Janson et al v. LegalZoom.com, Inc.

Filing 17

MOTION to dismiss case Without Prejudice for Improper Venue filed by Robert M. Thompson on behalf of LegalZoom.com, Inc.. Suggestions in opposition/response due by 3/15/2010 unless otherwise directed by the court. (Attachments: # 1 Exhibit Declaration of Edward R. Hartman)(Thompson, Robert)

Janson et al v. LegalZoom.com, Inc.

Doc. 17

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION TODD JANSON, GERALD T. ARDREY, CHAD M. FERRELL, and C & J REMODELING LLC, on behalf of themselves and on behalf of all others similarly situated, Plaintiffs, Case No. 2:10-cv-04018-NKL v. LEGALZOOM.COM, INC., Defendant. MOTION TO DISMISS WITHOUT PREJUDICE FOR IMPROPER VENUE Defendant LegalZoom.com, Inc. ("LegalZoom") hereby moves the Court to dismiss Plaintiffs' Petition without prejudice for improper forum pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure. Under the forum selection clause to which Plaintiffs assented in purchasing documents on the LegalZoom website, exclusive venue lies in the courts of the city of Los Angeles, California. 1. On December 17, 2009, Plaintiff Todd Janson commenced this action by filing a

Class Action Petition against LegalZoom in the Circuit Court of Cole County, Missouri, captioned Todd Janson on behalf of Himself and all Missourians similarly Situated v. LegalZoom, Inc., No. 09AC-CC00737 ("Original Petition"). On January 15, 2010, Mr. Janson and additional Plaintiffs Gerald T. Ardrey, Chad M. Ferrell, and C & J Remodeling LLC filed an Amended Class-Action Petition captioned Todd Janson, Gerald T. Ardrey, Chad M. Ferrell and C & J Remodeling LLC, on behalf of themselves and on behalf of all others similarly situated v. Legalzoom.com, Inc., No. 09AC-CC00737 ("Amended Petition" or "Am. Petition").

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2.

In the Amended Petition, Plaintiffs seek to represent a class consisting of "[a]ll

persons or entities in the state of Missouri that paid fees to LegalZoom for the preparation of legal documents from December 18, 2004 to the present." (Am. Petition ¶ 19.) 3. On February 5, 2010, LegalZoom timely removed the action to this Court on

diversity grounds pursuant to the Class Action Fairness Act, 28 U.S.C. section 1332(d). 4. LegalZoom's principal business is to provide an online platform for customers to

prepare their own legal documents. Customers choose a product or service suitable to their needs and input data into a questionnaire. Where applicable, the LegalZoom platform then generates a document using the product and data provided by the customer. (Declaration of Edward R. Hartman in Support of Motion to Dismiss ("Hartman Declaration"), submitted with this Motion, at ¶ 3.) 5. Count I of the Amended Petition alleges that LegalZoom is engaged in the

unlawful practice of law in violation of RSMo. section 484.010 et seq. (Am Petition ¶¶ 34-39.) Count II seeks money had and received. (Id. ¶¶ 40-44.) Count III seeks monetary damages under the Missouri Merchandising Practices Act ("MMPA"), RSMo. section 407.010 et seq. (Am. Petition ¶¶ 45-51.) Count IV seeks injunctive relief under the MMPA. (Id. ¶¶ 52-59.) 6. Plaintiffs' Amended Petition acknowledges that LegalZoom conducts its business

through its website, www.legalzoom.com. (Am. Petition ¶ 6.) LegalZoom conducts no business with customers outside its website. (Hartman Declaration ¶ 4.) The Amended Petition alleges that Plaintiffs purchased documents from LegalZoom through LegalZoom's website. (Am. Petition ¶¶ 13, 15.) 7. In the Amended Petition, Plaintiffs Ardrey, Farrell, and C & J Remodeling allege

that their purchase of documents from LegalZoom was made "in late January 2008." (Id. ¶ 15.)

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In the Original Petition and an attached exhibit, Plaintiff Janson alleged that his purchase of documents from LegalZoom was made in November 2009. (Original Petition ¶¶ 10-13 and Exhibit 1 thereto.) 8. In both January 2008 and November 2009, the LegalZoom website's "Payment

Information" page, on which customers entered their contact and shipping information, their credit card information, and any special instructions, contained a confirmation button reading "Proceed to Checkout." (Hartman Declaration ¶ 5 and Exhibit A attached thereto.) Although the webpage underwent minor cosmetic changes between January 2008 and November 2009, at all times next to the confirmation button was a legend reading "By clicking the Proceed to Checkout button, you agree to our Terms of Service." (Id.) The words "Terms of Service" were

hyperlinked to LegalZoom's Terms of Service in effect in January 2008 and November 2009, both of which included a forum selection clause reading "I agree that California law shall govern any disputes arising from my use of this website, and that the courts of the city of Los Angeles, state of California, shall have exclusive jurisdiction over any disputes." (Hartman Declaration ¶¶ 6-7 and Exhibits B and C attached thereto.) 9. Plaintiffs are bound by the forum selection clause on the LegalZoom website

because their use of that website gave rise to a valid and enforceable contract between each Plaintiff and LegalZoom, and because Plaintiffs were on notice of and assented to the contract terms, including the forum selection clause. The forum selection clause is enforceable because it is not unreasonable and does not contravene any public policy of Missouri. WHEREFORE, Defendant LegalZoom.com, Inc. respectfully moves the court to dismiss without prejudice Plaintiffs' Amended Petition for improper venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure.

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Dated: February 26, 2010 Respectfully submitted, BRYAN CAVE LLP By: /s/ Robert M. Thompson Robert M. Thompson MO #38156 James T. Wicks MO #60409 One Kansas City Place 1200 Main Street, Suite 3500 Kansas City, MO 64105 Tel.: [phone] Fax: [phone] John Michael Clear MO #25834 Michael G. Biggers MO #24694 James R. Wyrsch MO #53197 One Metropolitan Square ­ Suite 3600 211 North Broadway St. Louis, MO 63102 Tel.: [phone] Fax: [phone] Attorneys for LegalZoom.com, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on February 26, 2010, the foregoing was electronically filed with the Clerk of Court and served by operation of the Court's electronic filing system upon all counsel of record. Timothy Van Ronzelen Matthew A. Clement Kari A. Schulte COOK, VETTER, DOERHOFF & LANDWEHR, PC 231 Madison Jefferson City, MO 65101 [e-mail] [e-mail] [e-mail] David T. Butsch James J. Simeri Mathew R. Fields BUTSCH SIMERI FIELDS LLC 231 South Bemiston Ave., Suite 260 Clayton, MO 63105 [e-mail] [e-mail] [e-mail] Edward D. Robertson, Jr. Mary Doerhoff Winter BARTIMUS, FRICKLETON, ROBERTSON & GORNY 715 Swifts Highway Jefferson City, MO 65109 [e-mail] [e-mail] Randall O. Barnes RANDALL O. BARNES & ASSOCIATES 219 East Dunklin Street, Suite A. Jefferson City, MO 65101 [e-mail] Steven E. Dyer 10805 Sunset Office Drive, Suite 300 St. Louis, MO 63127 [e-mail]

/s/ Robert M. Thompson

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