5381 Partners LLC v. Shareasale.com, Inc

Filing 28

ORDER granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim: For the reasons set forth herein, the Court denies defendant's motion to dismiss this case and grants defendant's motion to transfer the proce edings. The Clerk of the Court is directed to transfer this action to the United States District Court for the Northern District of Illinois, pursuant to 28 U.S.C. § 1404(a). SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/23/2013. (Pilmar, Philip)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-4263 (JFB) (AKT)
_____________________

5381 PARTNERS LLC,
Plaintiff,
VERSUS

SHAREASALE.COM, INC.,
Defendant.
___________________
MEMORANDUM AND ORDER
September 23, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff 5381 Partners LLC (“plaintiff”
or “5381”) brings this action for fraud,
breach of contract, conversion, and unjust
enrichment against Shareasale.com, Inc.
(“defendant” or “ShareASale”). 5381 and
ShareASale entered into an agreement
where ShareASale marketed 5381’s
products on the internet, and 5381 paid
ShareASale commissions for successful
purchases. 5381 alleges that it paid
ShareASale over $100,000 in fraudulent
commissions based upon transactions that
never occurred.
Defendant now moves, pursuant to
Federal Rule of Civil Procedure 12(b)(3), to
dismiss the action for improper venue or, in
the alternative, to transfer the action,
pursuant to 28 U.S.C. § 1404(a), to the
United States District Court for the Northern
District of Illinois. For the reasons set forth
below, the Court grants defendant’s motion

to transfer. Accordingly, the action is
transferred to the Northern District of
Illinois.
In particular, the Court finds that the
contract at issue contained a presumptively
enforceable forum selection clause wherein
the parties agreed to litigate any claims
arising from defendant’s services in Illinois.
Plaintiff has not rebutted the uncontroverted
evidence that its employees had to
affirmatively click to accept the Merchant
Agreement (which contained the forum
selection clause) before it could become a
merchant
through
ShareASale.
By
affirmatively accepting the Merchant
Agreement, plaintiff agreed to be bound by
all of the terms contained therein, including
the forum selection clause, even if its
employees did not take the time to read
through the agreement in its entirety before
denoting their acceptance. Moreover,
plaintiff has not submitted any facts that

would make the enforcement of that clause
unreasonable or unjust, nor does it allege
facts from which this Court could conclude
that the clause is invalid. Accordingly,
defendant’s Illinois forum selection clause is
valid and enforceable.

clicks on a merchant’s advertisement and
subsequently makes a purchase on the
merchant’s website, the merchant pays both
the affiliate and defendant a commission.
(Id.)
In 2005, 5381 and ShareASale entered
into an agreement whereby ShareASale
arranged the placement of advertisements of
plaintiff’s product on affiliate websites. (Id.
¶ 1.) Plaintiff alleges that, “[i]n addition to
commissions on legitimate sales, over a sixyear period, [ShareASale] took over
$100,000 in fraudulent commissions from
5381 based upon transactions that had not in
fact taken place.” (Id.)

In addition, the other discretionary
factors courts consider in determining
whether to transfer venue weigh strongly in
favor of transfer in this case. For example,
the locus of operative facts in this action lies
within northern Illinois. Moreover, plaintiff
has failed to demonstrate that litigating this
case in Illinois, as opposed to New York,
would be inconvenient or unjust, or that it
would be financially prejudiced by such a
transfer. Because this action could have
appropriately been brought in the Northern
District of Illinois, a balancing of the
relevant factors weighs in favor of transfer,
and the interests of justice are served by
transfer in these circumstances, the Court, in
the exercise of its discretion, grants
defendant’s motion to transfer this case.1

B. Procedural History

I. BACKGROUND

Plaintiff filed this lawsuit on August 24,
2012. On January 7, 2013, defendant filed a
motion to dismiss. Plaintiff filed an
opposition to that motion on February 7,
2013, and defendant replied on February 21,
2013. The Court held oral argument on
March 15, 2013. The Court has fully
considered the submissions of the parties.

A. The Complaint

II. STANDARD OF REVIEW

The following facts are taken from the
complaint and are not findings of fact by the
Court.

A. Rule 12(b)(3) Motions
Enforcement of a forum selection clause
is an appropriate basis for a motion to
dismiss pursuant to Rule 12(b)(3) of the
Federal Rules of Civil Procedure. See
TradeComet.com LLC v. Google, Inc.
(“TradeComet.com LLC II”), 647 F.3d 472,
478 (2d Cir. 2011). To survive a Rule
12(b)(3) motion to dismiss, the plaintiff has
the burden of pleading venue. See Cold
Spring Harbor Lab. v. Ropes & Gray LLP,
762 F. Supp. 2d 543, 551 (E.D.N.Y. 2011).
If the court relies only on pleadings and
affidavits, the plaintiff need only make a
prima facie showing of venue. See Gulf Ins.

Defendant sells online advertising,
matching merchants (entities that wish to
advertise online) with affiliates (entities
willing to place advertisements on their
websites). (Compl. ¶ 9.) When a consumer
1

As discussed in detail infra, because the Court, in its
discretion, concludes that transfer is the appropriate
remedy, the Court elects to transfer the case to the
Northern District of Illinois pursuant to Section
1404(a), rather than to dismiss the case pursuant to
Rule 12(b)(3) of the Federal Rules of Civil
Procedure.

2

As set forth in detail below, even
assuming that plaintiff’s facts are true, and
drawing all inferences in plaintiff’s favor,
the Court concludes that the contract
between the parties contains a valid and
enforceable forum selection clause in which
plaintiff agreed to litigate the claims in the
instant lawsuit in Illinois. Because plaintiff
has alleged no facts that would provide
grounds to invalidate that forum selection
clause, an evidentiary hearing on this issue
is unnecessary.2

Co. v. Glasbrenner, 417 F.3d 353, 355 (2d
Cir. 2005). Thus, if an evidentiary hearing
on the question of venue has not been held,
“the Court accepts facts alleged in the
complaint as true and draws all reasonable
inferences in plaintiff’s favor.” Person v.
Google Inc., 456 F. Supp. 2d 488, 493
(S.D.N.Y. 2006) (alteration, citation, and
internal quotation marks omitted). The Court
is permitted, however, to consider facts
outside of the pleadings on a Rule 12(b)(3)
motion. See TradeComet.com LLC v.
Google, Inc. (“TradeComet.com LLC I”),
693 F. Supp. 2d 370, 375 n.3 (S.D.N.Y.
2010) (explaining that a court, in deciding a
motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(3), “may consider
evidentiary matters outside the pleadings, by
affidavit or otherwise, regarding the
existence of jurisdiction” (citation and
internal quotation marks omitted)).

2

In other cases, this Court has held evidentiary
hearings to determine whether a plaintiff assented to
a forum selection clause in connection with a website
purchase. See, e.g., Scherillo v. Dun & Bradstreet,
Inc., 684 F. Supp. 2d 313 (E.D.N.Y. 2010); Novak v.
Tucows, Inc., No. 06-CV-1909, 2007 WL 922306
(E.D.N.Y. Mar. 26, 2007). The Court has carefully
considered whether an evidentiary hearing is
necessary based upon the record before it and
concludes that such a hearing is unwarranted under
the particular circumstances of this case. In order to
trigger an evidentiary hearing, a party must submit
evidence creating a genuine issue of disputed fact
that requires resolution by the Court. Here, as
discussed infra, defendant has submitted thorough
evidence – including a sworn statement and exhibits
from its website – demonstrating, inter alia, that
plaintiff was expressly required to click a specific
box to accept the Merchant Agreement (which
included the forum selection clause) in order to
become a merchant. Plaintiff has submitted no
evidence, by affidavit or otherwise, to controvert this
evidence in any way. In its opposition to the motion
to dismiss, plaintiff argues that an evidentiary hearing
is necessary to determine whether the forum selection
clause is unconscionable. (Pl.’s Opp’n at 10.)
However, plaintiff does not claim that there are any
issues
of
disputed
fact
regarding
the
unconscionability of the forum selection clause. At
oral argument, plaintiff also claimed that an
evidentiary hearing was necessary to allow counsel to
cross-examine defendant’s witnesses regarding
whether the website appeared in 2005 as it does in
defendant’s submissions. However, plaintiff has not
submitted an affidavit from any of its employees, nor
has plaintiff submitted any documentary evidence,
suggesting that the ShareASale website did not
function in 2005 as it is represented in defendant’s

If there are disputed facts relevant to the
venue determination, it may be appropriate
for the district court to hold an evidentiary
hearing, where the plaintiff must
demonstrate venue by a preponderance of
the evidence. See New Moon Shipping Co. v.
MAN B&W Diesel AG, 121 F.3d 24, 29 (2d
Cir. 1997) (“A disputed fact may be
resolved in a manner adverse to the plaintiff
only after an evidentiary hearing . . . [and]
no disputed fact should be resolved against
[the resisting] party until it has had an
opportunity to be heard.” (citations
omitted)); see also Murphy v. Schneider
Nat’l, Inc., 362 F.3d 1133, 1139 (9th Cir.
2004) (“To resolve such motions when
genuine factual issues are raised, it may be
appropriate for the district court to hold a
Rule 12(b)(3) motion in abeyance until the
district court holds an evidentiary hearing on
the disputed facts. Whether to hold a hearing
on disputed facts and the scope and method
of the hearing is within the sound discretion
of the district court.” (citations omitted)).
3

B. Section 1404(a) Motions

(2d Cir. 1992) (citing Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 29 (1988)). The
burden of demonstrating that the action
should be transferred to another district lies
with the moving party, D.H. Blair & Co. v.
Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006),
and the plaintiff’s choice of forum “should
not be disturbed unless the balance of
factors tips decidedly in favor of a transfer,”
Wildwood Imps. v. M/V Zim Shanghai, No.
04-CV-5538, 2005 WL 425490, at *3
(S.D.N.Y. Feb. 20, 2005); see also Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 255
(1981) (explaining that there generally is “a
strong presumption in favor of the plaintiff’s
choice of forum”).

Rather than dismiss an action due to the
existence of a valid and enforceable forum
selection clause, a court may exercise its
discretionary power to transfer the action
“[f]or the convenience of parties and
witnesses, in the interest of justice . . . to any
district or division in which it could have
been brought,” pursuant to 28 U.S.C.
§ 1404(a). “[M]otions for transfer lie within
the broad discretion of the district court and
are determined upon notions of convenience
and fairness on a case-by-case basis.” In re
Cuyahoga Equip. Corp., 980 F.2d 110, 117
submissions. Because plaintiff has submitted no
evidence to controvert defendant’s evidence on this
issue or any other issue, no evidentiary hearing is
warranted. See TradeComet.com LLC v. Google, Inc.,
435 F. App’x 31, 33 (2d Cir. 2011) (summary order)
(“We conclude [] that TradeComet failed to raise any
material issue of fact as to Google’s communication
of the terms of the August 2006 agreement that
required an evidentiary hearing.”); see also Hancock
v. Am. Tel. & Tel., Co., 701 F.3d 1248, 1265 (10th
Cir. 2012) (“Because Plaintiffs failed to raise a
genuine factual dispute regarding acceptance of the
U-verse terms at the point of installation, the district
court did not err in denying an evidentiary hearing.”);
Magi XXI, Inc. v. Stato Della Citta Del Vaticano, 818
F. Supp. 2d 597, 610 n.14 (E.D.N.Y. 2011) (“Even
taking as true all facts submitted by plaintiff, and
viewing all facts in the light most favorable to
plaintiff, the Court finds that plaintiff has not carried
its heavy burden of rebutting the presumption of
enforceability of the forum selection clauses. Thus, it
is unnecessary to hold an evidentiary hearing.”);
Universal Grading Serv. v. eBay, Inc., 08-CV-3557,
2009 WL 2029796, at *12 (E.D.N.Y. June 10, 2009)
(“Accordingly, because there is no dispute that
persons or entities desiring to become eBay users are
required to assent to the User Agreement in force at
the time, and because plaintiff Callandrello alleges
that he became an eBay user, and does not dispute
eBay’s allegation that he became an eBay user in
2005, when the 2003 User Agreement was in force, I
conclude without need for an evidentiary hearing that
the forum selection clause contained in the 2003 User
Agreement was reasonably communicated to plaintiff
Callandrello.” (internal citation omitted)).

III. DISCUSSION
A. Whether Defendant’s Forum Selection
Clause is Valid and Enforceable
Defendant’s argument that venue in the
Eastern District of New York is improper is
based on the forum selection clause
contained within the Merchant Agreement
of its website. That clause provides that all
claims brought in connection with the
Merchant Agreement must be brought in the
state or federal courts of Illinois. Defendant
contends that plaintiff explicitly agreed to be
bound by the clause because, like all
prospective merchants, it agreed to be bound
by the terms of the Merchant Agreement.
As discussed in detail below, because the
uncontroverted evidence demonstrates that
defendant’s mandatory forum selection
clause was reasonably communicated to
plaintiff, and plaintiff has failed to satisfy its
burden of showing that enforcement of the
clause would be either unreasonable or
unjust, the Court finds defendant’s clause –
requiring claims to be brought in Illinois – to
be valid and enforceable.

4

such reasons as fraud or overreaching.’” Id.
at 383-84 (quoting M/S Bremen, 407 U.S. at
15); see also Carnival Cruise Lines, 499
U.S. at 595 (finding that plaintiffs failed to
satisfy the “heavy burden of proof” required
to invalidate clause for “inconvenience”).3

1. Applicable Law
Under the standard set forth by the
Supreme Court in M/S Bremen v. Zapata
Off-Shore Co., forum selection clauses are
prima facie valid and should control
questions of venue absent a “strong
showing” that enforcement would be
“unreasonable and unjust, or that the clause
was invalid for such reasons as fraud or
over-reaching.” 407 U.S. 1, 10, 15 (1972).
The Supreme Court has also stated that a
forum selection clause can bind the parties
even where the agreement in question is a
form consumer contract that is not subject to
negotiation. See Carnival Cruise Lines, Inc.
v. Shute, 499 U.S. 585, 593-94 (1991).
Forum selection clause language must,
however, be mandatory to be enforced. See
John Boutari & Son, Wines & Spirits, S.A. v.
Attiki Imps. & Distribs., 22 F.3d 51, 52-53
(2d Cir. 1994); see also Phillips v. Audio
Active Ltd., 494 F.3d 378, 386 (2d Cir.
2007) (“A forum selection clause is viewed
as mandatory when it confers exclusive
jurisdiction on the designated forum or
incorporates obligatory venue language.”).

3

As discussed in detail infra, the Merchant
Agreement at issue also contains a choice of law
provision mandating that the agreement be governed
by Illinois law. In the past, “[s]everal courts in this
Circuit have puzzled over what law to apply to this
analysis when the contract also contains a choice of
law provision.” Bluefire Wireless, Inc. v. Cloud9
Mobile Commc’ns, Ltd., No. 09 Civ. 7268, 2009 WL
4907060, at *2 (S.D.N.Y. Dec. 21, 2009). Some
district courts within the Circuit have suggested that
“the first and fourth steps of the analysis – whether
the clause was communicated to the non-moving
party and whether enforcement would be reasonable
– are procedural in nature and are to be analyzed
under federal law,” id., while the second and third
steps – interpretation of the meaning and scope of a
forum selection clause – shall be analyzed under state
law, see Prod. Res. Grp., L.L.C. v. Martin Prof’l, A/S,
907 F. Supp. 2d 401, 409 (S.D.N.Y. 2012) (citing
Phillips, 494 F.3d at 385 (stating in dicta that “[w]e
find less to recommend the invocation of federal
common law to interpret the meaning and scope of a
forum clause, as required by parts two and three of
our analysis”)). Here, given that both parties cite to
Second Circuit case law and neither party specifically
requests application of Illinois law (and neither party
argues that the result would be different under Illinois
law), the Court will analyze all four steps regarding
the enforceability of the forum selection clause under
federal law. See Phillips, 494 F.3d at 386 (“We will
assume from the parties’ briefing that they do not rely
on any distinctive features of English law and apply
general contract law principles and federal precedent
to discern the meaning and scope of the forum
clause.”); John Wyeth & Bro. Ltd. V. CIGNA Int’l
Corp., 119 F.3d 1070, 1074 (3d Cir. 1997) (“The
parties [] make little reference to English contract
law. In view of the parties’ briefing, we will assume
that they do not rely on any distinctive features of
English law and we will therefore base our decision
on general contract law principles.”); Renaissance
Nutrition, Inc. v. Burkard, No. 12-CV-691, 2013 WL
1855767, at *4 n.1 (W.D.N.Y. Apr. 11, 2013)
(analyzing forum selection clause under general
contract law and federal precedent when “the parties

The Second Circuit has developed a
four-step framework to determine the
validity of forum selection clauses in the
context of motions to dismiss. Under this
framework, a clause is “presumptively
enforceable” if the moving party can
demonstrate the following: (1) the clause
was reasonably communicated to the party
challenging enforcement; (2) the clause is
mandatory rather than permissive in nature;
and (3) the claims involved are subject to the
clause. See Phillips, 494 F.3d at 383. In the
final step, the burden then shifts to the nonmoving party who, to overcome the
presumption of enforceability, must make a
“sufficiently
strong
showing
that
‘enforcement would be unreasonable or
unjust, or that the clause was invalid for
5

2. Analysis

website states: “Make sure to read and
understand our Privacy Policy and Terms of
Agreement,” and that notice contains a
hyperlink to a webpage containing the
Merchant Agreement. (Littleton Decl. ¶ 6;
Littleton Decl. Ex. A.) After merchants
complete this page, they are taken to a
second page to activate their account. The
website advises prospective merchants: “By
clicking and making a request to Activate,
you agree to the terms and conditions in the
Merchant Agreement.” (Littleton Decl. ¶ 7;
Littleton Decl. Ex. B.) The phrase
“Merchant Agreement” is a hyperlink to a
webpage
containing
the
Merchant
Agreement. (Littleton Decl. ¶ 7; Littleton
Decl. Ex. B; Def.’s Reply at 3 n.4.) The
merchant must click to active its account
and proceed. (Littleton Decl. ¶ 7; Littleton
Decl. Ex. B.) Screenshots attached to
Littleton’s declaration confirm these
representations.

The forum selection clause contained
within defendant’s Merchant Agreement on
its website is as follows:
JURISDICTIONAL ISSUES: This
Agreement shall be governed by
Illinois, USA law (except for conflict
of law provisions). The exclusive
forum for any actions brought in
connection with this Agreement shall
be in the state and federal courts in
and for the State of Illinois, USA and
You consent to such jurisdiction. The
application of the United Nations
Convention on the International Sale
of Goods is expressly excluded.
(Decl. of Brian Littleton (“Littleton Decl.”)
Ex. C, Merchant Agreement, at 4.)
Defendant has submitted uncontroverted
evidence demonstrating that plaintiff could
not have become a merchant with
ShareASale without first agreeing to the
website’s Merchant Agreement, which
included the forum selection clause.
According to Brian Littleton (“Littleton”),
defendant’s founder and CEO, merchants
“encounter two screens in the process for
signing up for ShareASale.” (Littleton Decl.
¶ 5.) On the first screen, a merchant enters
basic information, such as name, website,
and tax-ID number. (Id. ¶ 6; Littleton Decl.
Ex. A.) Prior to entering the information, the

Notably, plaintiff does not submit any
evidence to dispute defendant’s evidence
that the process described by Littleton was
in place when plaintiff became a merchant.
Instead, plaintiff’s counsel stated at oral
argument that the person who signed up for
ShareASale is no longer accessible to the
company, and, therefore, that plaintiff’s
counsel did not know whether that person
completed the signup process as described
by Littleton and confirmed by the
screenshots.
Because
defendant
has
submitted uncontested evidence that plaintiff
had to encounter the aforementioned sign up
process, the Court finds that plaintiff clicked
the box confirming that it had agreed to the
Merchant Agreement (which included the
Illinois forum selection clause). See, e.g.,
Fteja v. Facebook, Inc., 841 F. Supp. 2d
829, 834-35 (S.D.N.Y. 2012) (explaining
that declarations filed by defendant’s
employees, screenshots of defendant’s
website, and defendant’s current website

have not argued that the contractual language at issue
should be interpreted under Pennsylvania law”);
Prod. Res. Grp., 907 F. Supp. 2d at 409 (holding that,
because the parties did not cite to English or Welsh
law, “it is appropriate to assume that the Parties do
not rely on any distinctive feature of English or
Welsh law, and acquiesce to application of federal
common law”); Bluefire Wireless, 2009 WL
4907060, at *2 (analyzing forum selection clause
under federal precedent because the parties did not
cite to English law).

6

screens are there,” the Second Circuit
concluded that a “reference to the existence
of license terms on a submerged screen is
not sufficient to place consumers on inquiry
or constructive notice of those terms,” and
that the plaintiffs could therefore not be said
to have assented to defendant’s arbitration
clause when they clicked to download the
site’s plug-in program. Id. at 32. However,
the Court noted that “contracts arising from
Internet use” have been found in situations
where there is “much clearer notice than in
the present case that a user’s act would
manifest assent to contract terms.” Id. at 33
(citing cases).

indicate that potential members must agree
to the website’s terms of service, which
included a forum selection clause, in order
to join the site, thereby negating the force of
plaintiff’s argument that he does not
remember agreeing to the website’s forum
selection clause when he joined).
The Court must next consider whether
the fact that plaintiff agreed to the Merchant
Agreement indicates that defendant’s forum
selection
clause
was
reasonably
communicated to it. Several courts across
the United States have engaged in a
developing discussion of what conditions
and actions may manifest one’s assent to
contractual terms over the Internet. Thus, to
determine whether defendant’s clause was,
in fact, reasonably communicated to
plaintiff, the Court places this case on the
spectrum of such cases.

Since Specht, courts have found such
“clearer notice” that Internet user actions
will amount to contractual assent in cases
involving
conspicuous
browsewrap
agreements and in cases involving clickwrap
agreements. In a browsewrap agreement,
“website terms and conditions of use are
posted on the website typically as a
hyperlink at the bottom of the screen.”
Fteja, 841 F. Supp. 2d at 836 (citation and
internal quotation marks omitted)). A
browsewrap agreement “usually involves a
disclaimer that by visiting the website –
something that the user has already done –
the user agrees to the Terms of Use not
listed on the site itself but available only by
clicking a hyperlink.” Id. at 837. Several
courts
have
enforced
browsewrap
agreements where the circumstances
indicated that website users “‘must have had
actual or constructive notice of the site’s
terms, and have manifested their assent to
them,’” id. at 836 (quoting Cvent, Inc. v.
Eventbrite, Inc., 739 F. Supp. 2d 927, 93738 (E.D. Va. 2010)), i.e., whether the
hyperlink to the terms and conditions of use
was made apparent to the average user. A
clickwrap agreement, by contrast, requires a
user to take more affirmative action; the user
must click an “I agree” box after being

The Second Circuit has held that “a
consumer’s clicking on a [] button does not
communicate assent to contractual terms if
the offer did not make clear to the consumer
that clicking on the [] button would signify
assent to those terms.” Specht v. Netscape
Commc’ns Corp., 306 F.3d 17, 29-30 (2d
Cir. 2002). At issue in Specht was an
arbitration clause contained in license terms
on a website that plaintiffs allegedly
accepted when they downloaded a plug-in
program from the site. The Second Circuit
explained that when plaintiffs were
prompted to download free software from
the site at the click of a button, they could
not see a reference to any license terms that
they would be accepting by clicking because
the sole reference to any license terms was
on a screen that the plaintiffs could have
only seen if they decided to scroll down
before first acting on the invitation to
download. Id. at 31-32. Noting that “there is
no reason to assume that viewers will scroll
down to subsequent screens simply because
7

clause subsequent to the purchase. 499 U.S.
at 587. The court also referenced Effron v.
Sun Line Cruises, Inc., where the Second
Circuit held that the forum selection clause
contained on the back of a ticket bound
plaintiffs at the moment they accepted their
tickets, even though they had merely been
referred to that clause (rather than shown it)
in promotional materials that they received
prior to their purchase. 67 F.3d 7, 11 (2d
Cir. 1995). Based on these two non-Internet
cases, as well as cases in which pure
browsewrap and pure clickwrap agreements
over the Internet were enforced, the Fteja
court
reasoned
that
“clicking
the
hyperlinked phrase [on Facebook’s website]
is the twenty-first century equivalent of
turning over the cruise ticket. In both cases,
the consumer is prompted to examine terms
of sale that are located somewhere else.”
Fteja, 841 F. Supp. 2d at 839. Accordingly,
the court held that because plaintiff was
“informed of the consequences of his
assenting click and he was shown,
immediately below, where to click to
understand
those
consequences,”
Facebook’s Terms of Use were “reasonably
communicated” to plaintiff. Id. at 840.

presented with a list of the terms and
conditions of use in order to receive access
to a particular product. See Schnabel v.
Trilegiant Corp., 697 F.3d 110, 129 n.18 (2d
Cir. 2012) (explaining the difference
between clickwrap and browsewrap
agreements). Forum selection clauses
contained in clickwrap agreements have
been enforced by numerous courts within
this Circuit. See, e.g., Centrifugal Force,
Inc. v. Softnet Commc’n, Inc., 08 Civ. 5463,
2011 WL 744732, at *7 (S.D.N.Y. Mar. 1,
2011); TradeComet.com LLC I, 693 F.
Supp. 2d at 377-78; Person, 456 F. Supp. 2d
at 496-97; Novak v. Overture Servs., Inc.,
309 F. Supp. 2d 446, 451-52 (E.D.N.Y.
2004).
In Fteja, the Southern District of New
York recently contemplated a hybrid of a
browsewrap and a clickwrap agreement. 841
F. Supp. 2d at 835-41. The court described
defendant Facebook’s Terms of Use as
“somewhat like a browsewrap agreement in
that the terms are only visible via a
hyperlink, but also somewhat like a
clickwrap agreement in that the user must do
something else – click ‘Sign Up’ – to assent
to the hyperlinked terms. Yet, unlike some
clickwrap agreements, the user can click to
assent whether or not the user has been
presented with the terms.” Id. at 838. In
determining whether Facebook’s Terms of
Use had been “reasonably communicated”
to plaintiff, given that consumers were
required to take further action not only to
assent to the terms, but also to view them,
the court considered relevant Supreme Court
and Second Circuit contract precedent
outside of the Internet context. The court
cited Carnival Cruise Lines, where the
Supreme Court upheld a forum selection
clause on the back of a cruise ticket even
though the clause became binding at the
time of purchase, and the purchasers only
received the actual ticket containing the

The instant case presents circumstances
that are quite analogous to those in Fteja,
and the Court agrees with the Fteja court’s
analysis. Unlike the license terms at issue in
Specht, defendant’s reference to its
Merchant Agreement appears on the same
screen as the button a prospective merchant
must click in order to activate its account.
(See Littleton Decl. Ex. B.) Plaintiff did not
need to scroll or change screens in order to
be advised of the Merchant Agreement; the
existence of, and need to accept and consent
to, the Merchant Agreement was readily
visible. Moreover, whereas Facebook’s
Terms of Use were referenced below the
button a prospective user had to click in
order to assent, defendant’s reference to its
8

Merchant Agreement appears adjacent to the
activation button (id.), thereby making it
even more clear that prospective merchants
of ShareASale are aware that by clicking the
button to activate their account, they
manifest their assent to the Merchant
Agreement.4

noticed the link and reviewed the terms
before clicking on the acknowledgement
icon.’” Fteja, 841 F. Supp. 2d at 841
(alteration in original) (quoting Guadagno v.
E*Trade Bank, 592 F. Supp. 2d 1263, 1271
(C.D. Cal. 2008)).5
Although plaintiff argues that the facts
of this case are analogous to Hines v.
Overstock.com, Inc., 668 F. Supp. 2d 362
(E.D.N.Y. 2009), aff’d 380 F. App’x 22 (2d
Cir. 2010), that case is entirely
distinguishable. In Hines, the court found
that plaintiff did not have actual notice of an
arbitration
clause
contained
within
Overstock.com’s Terms and Conditions of
Use when defendant’s affidavit “conclusory
states that by accessing Overstock’s website,
an individual accepts Overstock’s Terms
and Conditions – but, crucially, does not
explain how a site-user such as Plaintiff is
made aware of the Terms and Conditions.”
Id. at 367. Notably, in that case, defendant
did not submit any evidence to rebut
plaintiff’s assertion that she “could not even

Plaintiff argues that it is not bound by
the forum selection clause because the
Merchant Agreement never appeared on the
screen during sign up and activation. (Pl.’s
Opp’n at 5.) As to the fact that plaintiff had
to click on a hyperlink to view the Merchant
Agreement (rather than view the agreement
on the same page where it had to indicate its
assent to the terms), the Court agrees with
the Fteja court’s analogizing of this situation
to cruise tickets – plaintiff was shown
precisely where to access the Merchant
Agreement before it agreed to them, and it
should have clicked on them in the same
way that one is expected to turn over a ticket
to learn of its terms. Moreover, plaintiff was
required to click to activate its account, and
the button plaintiff was required to click
appeared next to the statement, “By clicking
and making a request to Activate, you agree
to the terms and conditions in the Merchant
Agreement.” Thus, plaintiff had to click to
denote its acceptance of the Merchant
Agreement, which contained the forum
selection clause. In such circumstances,
“‘[a] reasonably prudent offeree would have

5

Moreover, the fact that plaintiff had to scroll
through the Merchant Agreement after clicking on
the hyperlink in order to get to the provision
containing the forum selection clause does not affect
the Court’s analysis. See, e.g., Scherillo v. Dun &
Bradstreet, Inc., 684 F. Supp. 2d 313, 322 (E.D.N.Y.
2010) (explaining that “[a] person who checks the
box agreeing to the terms and conditions of a
purchase on an internet site without scrolling down to
read all of the terms and conditions is in the same
position as a person who turns to the last page of a
paper contract and signs it without reading the
terms,” and thus concluding that “forum selection
clauses are ‘reasonably communicated’ to a webpage
user even where a user simply has to scroll down a
page to read the clause” (citing Feldman v. Google,
513 F. Supp. 2d 229, 237 (E.D. Pa. 2007) (“That the
user would have to scroll through the text box of the
Agreement to read it in its entirety does not defeat
notice because there was sufficient notice of the
Agreement itself and clicking ‘Yes’ constituted
assent to all of the terms.”)) (additional citations
omitted).

4

The Court notes that, in determining that the forum
selection clause was reasonably communicated to
plaintiff, it is solely relying on the second page of the
sign up process (in which a prospective merchant
must click to activate its account and is informed that
“By clicking and making a request to Activate, you
agree to the terms and conditions in the Merchant
Agreement”). The Court does not rely on the
preceding sign up page, which merely advises users
to “Make sure to read and understand our Privacy
Policy and Terms of Agreement,” and does not
require a click to confirm that the merchant has
accepted the Merchant Agreement.

9

(holding that “all disputes arising hereunder
shall be submitted to the exclusive
jurisdiction of the Courts of England and
Wales” was mandatory forum selection
clause); cf. Salis v. Am. Exp. Lines, 331 F.
App’x 811, 813 (2d Cir. 2009) (summary
order) (“Whether a forum selection clause is
mandatory depends on its language, and
generally courts will not enforce a clause
that specifies only jurisdiction in a
designated court without any language
indicating that the specified jurisdiction is
exclusive.”). Additionally, the claims in this
suit are subject to the clause because the
clause governs “any actions brought in
connection with” the Merchant Agreement
(Littleton Decl. Ex. C at 4). See, e.g., Salis,
331 F. App’x at 814 (finding that a clause
that, by its terms, applied to “[a]ny claim or
dispute arising under or in connection with”
a particular bill of lading applied to claims at
issue in the case, as those claims pertained
to the bill).6

see the link to [the Terms and Conditions]
without scrolling down to the bottom of the
screen – an action that was not required to
effectuate her purchase.” Id. In contrast, in
this case, defendant has submitted a
declaration and accompanying screenshots
detailing that a merchant is clearly advised
of the Merchant Agreement, and plaintiff
has not submitted any evidence that it did
not follow this activation process. Unlike in
Hines, where the “website did not prompt
her to review the Terms and Conditions and
[] the link to the Terms and Conditions was
not
prominently
displayed,”
id.,
ShareASale’s website has a link to the
Merchant Agreement on its activation page,
warns merchants that “[b]y clicking and
making a request to Activate, you agree to
the terms and conditions in the Merchant
Agreement,” and requires merchants to click
to activate an account.
In sum, the Court concludes that plaintiff
assented
to
ShareASale’s
Merchant
Agreement, meaning that the forum
selection clause contained therein was
reasonably communicated to it.

Plaintiff argues repeatedly throughout its
opposition to defendant’s motion that the
forum selection clause is “oppressive and its
enforcement would cause unfair surprise
verging on the unconscionable.” (Pl.’s
Opp’n at 8.) However, plaintiff has not met
its heavy burden of establishing that the
enforcement of defendant’s mandatory
forum selection clause, which was
reasonably communicated to it, would be

As to the second and third steps of the
analysis, the Court concludes that
defendant’s forum selection clause is
mandatory, and that the claims in this
lawsuit are subject to the clause. The choice
of forum is mandatory in this instance
because specific language regarding venue
has been included in the clause, specifying
that “exclusive forum” for all claims is in
the “state and federal courts in and for the
State of Illinois” (Littleton Decl. Ex. C at 4).
See Phillips, 494 F.3d at 386 (language
providing that “any legal proceedings that
may arise out of [the agreement] are to be
brought in England” is mandatory (alteration
in original and internal quotation marks
omitted)); Cfirstclass Corp. v. Silverjet PLC,
560 F. Supp. 2d 324, 328 (S.D.N.Y. 2008)

6

Nor is the clause’s application affected by the fact
that plaintiff’s fraud claim sounds in tort, and not
contract, because the viability of that claim depends
on the same operative facts as the claim for breach of
contract. See Bluefire Wireless, 2009 WL 4907060, at
*3 (“[A] forum selection clause will also encompass
tort claims if the tort claims ultimately depend on the
existence of a contractual relationship between the
parties, or if the resolution of the claims relates to
interpretation of the contract, or if the tort claims
involve the same operative facts as a parallel claim
for breach of contract.” (citation and internal
quotation marks omitted)).

10

clause was the result of fraud or
overreaching, or that its enforcement would
be against public policy under New York
law. Although plaintiff argues that the
Merchant Agreement is a “classic contract
of adhesion” (Pl.’s Opp’n at 9), courts have
routinely upheld forum selection clauses that
were not the product of an arms-length
negotiation. See, e.g., Carnival Cruise Lines,
499 U.S. at 593; Brodsky v. Match.com LLC,
No. 09 Civ. 5328, 2009 WL 3490277, at *3
(S.D.N.Y. Oct. 28, 2009) (“[A] forum
selection clause is not unenforceable even if
it appears in a contract of adhesion,
including so-called ‘click wrap’ contracts . .
. .” (internal citation omitted)); Person, 456
F. Supp. 2d at 493-98 (stating that Google’s
AdWords user agreement was a contract of
adhesion but upholding forum selection
clause in the agreement). Notably, “there is
no indication that [defendant] set [Illinois]
as the forum in which disputes were to be
resolved as a means of discouraging
[merchants] from pursuing legitimate
claims” because defendant “has its principal
place of business in [Illinois].” Carnival
Cruise Lines, 499 U.S. at 595; see also
Ward v. Royal Caribbean Cruise Lines, Ltd.,
No. CV 08-1077, 2009 WL 151490, at *3
(C.D. Cal. Jan 22, 2009) (upholding forum
selection clause which required all claims to
be resolved in same state defendant had its
primary place of business); cf. Callais v.
B.S.L. Cruises, Inc., No. 92 Civ. 370, 1992
WL 162938, at *2 (S.D.N.Y. June 29, 1992)
(upholding forum selection clause which
required all claims to be resolved in New
York, even though defendants’ principal
place of business was not in New York
because defendants had a “significant
presence” in the forum). This Court
similarly concludes, in the instant case, that
plaintiff has failed to show that the clause is
in any way unreasonable.

unreasonable. A clause is unreasonable if:
(1) its incorporation into the agreement was
the result of fraud or overreaching; (2) the
complaining party will be deprived of his
day in court due to the grave inconvenience
or unfairness of the selected forum; (3) the
fundamental unfairness of the chosen law
may deprive the plaintiff of a remedy; or (4)
the clause contravenes a strong public policy
of the forum state. Roby v. Corp. of Lloyd’s,
996 F.2d 1353, 1363 (2d Cir. 1993) (citing
M/S Bremen, 407 U.S. at 10, 15, 18 and
Carnival Cruise Lines, 499 U.S. at 595-96).
Although plaintiff argues that litigating this
dispute in Illinois “would cause undue
oppression” because plaintiff “has literally
zero connection to the State of Illinois”
(Pl.’s Opp’n at 10), “Second Circuit case
law is clear that mere difficulty and
inconvenience is insufficient to establish the
unreasonableness of enforcing a forum
selection clause,” Jalee Consulting Grp.,
Inc. v. XenoOne, Inc., 908 F. Supp. 2d 387,
396 (S.D.N.Y. 2012). Plaintiff has not
submitted any evidence that litigating this
case in Illinois would be “impossible,”
Phillips, 494 F.3d at 393, and courts have
routinely upheld forum selection clauses that
require a party to litigate a dispute in a
foreign nation (as opposed to just a different
state as in this case), see Jalee, 908 F. Supp.
2d at 396-97 (upholding forum selection
clause requiring New York plaintiff to
conduct arbitration in South Korea); Magi
XXI, Inc. v. Stato Della Citta Del Vaticano,
818 F. Supp. 2d 597, 618 (E.D.N.Y. 2011)
(upholding forum selection clause requiring
New York plaintiff to litigate dispute in a
Vatican court); Farrell v. Subway Int’l, B.V.,
No. 11 Civ. 08, 2011 WL 1085017, at *5-6
(S.D.N.Y. Mar. 23, 2011) (upholding forum
selection clause requiring Irish plaintiff to
conduct arbitration in New York).
Similarly, there is no indication or
evidence that defendant’s forum selection
11

clause is controlling. See TradeComet.com
LLC II, 647 F.3d at 478-79 (explaining that
when a forum selection clause permits suit
in an alternative federal forum, a court may
enforce it under Rule 12(b)(3) and dismiss
the case). Thus, if a party seeks to enforce a
valid forum selection clause via a Rule
12(b)(3) motion, a court may dismiss the
action. Id.; Phillips, 494 F.3d at 382 (2d Cir.
2007) (affirming dismissal of plaintiff’s
breach of contract claim through a Rule
12(b)(3) motion based on a forum selection
clause); TecFolks, LLC v. Claimtek Sys., 906
F. Supp. 2d 173, 178 (E.D.N.Y. 2012).

In sum, because the Court concludes that
defendant’s forum selection clause was
reasonably communicated to plaintiff, is
mandatory, governs the claims in this
lawsuit, and is not unreasonable, the clause
requiring claims to be brought in Illinois is
valid and enforceable.
B. The Effect of Defendant’s Forum
Selection Clause
The effect of defendant’s valid and
enforceable forum selection clause depends
on whether the Court treats defendant’s
motion as one for dismissal or as one for
transfer. If the case should be dismissed
under Rule 12(b)(3), the presence of a valid
and enforceable forum selection clause is
determinative. If, however, the case should
be transferred under Section 1404(a),
defendant’s forum selection clause is merely
one factor – albeit, a significant one – in the
analysis. For the reasons set forth below, the
Court, in its discretion, concludes that
transfer pursuant to Section 1404(a) is in the
interest of justice.

Conversely, the presence of a valid
forum selection clause is but one aspect of a
court’s analysis of a Section 1404(a) transfer
motion. See Stewart Org., 487 U.S. at 31
(“The forum-selection clause, which
represents the parties’ agreement as to the
most proper forum, should receive neither
dispositive consideration . . . nor no
consideration . . . but rather the
consideration for which Congress provided
in § 1404(a).”); Jones v. Weibrecht, 901
F.2d 17, 19 (2d Cir. 1990) (per curiam)
(“[T]he presence of a forum selection clause
[is] but one factor in the district court’s
consideration of fairness and convenience
under section 1404(a).” (citation omitted));
Longview Equity Fund, L.P. v. iWorld
Projects & Sys., Inc., No. 05 Civ. 6745,
2008 WL 833230, at *3 (S.D.N.Y. Mar. 26,
2008) (“Forum selection clauses are
properly considered as an additional factor
in a § 1404 analysis.”). Thus, although the
existence of a valid forum selection clause
may be a “significant factor” in a court’s
determination of whether or not to transfer a
case pursuant to Section 1404(a), it is not
dispositive; in addition to the presence of a
valid forum selection clause, a court
contemplating transfer must also consider
the other discretionary factors related to
convenience and the interests of justice. See

1. Applicable Law
When a plaintiff violates a valid forum
selection clause, either dismissal for
improper venue pursuant to Rule 12(b)(3) of
the Federal Rules of Civil Procedure or
transfer under Section 1404 is appropriate.
“Whether dismissal or transfer is appropriate
lies within the sound discretion of the
district court.” Minette v. Time Warner, 997
F.2d 1023, 1026 (2d Cir. 1993). The remedy
chosen determines how much weight is
given to the existence of a valid and
enforceable forum selection clause.
When a party argues that a case should
be dismissed under Rule 12(b)(3) of the
Federal Rules of Civil Procedure because
venue is improper, a valid forum selection
12

transferring this case would be in the interest
of justice.

Stewart Org., 487 U.S. at 29 (“The presence
of a forum-selection clause such as the
parties entered into in this case will be a
significant factor that figures centrally in the
district court’s calculus [in deciding a
motion to transfer].”); Red Bull Assocs. v.
Best W. Int’l, Inc., 862 F.2d 963, 967 (2d
Cir. 1988) (“The existence of a forum
selection clause cannot preclude the district
court’s inquiry into the public policy
ramifications of transfer decisions.”).

For all of these reasons, the Court, in its
discretion, concludes that transfer, rather
than dismissal, is the appropriate remedy in
this instance. As a result, the existence of
defendant’s valid and enforceable forum
selection clause is but one factor in the
Court’s Section 1404(a) transfer analysis,
discussed in detail below.
A. Transfer Analysis

2. Analysis

To determine whether transferring this
case would be in the interest of justice, the
Court must conduct a fact-specific inquiry.
As discussed supra, the forum selection
clause is a significant factor in favor of
transfer, however, “[t]he existence of a
forum selection clause cannot preclude the
[Court’s] inquiry into the public policy
ramifications of [the] transfer decision[].”
Red Bull Assocs., 862 F.2d at 967. For the
reasons discussed in detail below, having
analyzed the various “other factors relevant
to whether transfer would promote ‘the
convenience of parties and witnesses’ and
‘the interest of justice,’” Fteja, 841 F. Supp.
2d at 841 (quoting 28 U.S.C. § 1404(a)), the
Court concludes that transfer is warranted in
this instance.

Because defendant has moved to dismiss
this action or, in the alternative, to transfer
the case, the effect of defendant’s valid and
enforceable forum selection clause depends
on the remedy the Court elects.
Although defendant has expressed a
preference for dismissal, it has not argued
that transfer would be inappropriate. Instead,
defendant has moved, in the alternative, for
transfer of this action to the Northern
District of Illinois. In addition, given that the
parties are currently engaging in discovery,
the Court deems it likely that plaintiff will
simply re-file its claims in Illinois if they are
dismissed by this Court. Courts have found
the “extra expense and delay required if a
case is dismissed only to be refiled in
another district to justify transfer over
dismissal.” AJZN, Inc. v. Yu, 12-CV-3348,
2013 WL 97916, at *14-15 (N.D. Cal. Jan.
7, 2013) (citing cases); Rodriguez v.
PepsiCo Long Term Disability Plan, 716 F.
Supp. 2d 855, 862 (N.D. Cal. 2010)
(“Dismissal would force Plaintiff to incur
additional fees and delay by refiling in the
Southern District of New York. The Court
therefore concludes that justice is best
served by transfer, rather than dismissal.”).
Finally, as discussed in detail infra, after
conducting the transfer analysis required
under Section 1404(a), the Court finds that

1. Applicable Law
Under 28 U.S.C. § 1404(a), “[f]or the
convenience of parties and witnesses, in the
interest of justice, a district court may
transfer any civil action to any other district
or division where it might have been
brought.” In determining whether to transfer
venue, courts examine (1) whether the
action could have been brought in the
proposed forum, and (2) whether “the
transfer would promote the convenience of
parties and witnesses and would be in the
13

interests of justice.” Solar v. Annetts, 707 F.
Supp. 2d 437, 442 (S.D.N.Y. 2010) (citation
and internal quotation marks omitted). “A
motion to transfer under § 1404(a) thus calls
on the district court to weigh in the balance
a number of case-specific factors.” Stewart
Org., 487 U.S. at 29.

U.S.C. § 1391(b) states that, in diversity
cases, venue is proper in:

‘“Among the factors to be considered in
determining whether to grant a motion to
transfer venue are, inter alia: (1) the
plaintiff’s choice of forum, (2) the
convenience of witnesses, (3) the location of
relevant documents and relative ease of
access to sources of proof, (4) the
convenience of parties, (5) the locus of
operative facts, (6) the availability of
process to compel the attendance of
unwilling witnesses, and (7) the relative
means of the parties.”’ Fteja, 841 F. Supp.
2d at 832 (quoting N.Y. Marine and Gen.
Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d
102, 112 (2d Cir. 2010)). However, “[t]here
is no rigid formula for balancing these
factors and no single one of them is
determinative.” Citigroup Inc. v. City
Holding Co., 97 F. Supp. 2d 549, 561
(S.D.N.Y. 2000). Instead, the factors should
be applied and weighed in the context of the
individualized
circumstances
of
the
particular case. Moreover, the moving party
has “[t]he burden of establishing the need
for a change of forum.” Wildwood Imps.,
2005 WL 425490, at *3.

(2) a judicial district in which a
substantial part of the events or
omissions giving rise to the claim
occurred, or a substantial part of
property that is the subject of the
action is situated; or

(1) a judicial district where any
defendant resides, if all defendants
are residents of the State in which
the district is located;

(3) if there is no district in which an
action may otherwise be brought as
provided in this section, any judicial
district in which any defendant is
subject to the court's personal
jurisdiction with respect to such
action.
Additionally, under Section 1391(c)(2),
a defendant that is a corporation “shall be
deemed to reside . . . in any judicial district
in which such defendant is subject to the
court's personal jurisdiction with respect to
the civil action in question.” Plaintiff does
not dispute defendant’s assertion that
ShareASale’s principal place of business is
within the Northern District of Illinois.
Therefore, the Northern District of Illinois is
a permissible venue under § 1391(b)(1) and
(c)(2). See, e.g., Indus. Quick Search, Inc. v.
Miller, Rosado & Algois, LLP, No. 09-CV1340, 2013 WL 4048324, at *4 (E.D.N.Y.
Aug. 9, 2013) (“The Court [] finds that
venue is proper in the Southern District
under § 1391(b)(1) and (c)(2) because all
Defendants reside in New York and MR &
A, as a corporate entity, is subject to that
court’s personal jurisdiction.”); SBAV LP v.
Porter Bancorp, Inc., No. 13 Civ. 372, 2013
WL 3467030, at *3 (S.D.N.Y. July 10,
2013)
(“[Defendants]
are
Kentucky

2. Analysis
a. Whether This Action Could Have Been
Brought in the Northern District of Illinois
As a threshold matter, the Court must
determine whether this action could have
been brought in the Northern District of
Illinois. Diversity of citizenship forms the
basis for federal jurisdiction in this case. 28
14

corporations with principal places of
business
in
Louisville,
Kentucky.
Accordingly, venue would be proper in the
Western District of Kentucky.”).

fraudulent invoicing and collection of
payment by ShareASale in connection with
5381’s use of its service.” (Def.’s Mem. at
18-19.) The Court agrees.

b. Discretionary Factors

The
individuals
who
allegedly
improperly billed plaintiff work in Illinois.
Although plaintiff retained defendant’s
services from New York, that fact is not
especially relevant to defendant’s alleged
wrongful conduct. Instead, plaintiff’s claims
will turn largely on what defendant’s
employees did and what motivated their
actions. See Berger v. Cushman & Wakefield
of Pa., Inc., No. 12 Civ. 9224, 2013 WL
4565256, at *10 (S.D.N.Y. Aug. 28, 2013)
(rejecting plaintiffs’ argument that locus of
operative facts was New York because
plaintiffs’ “injuries have a direct connection
to New York,” and holding that locus of
operative facts was where the fraud was
planned and executed).

Because this action could have been
brought in the Northern District of Illinois,
the Court must next determine whether the
action should be transferred there. As
discussed supra, the Court has “broad
discretion” in this determination, and
“notions of convenience and fairness
[should be] considered on a case-by-case
basis.” D.H. Blair & Co., 462 F.3d at 106
As discussed in detail below, the Court
concludes that these factors, on balance,
weigh in favor of transfer.
i. The Forum Selection Clause
As discussed in detail supra, the Court
concludes that defendant’s forum selection
clause – requiring any and all claims arising
out of or related to the Merchant Agreement
to be brought in the state and federal courts
of the Illinois – is valid and enforceable.
Thus, that the parties agreed that the proper
forum for this type of action would be either
the state or federal courts of Illinois is a
“significant factor” in the Court’s analysis
weighing in favor of transfer. Stewart Org.,
487 U.S. at 29.

Moreover, with respect to plaintiff’s
breach of contract claim in particular, “the
locus of operative facts is determined by the
location where the contract was negotiated
or executed, where the contract was to be
performed, and where the alleged breach
occurred.” Everlast World’s Boxing
Headquarters Corp. v. Ringside, Inc., 12
Civ. 5297, 2013 WL 788054, at *8
(S.D.N.Y. Mar. 4, 2013). Thus, as between
New York and Illinois, Illinois is clearly the
locus of operative facts because the alleged
breach occurred in Illinois by ShareASale’s
employees. See, e.g., id. at *9 (explaining
that plaintiff’s breach of contract “theory
turns on business activities among . . .
defendants that undisputedly occurred in
Kansas, not New York,” and that the “locus
of operative facts” factor, therefore,
“emphatically favors the District of
Kansas”); Fteja, 841 F. Supp. 2d at 841-42
(holding that the locus of operative facts
“appears to be California” when the breach

ii. The Locus of Operative Facts
To ascertain the locus of operative facts,
courts look to “the site of the events from
which the claim arises.” Nova Grp., Inc. v.
Universitas Educ., LLC, No. 11-CV-342,
2011 WL 5570793, at *2 (D. Conn. Nov. 16,
2011) (citation and internal quotation marks
omitted). Defendant argues that the locus of
operative facts is Illinois “because the
claims in this case arise from the alleged
15

Mem. at 19.) Although this factor therefore
favors transfer, the Court does not view it as
particularly significant given that we live in
a technological age, where electronic
document production has become the norm
in litigation. See, e.g., ESPN, 581 F. Supp.
2d at 548 (“In an era of electronic
documents, easy copying and overnight
shipping, this factor assumes much less
importance than it did formerly.”).
Moreover, this factor is not entitled to great
weight because defendant has not indicated
that transporting documents or other
physical evidence from Illinois would be
particularly burdensome. See Larew v.
Larew, 11 Civ. 5771, 2012 WL 87616, at *5
(S.D.N.Y. Jan. 10, 2012) (“[T]he location of
documents is entitled to little weight unless
the movant makes a detailed showing of the
burden it would incur absent transfer.”
(alteration, citation, and internal quotation
marks omitted)).

was “carried out” in California by Facebook
employees, and stating that “courts
addressing motions to transfer cases
sounding in contract have not considered
[the fact that plaintiff experienced his harm
in his home state] in determining the locus
of operative facts”); see also JDA eHealth
Sys. Inc., v. Chapin Revenue Cycle Mgmt.,
LLC, No. 10 C 7781, 2011 WL 2518938, at
*9 (N.D. Ill. June 23, 2011) (“[T]he situs of
material events in a breach of contract case
is where the business decisions causing the
breach occurred.” (citations and internal
quotation marks omitted)).
iii. Convenience of Witnesses
“The convenience of the forum for
witnesses is probably considered the single
most important factor in the analysis of
whether a transfer should be granted,” ACE
Am. Ins. Co. v. Bank of the Ozarks, 11 Civ.
3146, 2012 WL 3240239, at *11 (S.D.N.Y.
Aug. 6, 2012) (citation and internal
quotation marks omitted), and “the
convenience of non-party witnesses is
accorded more weight than that of party
witnesses,” ESPN, Inc. v. Quiksilver, Inc.,
581 F. Supp. 2d 542, 547 (S.D.N.Y. 2008)
(citation and internal quotation marks
omitted). Defendant argues that “this is at
most a neutral consideration, given that the
suit involves two corporate entities located
in different states . . . .” (Def.’s Mem. at 20.)
The Court agrees. Because neither party has
specified how either forum would
inconvenience key witnesses (especially
non-party witnesses), the Court affords this
factor no weight.

v. Convenience of the Parties
The Court recognizes that “[w]here
transfer
would
merely
shift
the
inconvenience from one party to the other,’
the Court should leave plaintiff’s choice of
venue undisturbed.” Wagner v. N.Y.
Marriott Marquis, 502 F. Supp. 2d 312, 316
(N.D.N.Y. 2007) (quoting Wilshire Credit
Corp. v. Barrett Capital Mgmt. Corp., 976
F. Supp. 174, 182 (W.D.N.Y. 1997))
(alteration in original). However, where the
parties have agreed upon a forum in a
forum-selection clause, as the parties have
done here, the convenience of the parties
factor generally weighs heavily in favor of
adjudicating the case in the chosen forum.
See, e.g., Falconwood Fin. Corp. v. Griffin,
838 F. Supp. 836, 840 (S.D.N.Y. 1993) (“In
a case where the parties have already agreed
to a particular forum, the ‘convenience of
the parties’ weighs heavily in favor of
hearing the case in the designated court.”);

iv. Location of Documents
With respect to the location of
documents, defendant has stated that
documents relevant to plaintiff’s claims are
located at its Illinois headquarters. (Def.’s
16

Moreover, plaintiff’s choice of forum is
not entitled to great deference in this case
because, as discussed supra, there exists a
valid and enforceable forum selection clause
that reflects an earlier, contractually agreed
upon choice of forum by the plaintiff. See,
e.g., Ran-Mar, Inc. v. Wainwright Bank &
Trust Co., No. 08-cv-159, 2008 WL
4559844, at *3 (D. Vt. Oct. 9, 2008)
(“Ordinarily a valid contractual forum
selection clause will overcome deference to
a plaintiff’s choice of forum, because it is
‘treated as a manifestation of the parties’
preferences as to a convenient forum.’”
(quoting Jumara v. State Farm Ins. Co., 55
F.3d 873, 880 (3d Cir. 1995))); Strategic
Mktg. & Commc’ns, Inc. v. Kmart Corp., 41
F. Supp. 2d 268, 273 (S.D.N.Y. 1998)
(“When a § 1404(a) motion involves a
forum selection clause and the language of
the clause is mandatory, rather than
permissive, deference to the plaintiff’s
choice of forum is inappropriate.”). Thus,
although plaintiff believes that venue should
remain in this District, a number of factors
weigh strongly in favor of transfer – namely,
the fact that the parties previously chose
Illinois as the appropriate forum for cases
like this one through a valid and enforceable
forum selection clause, and that the locus of
operative facts is centered in Illinois.

Richardson Greenshields Secs., Inc. v. Metz,
566 F. Supp. 131, 134 (S.D.N.Y. 1983)
(“[T]he
forum-selection
clause
is
determinative as to the convenience of the
parties.”). Moreover, although plaintiff
argues that “it would be manifestly unfair,
prejudicial and inconvenient for [p]laintiff to
litigate this dispute in Illinois” (Pl.’s Mem.
at 11), it has failed to articulate any
substantial inconvenience by having to
litigate this case in Illinois. This factor
therefore weighs strongly in favor of
transfer.
vi. Plaintiff’s Choice of Forum
It is well settled that the plaintiff’s
choice of forum is “given great weight.”
D.H. Blair & Co., 462 F.3d at 107 (citation
omitted). Thus, “[a] plaintiff’s choice of
venue is entitled to significant consideration
and will not be disturbed unless other factors
weigh strongly in favor of transfer.” Royal
Ins. Co. of Am. v. United States, 998 F.
Supp. 351, 353 (S.D.N.Y. 1998) (citations
omitted); see also Fteja, 841 F. Supp. 2d at
833 (“[B]ecause a court’s discretion to
transfer an action must be exercised at the
very outset of the case, when relatively little
is known about how the case will develop,
courts have typically accorded substantial
weight to the plaintiff’s choice of forum.”
(alteration, citation, and internal quotation
marks omitted)). However, courts have
noted that the weight given to this factor is
significantly diminished where, as here, the
operative facts did not occur in the forum
chosen by plaintiff. See, e.g., Capitol
Records, LLC v. VideoEgg, Inc., 611 F.
Supp. 2d 349, 368 (S.D.N.Y. 2009);
Wagner, 502 F. Supp. 2d at 317 (“The
presumption favoring plaintiff’s choice of
forum, however, is not so rigidly applied
where, as here, the cause of action arose
outside of that forum . . . .” (citation and
internal quotation marks omitted)).

vii. Relative Means of the Parties
“Where a disparity exists between the
means of the parties, such as in the case of
an individual suing a large corporation, the
court may consider the relative means of the
parties in determining where a case should
proceed.”
800-Flowers,
Inc.
v.
Intercontinental Florist, Inc., 860 F. Supp.
128, 135 (S.D.N.Y. 1994). However, “this
factor is entitled to little weight where both
parties
are
corporations.”
Student
Advantage, Inc. v. Int’l Student Exchange
Cards, Inc., No. 00 Civ. 1971, 2000 WL
17

1290585, at *8 (S.D.N.Y. Sept. 13, 2000). In
addition, “where proof of such disparity is
not adequately provided, or does not exist,
this is not a significant factor to be
considered.” Fteja, 841 F. Supp. 2d at 844
(citation and internal quotation marks
omitted).

Plaintiff has not pointed to any evidence or
persuasive reason as to why transfer would
be improper. Accordingly, the Court grants
defendant’s motion to transfer the case.
IV. CONCLUSION
For the foregoing reasons, the Court
denies defendant’s motion to dismiss this
case and grants defendant’s motion to
transfer the proceedings. The Clerk of the
Court is directed to transfer this action to the
United States District Court for the Northern
District of Illinois, pursuant to 28 U.S.C.
§ 1404(a).

Plaintiff argues that “the relative
financial means of the parties is highly
disparate.” (Pl.’s Mem. at 11.) However, not
only has plaintiff failed to provide any
“information demonstrating that [it] would
be financially prejudiced by having to
litigate in” Illinois, Quan v. Computer Scis.
Corp., CV 06-3927, 2008 WL 89679, at *8
(E.D.N.Y. Jan. 7, 2008), but plaintiff’s
complaint admits that its products have
generated more than $65 million in revenue
between 2002 and 2012 (Compl. ¶ 8). Thus,
this factor is afforded no weight.7

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

***
In sum, after carefully considering the
parties’ submissions and the applicable law,
the Court concludes, in its discretion, that
the defendant has met its burden of
demonstrating that a balancing of the
transfer analysis factors, as well as the
totality of the circumstances and the
interests of justice, warrants transfer of this
action to the Northern District of Illinois.

Dated: September 23, 2013
Central Islip, NY
***
Plaintiff is represented by Benjamin Kincaid
Semel and Robert Justin DeBrauwere, Pryor
Cashman LLP, 7 Times Square, New York,
NY 10036. Defendant is represented by
Adam Bialek, Wilson, Elser, Moskowitz,
Edelman & Dicker, LLP 150 East 42nd
Street, New York, NY 10017.

7

Even if the Court were to afford this factor some
weight in favor of plaintiff, this factor would not tip
the scales in favor of plaintiff due to the numerous
factors that strongly weigh in favor of transfer. See
Fteja, 841 F. Supp. 2d at 844 (“Since the relative
economic ability of the parties to proceed with a case
has rarely been a dispositive reason to grant or deny a
venue change but is instead but one of several factors
for the court to consider, it makes little sense to reject
transfer on a ground [plaintiff] has not advanced and
where the Court has no evidence in a case where
essentially all the other factors weigh in favor of
transfer.” (alteration, internal citation, and internal
quotation marks omitted)).

18