comply
with the Court’s guidelines for electronic signatures; and knowingly submitted to this Court
affidavits containing perjury. Having reviewed these Motions and the Oppositions thereto,
the Court finds that counsel’s conduct was appropriate and there is no need to revoke her
pro hac vice status or strike the affidavits submitted with the Motion to Transfer.
Accordingly, these Motions will be denied.
In their Motion for Limited Discovery, Plaintiffs seek jurisdictional discovery
regarding Zynga’s marketing and sales contacts with Maryland residents to assess whether
this Court has personal jurisdiction over Zynga. Importantly, however, “[a] district court
has the power to transfer venue under § 1404(a) even if it lacks personal jurisdiction over
the defendants in the action.” Starks v. Am. Airlines, Inc., 368 F.Supp.3d 866, 869 (D.S.C.
2019) (citing Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 112 (2d Cir. 2001)). Because
the Court will transfer this case to the United States District Court for the Northern District
of California, there is no need for jurisdictional discovery. Accordingly, the Motion for
Limited Discovery will be denied as moot.

and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined
below, the Court will grant Zynga’s Motion and transfer this case to the United States
District Court for the Northern District of California.
I.

BACKGROUND2

Defendant Zynga is a San Francisco, California-based developer of games for
mobile devices and social networking platforms. (Compl. ¶¶ 1, 2, ECF No. 1). In order to
download Zynga’s games, users must either create an account with Zynga and provide
certain personally identifying information (“PII”), such as their full name, email address,
phone number, gender, and password, or link their Zynga account to their personal
Facebook account. (Id. ¶ 16). Zynga routinely collects and retains users’ PII and Facebook
log-in information. (Id. ¶ 17).
On or before September 12, 2019, Zynga suffered a data breach that affected as
many as 173 million user accounts. (Id. ¶ 21). Zynga did not notify its users of the breach
by email or through a notification on their gaming apps; rather, Zynga posted a “Player
Security Announcement” to its website stating that “certain player account information
may have been illegally accessed by outside hackers.” (Id. ¶ 24). Thus, “[t]he only way for
a user to know that his or her PII has been unlawfully accessed is if that user were to access
Zynga’s website on a web browser, or notice instances of fraud or identity theft.” (Id. ¶ 25).

2

Unless otherwise noted, the Court takes the following facts from Plaintiffs’
Complaint and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citations omitted).
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Plaintiffs contend that, as a result, “[l]ikely only a minority of Zynga’s users know that
their PII has been illegally accessed by hackers.” (Id.).
Plaintiffs allege that Zynga was aware or should have known that the information
“stored on its servers was highly sensitive, susceptible to attack, and could be used for
malicious purposes by third parties, for reasons such as identify theft, fraud, and/or other
misuse.” (Id. ¶ 29). Nonetheless, “Zynga completely failed to take adequate measures to
protect” its users’ PII. (Id. ¶ 31). As a result of this failure, Zynga’s users “have been placed
at an imminent, immediate, and continuing increased risk of harm from identity theft and
identity fraud.” (Id. ¶ 54). Indeed, some Zynga users were subjected to unauthorized
charges on credit and debit cards; assessed penalties for over-drafting from bank accounts
and exceeding credit limits; deprived of the use of and access to their cards and funds; and
required to expend time, energy, and money to mitigate the consequences of the breach.
(Id. ¶¶ 55–56).
On June 9, 2020, Plaintiffs initiated the instant action against Zynga asserting eleven
claims on behalf of themselves and a class of similarly situated individuals consisting of:
“All persons residing in the United States, including the District of Columbia, whose PII
was disclosed in the Zynga Data Breach.” (Compl. ¶¶ 59–177, ECF No. 1). Zynga moved
to transfer or, in the alternative, to dismiss for improper venue on August 31, 2020. (ECF
No. 11). Plaintiffs filed an Opposition on September 10, 2020. (ECF No. 15). Zynga filed
a Reply on September 24, 2020. (ECF No. 18).

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II.
A.

DISCUSSION

Standard of Review
Motions to transfer are governed by 28 U.S.C. § 1404(a), which provides that “a

district court may transfer any civil action to any other district or division where it might
have been brought.” The purpose of § 1404(a) is “to prevent the waste of time, energy, and
money” and “to protect litigants, witnesses, and the public against unnecessary
inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal
quotation marks and citation omitted). In all instances, the decision to transfer venue is
committed to the sound discretion of the trial court. See Brock v. Entre Comput. Ctrs., Inc.,
933 F.2d 1253, 1257 (4th Cir. 1991) (citation omitted).
To prevail on a motion to transfer venue under § 1404, “the defendant must show
by a preponderance of the evidence that the proposed transfer will better and more
conveniently serve the interests of the parties and witnesses and better promote the interests
of justice.” Helsel v. Tishman Realty Constr. Co., Inc., 198 F.Supp.2d 710, 711 (D.Md.
2002) (internal quotation marks and citations omitted); see also Lynch v. Vanderhoef
Builders, 237 F.Supp.2d 615, 617 (D.Md. 2002); Dicken v. United States, 862 F.Supp. 91,
92 (D.Md. 1994). The Court may consider affidavits, declarations, and other pertinent
evidence in adjudicating a motion to transfer. See, e.g., Weathersby-Bell v. Wash. Metro.
Area Transit Auth., No. GJH-19-3474, 2020 WL 4501485, at *3 n.3 (D.Md. Aug. 4, 2020)
(citations omitted).

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B.

Analysis
Zynga argues that this matter should be transferred to the United States District

Court for the Northern District of California because Plaintiffs’ claims are subject to a
mandatory forum selection clause. Section 1404(a) requires that “a valid forum-selection
clause [should be] given controlling weight in all but the most exceptional cases.” Atl.
Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. Tex., 571 U.S. 49, 63 (2013) (quoting
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J., concurring)). As
such, a forum-selection clause “should be enforced unless enforcement is shown by the
resisting party to be ‘unreasonable’ under the circumstances.” Davis Media Grp., Inc. v.
Best W. Int’l, Inc., 302 F.Supp.2d 464, 466 (D.Md. 2004) (quoting M/S Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 10 (1972)). A mandatory forum-selection clause is “one
containing clear language showing that jurisdiction is appropriate only in the designated
forum,” while a permissive forum-selection clause permits jurisdiction in the selected
forum without “precluding it elsewhere.” Koch v. Am. Online, Inc., 139 F.Supp.2d 690,
693 (D.Md. 2000) (quoting Excell, Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318, 321
(10th Cir. 1997)). While not dispositive of the issue, a forum selection clause will
nevertheless “be a significant factor that figures centrally in the district court’s calculus.”
TECH USA, Inc. v. Evans, 592 F.Supp.2d 852, 857 (D.Md. 2009) (quoting Stewart Org.,
487 U.S. at 29).

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Here, Zynga argues that this action must be transferred because Plaintiffs consented
to the Terms of Service,3 which require that claims against Zynga must either be: (1)
submitted to arbitration; or (2) if the claims are excepted from arbitration, filed in state or
federal court in San Francisco, California. In other words, Zynga contends “that San
Francisco is the only appropriate venue for judicial proceedings.” (Mem. Supp. Def.’s Mot.
Transfer Alt. Dismiss Lack Personal Jurisdiction & Improper Venue [“Mot.”] at 9, ECF
No. 11-1).
The Court agrees and finds that the plain language of the agreement supports this
interpretation. Section 15 of the Terms of Service states:
By voluntarily accepting these Terms (and in many of our
Services by voluntarily clicking or tapping an in-game button
to affirmatively indicate your agreement to these Terms), you,
Zynga, and any member of the Zynga Corporate Family all
agree to resolve any claims relating to the Terms, Feature
Terms, Community Rules, your relationship with us, or
Zynga’s Services, through final and binding arbitration.
This applies to all claims under any legal theory, unless the
claim fits within the Exceptions to Agreement to Arbitrate
identified below.
(2018 Terms of Service [“2018 Terms”] at 14–15, ECF No. 11-5). Further, the Terms state
that “[i]f any party disagrees about whether this agreement to arbitrate can be enforced or
whether it applies to this dispute, the parties all agree that the arbitrator will decide that,
too.” (Id. at 15).

3

Plaintiffs do not dispute that they agreed to the Terms of Service, nor do they argue
that enforcement of any of the provisions therein would be unreasonable. Accordingly, the
Court will presume that the forum-selection clause is contractually valid. See Atl. Marine
Const., 571 U.S. at 62 n.5 (noting that the analysis under § 1404(a) “presupposes a
contractually valid forum-selection clause”).
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Section 15 of the Terms of Service further provides, however, that “[t]he parties all
agree that they will go to court to resolve” any claims that fall under the “Exceptions to
Agreement to Arbitrate,” which are defined as “disputes”: (1) “[r]elating to your, Zynga’s,
or a Zynga Corporate Family member’s intellectual property (for example, trademarks,
trade dress, domain names, trade secrets, copyrights, or patents);” (2) “[r]elating to any
violation of the Community Rules;” or (3) “[w]ithin the jurisdiction of small claims
courts.” (Id. at 16). Section 17 of the Terms of Service, entitled “Venue for Legal Disputes
Not Subject to Arbitration,” then states:
If you are located in the United States, judicial proceedings
(other than small claims actions) that are excluded from the
Arbitration Agreement in Section 15 must be brought in state
or federal court in San Francisco, California, unless the parties
agree to some other location. You, Zynga, and the Zynga
Corporate Family all consent to venue and personal
jurisdiction in San Francisco, California.
(Id. at 18).
Reading these provisions together, it is evident that disputes which qualify as
“Exceptions to Agreement to Arbitrate” must be brought in San Francisco courts, while all
other claims are subject to arbitration. Because Plaintiffs elected to file a lawsuit in court
rather than initiate arbitration, they must necessarily take the position that their claims fall
under Section 15’s Exceptions to Agreement to Arbitrate. As such, Plaintiffs were required
to file their claims in state or federal court in San Francisco, California. Because they failed
to do so, it is proper for the Court to transfer this matter.
Plaintiffs attempt to avoid this conclusion by arguing that their “dispute does not
fall under one of the enumerated exceptions to the Arbitration Agreement,” meaning that
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it “is not a ‘judicial proceeding’ that is ‘excluded from the Arbitration Agreement in
Section 15’ of the Terms.” (Pls.’ Opp’n Mot. Transfer Alt. Dismiss Lack Personal
Jurisdiction & Improper Venue [“Opp’n”] at 3, ECF No. 15). Plaintiffs apparently would
like the Court to find that the Terms of Service contemplate a category of claims that are
not subject to either the arbitration requirement in Section 15 or the forum-selection clause
in Section 17, and instead may be filed in the judicial district of Plaintiffs’ choosing. This
is clearly not what the Terms intend to accomplish. Rather, the language of the Terms
makes clear that claims against Zynga must either be submitted to arbitration or, if the
claims involve one of the enumerated “Exceptions to Agreement to Arbitrate,” filed in San
Francisco. Put simply, if Plaintiffs believe their claims may be filed in court rather than
submitted to arbitration, they must file them in San Francisco.
Beyond that, the Court finds that the § 1404(a) factors strongly support transfer to
the Northern District of California. Courts determining whether to transfer a case under
§ 1404(a) first ask “whether the action could have been brought in the transferee district.”
Aphena Pharma Sols.-Md. LLC v. BioZone Labs., Inc., 912 F.Supp.2d 309, 318 (D.Md.
2012). Upon finding that the action could have been brought in the transferee district, the
court must then “weigh in the balance a number of case-specific factors.” Stewart Org.,
487 U.S. at 29. Specifically, “the following case-specific factors are essential to the
analysis of a § 1404(a) motion in a case involving a valid forum-selection clause: ‘(1) the
weight accorded the plaintiff’s choice of venue, (2) witness convenience and access, (2)
convenience of the parties, and (4) the interest of justice.’” TECH USA, 592 F.Supp.2d at

8

857 (quoting Lynch, 237 F.Supp.2d at 617); see also Cross v. Fleet Reserve Ass’n Pension
Plan, 383 F.Supp.2d 852, 856 (D.Md. 2005).
As a preliminary matter, Plaintiffs concede that they “could have brought their
claims in the Northern District of California.” (Opp’n at 4). In addition, each of the
§ 1404(a) factors strongly supports transfer to that judicial district. First, because this is a
class action case, Plaintiffs’ choice of forum is afforded little weight. See Evans v. Ariz.
Cardinals Football Club, LLC, No. WMN-15-1457, 2016 WL 759208, at *3 (D.Md. Feb.
25, 2016) (“[T]he named plaintiff’s choice of forum is afforded little weight because in [a
class action] case, there will be numerous potential plaintiffs, each possibly able to make a
showing that a particular forum is best suited for the adjudication of the class’ claim.”
(citation omitted)). Second, the Northern District of California is more convenient for both
the parties and witnesses. Zynga’s computer systems and relevant documents are primarily
located in San Francisco. (See Courant Decl. ¶ 6, ECF No. 11-2). Additionally, most
current and former employees with relevant knowledge of the issues in this matter work at
Zynga’s San Francisco office. (Id. ¶ 5). As a result, aside from Plaintiffs, most witnesses
would be outside of this Court’s subpoena power. See Starks v. Am. Airlines, Inc., 368
F.Supp.3d 866, 871 (D.S.C. 2019) (holding that witness convenience favored transfer to
the Northern District of Texas where witnesses were “likely within the subpoena power of
the Northern District of Texas, but not the District of South Carolina”); see also
Fed.R.Civ.P. 45(c) (“A subpoena may command a person to attend a trial, hearing, or
deposition only . . . within 100 miles of where the person resides, is employed, or regularly
transacts business in person.”).
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As for the final factor, “the interest of justice weighs heavily in favor of transfer
when a related action is pending in the transferee forum.” D2L Ltd. v. Blackboard, Inc.,
671 F.Supp.2d 768, 783 (D.Md. 2009) (citation omitted). There are currently three putative
nationwide class actions pending in the Northern District of California that are related to
the matter before this Court. See I.C. v. Zynga Inc., No. 4:20-cv-01539 (N.D.Cal. filed
Mar. 2, 2020); Johnson v. Zynga Inc., No. 4:20-cv-02024 (N.D.Cal. filed Mar. 23, 2020);
Martinez v. Zynga Inc., No. 4:20-cv-02612 (N.D.Cal. filed Apr. 15, 2020). These cases,
which have been marked as related to one another and assigned to a single judge, involve
the same data breach, same putative class, and same statutory claims as the instant case.
Because litigating this case in the Northern District of California would “promote judicial
economy and consistency of results,” the interest of justice weighs strongly in favor of
transfer. See Byerson v. Equifax Info. Servs., LLC, 467 F.Supp.2d 627, 636 (E.D.Va. 2006)
(holding that transfer was appropriate where earlier-filed related class actions were pending
in another district). For these reasons, transfer is appropriate under § 1404(a).
In sum, the Court finds that Plaintiffs consented to a mandatory forum-selection
clause and, in any event, the § 1404(a) factors strongly favor transfer. As such, the Court
will immediately transfer this matter to the Northern District of California.

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III.

CONCLUSION

For the foregoing reasons, the Court will grant Zynga’s Motion to Transfer Case
(ECF No. 11). A separate Order follows.
Entered this 5th day of May, 2021.

/s/
George L. Russell, III
United States District Judge

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