LASOFF v. AMAZON.COM, INC.
MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 1/28/2016. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-2886 (MAS) (DEA)
SHIPP, District Judge
This matter comes before the Court on Amazon.com, Inc.'s 1 ("Defendant") motion to
transfer venue pursuant to 28 U.S.C. § 1404(a). (ECF No. 11.) Plaintiff Steven Lasoff("Plaintiff')
filedoppositionprose. (ECFNo.14.) Defendantreplied. 2 (ECFNo.18.) TheCourthascarefully
considered the parties' submissions and decides the matter without oral argument pursuant to Local
Defendant asserts that Plaintiff improperly pled "Amazon.com, Inc." as the defendant in this
matter, when the proper entity to be pled is "Amazon Services LLC," as that is the entity that owns
and operates the Amazon.com website and related services. (Def.'s Moving Br. 2 n.l, ECF No.
11-1.) Defendant further states that Amazon Services LLC does not object to its substitution as
the proper party. (Id.)
On January 5, 2016, Angela Christine Vidal entered an appearance on behalf of Plaintiff and filed
a "letter brief in lieu of a more formal brief as Plaintiff's supplementary opposition to Defendant's
Motion to Transfer Venue." (ECF Nos. 19, 20.) At the time this "supplementary opposition" was
filed, the motion was fully briefed. Thus, Plaintiffs further submission constitutes an improper
sur-reply. Per Local Civil Rule 7.1 (d)(6), sur-replies are not permitted unless leave is granted by
the Judge to whom the case is assigned. It is in the Court's discretion to disregard any sur-reply
submitted without the permission of the Court, and permission is generally denied where the record
and prior submissions are deemed sufficient. Plaintiff did not seek permission, and the Court did
not give permission for this "supplementary opposition" to be filed. Furthermore, this submission
is not necessary as the prior record before the Court is sufficient to decide the motion. Thus, the
Court will not consider it.
Civil Rule 78.1. For the reasons stated below, Defendant's motion to transfer venue to the United
States District Court for the Western District of Washington pursuant to 28 U.S.C. § 1404(a) is
Plaintiff is a New Jersey resident and seller of artificial turf products marketed under the
term "InGrass." (Compl. , 1, ECF No. 1.) On December 1, 2008, Plaintiff accepted the Amazon
Services Business Solutions Agreement 3 (the "BSA") in order to begin selling his artificial turf
products on Amazon.com. (Compl., Ex. E, ECF No. 105; Deel. of Deserae Weitman, Ex. A
("BSA"), ECF No. 11-2.) The BSA includes a forum selection clause and choice-of-law provision
that requires any dispute Plaintiff has with Amazon related to the BSA to be resolved in
Washington courts applying Washington law. (BSA, 18.) Specifically, the BSA provides:
This Agreement will be governed by the laws of the State of
Washington, without reference to rules governing choice of laws or
the Convention on Contracts for the International Sale of Goods.
Any dispute with Amazon or its affiliates relating in any way to this
Agreement or your use of the Services ... shall be adjudicated in
any state or federal court in King County, Washington, and you
consent to exclusive jurisdiction and venue in such courts.
After accepting the BSA, Plaintiff began selling his products on Amazon.com using the
"InGrass" brand name. (Compl., 15.) In August 2013, Plaintiff alleges that he experienced a
The court can consider this document without converting the Rule 12(b)( 6) motion into one for
summary judgment because the Complaint relies upon the document, and its authenticity is
uncontested. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)
(holding that any "document integral to or explicitly relied upon in the complaint" may be
considered "without converting the motion [to dismiss] into one for summary judgment") (citation
omitted); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993) ("[A] court may consider an undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.").
substantial drop in sales of his company's products. (Id.
if 16.) Plaintiff further alleges that after
investigating the matter he discovered that Amazon allowed multiple sellers to add their artificial
turf products under InGrass's product listing on Amazon.com. (Id.) According to Plaintiff, the
sellers falsely identified their artificial turf products as InGrass artificial turf products. (Id.)
Following unfruitful communications with Defendant regarding the alleged
infringements, Plaintiff filed a Complaint in this Court alleging an array of trademark, anti-trust,
and unfair practices claims against Defendant. (Id.
ifif 19-33.) Based on the forum selection clause
in the BSA, Defendant now moves to transfer venue to the United States District Court for the
Western District of Washington pursuant to 28 U.S.C. § 1404(a).
A federal district court may transfer a civil action to a different venue under 28 U.S.C.
§ 1404(a) or§ 1406(a). Section 1404(a) states that "[f]orthe convenience of parties and witnesses,
in the interest ofjustice, a district court may transfer any civil action to any other district or division
where it might have been brought or to any district or division to which all parties have consented."
§ 1404(a). The Third Circuit has explained that "Section 1404(a) provides for the transfer of a
case where both the original and requested venue are proper." Jumara v. State Farm Ins. Co., 55
F.3d 873, 878 (3d Cir. 1995). When deciding a motion to transfer venue, a district court should
remember that "the plaintiffs choice of venue should not be lightly disturbed." Id. at 878-79.
In conducting its evaluation, the Court must balance various private and public interests
related to the transfer. Id. The private interest factors include:
 plaintiffs forum preference as manifested in the original choice,  the
defendant's preference,  whether the claim arose elsewhere,  the convenience
of the parties as indicated by their relative physical and financial condition,  the
convenience of the witnesses-but only to the extent that the witnesses may actually
be unavailable for trial in one of the fora, and  the location of books and records
(similarly limited to the extent that the files could not be produced in the alternative
Id. (internal citations omitted). The public interest factors include:
 the enforceability of the judgment;  practical considerations that could make
the trial easy, expeditious, or inexpensive;  the relative administrative difficulty
in the two fora resulting from court congestion;  the local interest in deciding
local controversies at home;  the public policies of the fora; and  the
familiarity of the trial judge with the applicable state law in diversity cases.
Id. at 879-80 (internal citations omitted). It is the movant's burden to prove that transfer is
Applicability of the Forum Selection Clause
It is well established that a forum selection clause is "prima facie. valid and should be
enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the
circumstances." Gen. Eng'g Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352, 356 (3d Cir.
1986) (quoting The Bremen v. Zapatha Off-Shore Co., 407 U.S. 1, 10 (1972)). "Whether or not a
forum selection clause applies depends on what the specific clause at issue says." Wyeth & Brother
Ltd. v. Cigna Int'/ Corp., 119 F.3d 1070, 1075 (3d Cir. 1997). Thus, courts must look to the
language of the forum selection clause to determine its scope. Schering Corp. v. First Databank,
Inc., 479 F. Supp. 2d 468, 470 (D.N.J. 2007). A clause governing claims "related to" or
"concerning" the parties' agreement applies to a broader range of claims than a clause governing
claims "arising under" the agreement. Id. at 470-71.
Here, the forum selection clause provides: "Any dispute with Amazon or its affiliates
relating in any way to this Agreement or your use of the Services ... shall be adjudicated in any
state or federal court in King County, Washington, and you consent to exclusive jurisdiction and
venue in such courts." (BSA 1 18.) Plaintiff does not contest that he entered into the BSA or that
it contained the forum selection clause. Rather, Plaintiff argues that the clause is irrelevant because
Plaintiff has not sued Defendant under the BSA or for any claims arising under the BSA. (Pl.' s
Opp'n Br. 3, ECF No. 14.) Plaintiff asserts that he instead has sued Defendant for violations of
state and federal law under rights that exist independent of any agreement.
The forum selection clause in the BSA is broadly worded. It utilizes the language "any
dispute relating in any way," as opposed to the more narrow "arising under" language. Courts in
this District have found that clauses using the phrase "relating to" indicate that the scope of the
clause is subject to a broader interpretation. See Schering Corp., 479 F. Supp. 2d at 470; Parts
Geek, LLC v. U.S. Auto Parts Network, Inc., No. 09-5578, 2010 WL 1381005, at *6 (D.N.J. Apr.
1, 2010). It is clear that this action relates to the BSA because all of Plaintiff's claims arise from
his use of Defendant's services or directly out of his selling relationship with Defendant.
Specifically, Plaintiff asserts that Defendant used his common law trademark in marketing and
advertising. Furthermore, Plaintiff alleges that Defendant violated the Lanham Act by allowing
multiple sellers to use the "lnGrass" brand name without his authorization. However, those
advertisements and Plaintiff's product listings only occurred because Plaintiff made his products
available on Amazon.com. Because the crux of the Complaint is that Defendant allegedly allowed
multiple sellers to use the "InGrass" brand name on Amazon.com without his authorization, all of
his claims not only relate to the BSA which he entered into, but also relate to his use of Amazon's
services. Therefore, Plaintiff's claims are subject to the forum selection clause.
Applicability of§ 1404(a) Considerations
The United States Supreme Court has held that § 1404(a) provides an appropriate
mechanism for enforcement of a forum-selection clause. Alt. Marine Constr. Co. v. U.S. Dist.
Court for the W.D. Tex., 134 S. Ct. 568, 581 (2013). Section 1404(a) requires that a forum-
selection clause be "given controlling weight in all but the most exceptional cases." Id. In a typical
case not involving a forum-selection clause, a district court considering a § 1404(a) motion must
evaluate both the convenience of the parties and various public-interest considerations. 28 U.S.C.
§ 1404(a); Jumara, 55 F.3d at 879. Ordinarily, the district court would weigh the relevant factors
and decide whether transfer would serve "the convenience of parties and witnesses" and otherwise
promote "the interest of justice." 28 U.S.C. § 1404(a); Jumara, 55 F.3d at 879. When the parties
have agreed to a valid forum-selection clause, however, the analysis changes and the district courts
must "adjust their usual §1404(a) analysis in three ways." Alt. Marine Constr. Co., 134 S. Ct. at
581. First, the plaintiffs choice of forum merits no weight, and instead, the plaintiff bears the
burden of establishing that transfer to the agreed-upon forum would be unwarranted. Id. at 28182. Second, the parties waive the right to challenge the preselected forum as inconvenient or less
convenient for themselves or their witnesses, or for their pursuit of the litigation. Id. Thus, the
Court must deem the private-interest factors to weigh entirely in favor of the preselected forum.
Id. Third, when a party "flouts" its contractual obligation under the forum selection clause, "a
§ 1404(a) transfer of venue will not carry with it the original venue's choice-of-law rules-a factor
that in some circumstances may affect public-interest considerations." Spy Phone Labs LLC v.
Google, Inc., 2015 WL 4773159, at *2 (D.N.J. Aug. 13, 2015) (quoting Alt. Marine Constr. Co.,
134 S. Ct. at 581 ).
Accordingly, the Court gives Plaintiffs choice of forum no weight.
circumstances, a party can defeat transfer only if it can show that there are prevailing public interest
factors." PNY Techs., Inc. v. Miller, Kaplan, Arase & Co., LLP, No. 14-4150, 2015 WL 1399199,
at *4 (D.N.J. Mar. 24, 2015). First, judgment in this action would be equally enforceable in
Washington and New Jersey. Second, the likelihood that parties, documents, and witnesses will
have to be transported from one forum to another regardless of where this case is litigated means
that "practical considerations that could make the trial easy, expeditious, or inexpensive" do not
favor either forum. Yocham v. Novartis Pharms. Corp., 565 F. Supp. 2d 554, 559 (D.N.J. 2008).
Third, the relative administrative difficulties is a neutral factor since either court could effectively
manage this case. Fourth, there are no public policy or local interests that weigh strongly either
way. Finally, while the Court in New Jersey is capable of effectively applying Washington law,
the BSA contains a choice-of-law provision requiring the application of Washington law by a
Washington court. This factor weighs strongly in favor of transfer. Balancing these factors, they
weigh in favor of transferring this case to the Western District of Washington.
For the reasons set forth above, Defendant's motion to transfer is granted. An order
consistent with this Memorandum Opinion will be entered.
s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE
Dated: January 28, 2016
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?