ZIENCIK et al v. SNAP, INC.

Filing 22

ORDER. Plaintiffs' Motion to Remand (Doc. 8 ) is DENIED. Defendant's Motion to File a Reply (Doc. 19 ) is DENIED. Defendant's Motion to Transfer (Doc. 10 ) is GRANTED. This action is transferred forthwith to the United States District Court for the Central District of California. The Clerk of Court is DIRECTED to TRANSFER this case to the Central District of California. Signed by Judge Cathy Bissoon on 9/8/2021. (scl)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BAILEY ZIENCIK, KELLY ZIENCIK
and PASCALE WASSON,
Plaintiffs,
v.
SNAP, INC. d/b/a SNAPCHAT,
Defendant.

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Civil Action No. 21-49
Judge Cathy Bissoon

MEMORANDUM ORDER
Pending before the Court are three motions: Plaintiffs’ Bailey Ziencik, Kelly Ziencik and
Pascale Wasson (“Plaintiffs”) Motion to Remand to State Court (“Pl. Mt. Remand,” Doc. 8);
Defendant Snap, Inc. d/b/a Snapchat’s (“Defendant”) Motion to Transfer Pursuant to 28 U.S.C.
§1631 and 28 U.S.C. §1404(a) (“Def. Mt. Transfer,” Doc. 10); and Defendant’s Motion for
Leave to File a Reply in Support of Motion to Transfer (Doc. 19). For the following reasons, the
Court will deny the Motion to Remand, grant the Motion to Transfer and deny the Motion for
Leave to File a Reply.
I.

MEMORANDUM

On January 11, 2021, Defendant filed its Notice of Removal (Doc. 1), attaching
Plaintiffs’ Complaint (Doc. 1-3) in the Court of Common Pleas of Allegheny County, which
alleged sixteen counts against Defendant based on various theories, including strict products
liability, negligence and infliction of emotional distress, among others. According to Defendant,
this Court has original subject matter jurisdiction pursuant to 28 U.S.C. §1332(a)(1) because
there is complete diversity of citizenship between Plaintiffs and Defendant and the amount in
controversy exceeds $75,000, excluding interest and costs. Id. at ¶6. Although the Notice of

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Removal referred to a “true and correct copy of the receipt of service” served on December 14,
2020, no such receipt was attached. 1 Id. at ¶6, see Ex. B at Doc. 1-3. Plaintiffs filed their
Motion to Remand and Brief in Support on January 22, 2021. Defendant filed its Motion to
Transfer and Brief in Support (“Def. Brief ISO Transfer,” Doc. 11) on January 25, 2021.
Defendant filed an Amended Notice of Removal (Doc. 13) on February 2, noting that Plaintiffs
maintained that Defendant was served on December 11, 2020, and attaching a copy of the Proof
of Service previously filed by Plaintiffs. Doc. 13 at ¶3 and Exhibit B, Doc. 13-2, at pgs. 2-4.
The Court shall address each motion in turn.
A. Motion to Remand
Plaintiffs argue that this case should be remanded because of the following:
1) Defendant’s Notice of Removal was untimely; 2) Defendant’s Notice of Removal was
deficient; 3) Defendant purposefully and deliberately availed itself to personal jurisdiction;
4) Defendant has failed to meet its burden of proving that the case can be removed; and
5) Defendant has not demonstrated any other statutory reason for removal.
a.

The Timeliness of Defendant’s Notice of Removal

Although Defendant’s initial Notice of Removal stated that the date of service was
December 14, 2020, its Amended Notice of Removal note December 11, 2020 as the date of
service, which comports with Plaintiffs’ allegations. Compare Notice of Removal ¶3 with
Amended Notice of Removal ¶3 and Plaintiffs’ Motion to Remand ¶2. While Plaintiffs are
correct that 30 days from December 11, 2020, would have been Sunday, January 10, 2021, a
simple examination of the Federal Rules of Civil Procedure would have informed Plaintiffs that
the period of timeliness to file would “run until the end of the next day that is not a Saturday,

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The Court will address the discrepancy in service dates and the lack of copy as relevant below.
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Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(a)(1)(C). Thus, Defendant’s filing on January 11,
2021, is timely regardless of whether the date of service was December 14, 2020, or December
11, 2020.
b.

Deficiencies Regarding Defendant’s Notice of Removal

Second, Plaintiffs argue that this case should be remanded because Defendant failed to
file all necessary documents for removal under 28 U.S.C. § 1446(A). Pl. Mt. for Remand ¶1821. However, the Court notes that Plaintiffs’ Motion to Remand precedes Defendant’s Amended
Notice of Removal, which cures the structural deficiencies argued by Plaintiffs regarding
timeliness and required exhibits. Additionally, the Court is puzzled as to why Plaintiffs felt a
need to file an “Opposition” to this Amended Notice, which, as Defendants correctly note, not
only fails to provide grounds to remand, but also is at odds with how district courts in this circuit
address amended notices of removal. See, e.g., Pivtchev v. State Farm, No. 3:19cv150, 2019 WL
2743843, at *2 (M.D. Pa. July 1, 2019) (refusing to remand based on a notice of removal without
a return of service of process form which was attached to an amended notice).
Plaintiffs have failed to provide any reason as to why court approval was required before
filing the Amended Notice, and the other arguments in their Opposition to Defendant’s Amended
Notice of Removal either rehash arguments already made in their Motion to Remand or
otherwise are irrelevant as to whether Defendant was permitted to file its Amended Notice of
Removal. Nonetheless, the Court agrees with other courts in the Third Circuit that failing to
attach an exhibit is a de minimus procedural defect, and since it was later remedied, this omission
does not affect Defendant’s ability to remove or provide additional grounds for remand. See
Efford v. Milam, 368 F. Supp. 2d 380, 383 (E.D. Pa. 2005), abrogated on other grounds by
Sikirica v. Nationwide Ins. Co., 416 F.3d 214 (3d. Cir. 2005) (holding that “[t]he failure to file

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exhibits is not a jurisdictional defect” and “[o]missions which are merely formal or modal do not
affect the right to remove and may be subsequently remedied”).
Further, Defendant also contends that the reason why no copy of the receipt of service
was attached to the initial Notice of Removal was because “Plaintiffs had not served a copy of
any proof of service document reflecting the date or manner by which Plaintiff purportedly
served original process on [Defendant] in the state court action” until January 22, 2021 (via
electronic service), well after Defendant’s deadline to file its notice of removal. Def. Opp. Dec.
¶¶3-4. As Defendant has cured any defects regarding its original Notice of Removal, there is no
basis for remand or opposing its Amended Notice.
c.

Personal Jurisdiction

The Court is unclear as to why Plaintiffs make a personal jurisdiction argument in their
motion to remand, as such arguments are irrelevant as to whether Defendant properly removed
the case. The Court will address this further in its discussion on Defendant’s Motion to Transfer.
d.

Defendant’s Burden on Proving Removability

Plaintiffs also argue that Defendant has failed to demonstrate that this case may be
removed, contending that there is no basis for federal question jurisdiction or diversity
jurisdiction. Defendant does not appear to contest the former but filed for removal based on the
latter. While Plaintiffs do not contest that the parties are diverse, they claim that the amount in
controversy does not exceed $75,000, and that Defendant has failed to “demonstrate by a
preponderance of the evidence that the amount in controversy is satisfied.” Pl. Mt. Remand
¶¶33-37. Specifically, Plaintiffs argue that on its face, the state court complaint “clearly alleges
an amount in controversy less than $75,000 in good faith, including consideration of nonmonetary relief” although they also state that they “do not dispute, nor waive that damages

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claimed may ultimately exceed the $75,000…as a jurisdictional requirement, the Defendant must
offer proof by a preponderance of the evidence, which the Defendant Snapchat has not
provided.” Id. at ¶35.
In response, Defendant argues that a “preponderance of the evidence” standard is
incorrect at this stage of the proceeding, and that the Court should proceed under a “legal
certainty” standard—that is, since Plaintiffs did not expressly limit its amount in controversy as
less than $75,000, the Court should find that the amount-in-controversy is met unless it “appears
to a legal certainty that the plaintiff cannot recover the jurisdictional amount.” Defendant
maintains that, as Plaintiffs do not advance a factual challenge to its argument that the amount in
controversy exceeds the threshold diversity requirement, this is the correct standard, because the
Court should only apply a “preponderance of the evidence” standard after Plaintiffs provided
counterevidence or reasons why Defendant’s calculations are wrong. In the alternative,
Defendant argues that even if the Court applies a “preponderance of the evidence” standard,
Defendant has provided sufficient proof to show a “reasonable probability that jurisdiction
exists.” Def. Opp. Brief at 10, citing Thach v. State Farm Fire & Cas. Co., No. 19-5050, 2020
WL 3892964, at *2 (E.D. Pa. July 10, 2020).
The Court agrees with Defendant that the correct standard as to its initial discussion
regarding the amount-in-controversy for its Notice of Removal is the “legal certainty” standard,
and agrees with Defendant that as Plaintiffs did not expressly limit its claims to under $75,000
that Defendant met this standard in its Notice of Removal. The Court does find, however, that
since Plaintiffs have contested Defendant’s claim, the Court must indeed find by the
preponderance of the evidence that the amount in controversy exceeds $75,000. See Dart
Cherokee Basin Operation Co., LLC v. Owens, 574 U.S. 81, 88 (2014) (“[T]he defendant’s

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amount-in-controversy allegation should be accepted when not contested by the plaintiff or
questioned by the court…” but “[i]f the plaintiff contests the defendant’s allegation...the district
court [must find] by the preponderance of the evidence, that the amount in controversy exceeds
the jurisdictional threshold.”) (internal quotations and citations omitted).
It seems to the Court that Plaintiffs are clearly contesting Defendant’s representation as
they argue that the this case “does not comply with…amount in controversy requirements, as
required, for diversity jurisdiction,” and that the Complaint “clearly alleges an amount in
controversy less than $75,000 in good faith.” Pl. Mt. Remand ¶¶ 31, 35. Nonetheless, none of
Plaintiffs’ filings provide any factual findings for the Court to weigh against Defendant’s
representations.
In this case, after considering potential compensatory or punitive damages and attorney’s
fees, the Court agrees with Defendant that it has provided enough evidence to demonstrate “a
reasonable probability that jurisdiction exists.” Thach, 2020 WL 3892964 at *2 (internal
quotations and citations omitted). Defendant has noted that Plaintiff’s pursuit of treble damages
under the Unfair Trade Practices and Consumer Protection Law alone would suffice, let alone
Plaintiffs’ numerous other allegations. Def. Opp. Brief at pgs. 12-13. The Court agrees. As
Plaintiffs did not provide any factual or substantive evidence to the contrary, the Court finds that
Defendant has demonstrated that the amount in controversy requirement has been satisfied.

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e.

Other Statutory Reasons for Removal

While Plaintiffs contend that no other specific statutory basis for removal exists, the
Court need not address this as it finds that this case was properly removed based on diversity
jurisdiction.
B. Motion to Transfer
Defendant argues that this Court does not have personal jurisdiction over it and that
Plaintiffs are bound by a forum-selection clause, requesting that the Court transfer this case to
the District Court for the Central District of California under 28 U.S.C. § 1631 for lack of
personal jurisdiction, or alternatively, under 28 U.S.C. § 1404(a), pursuant to its forum-selection
clause.
a. Lack of Personal Jurisdiction
Defendant claims that it is not subject to either general or specific jurisdiction in
Pennsylvania. Plaintiffs do not appear to contend that Defendant is subject to general
jurisdiction, but rather attempt to argue that Defendant’s conduct creates facts that support
specific jurisdiction in this case. Defendant, however, contends that Plaintiffs have failed to
demonstrate the first threshold requirement that Defendant “purposefully avail[ed] itself of the
privilege of conducting activities within the forum state.” Ford Motor Company v. Montana
Eighth Judicial District Court, 141 S. Ct. 1017, 1024 (2021) (internal quotations and citations
omitted).
Defendant does not have officers or a registered agent in Pennsylvania and is
headquartered in California. Def. Brief ISO Transfer at pg. 5. Nor does Defendant target
Pennsylvania residents in any advertisements or market any product specifically in Pennsylvania.
Id. at pgs. 5-6. The only contacts between Defendant and Plaintiffs were, as Defendant states,

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initiated by Plaintiffs. Id. at pg. 6. Plaintiffs’ contention that Defendant “voluntarily and
consciously chooses to do business in PA” because it does not geofence its software is similarly
unpersuasive. Pl. Opp. Transfer ¶22. Plaintiffs provide no evidence that Defendant does more
than exist as an application that people can download while located in Pennsylvania. See Toys
“R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir. 2003) (holding that “mere operation
of a commercially interactive web site should not subject the operator to jurisdiction anywhere in
the world.”).
Nor does the Court find persuasive Plaintiffs’ argument that Defendant committed an
intentional tort that would subject it to specific personal jurisdiction. See Marten v. Godwin,
499 F.3d 290, 297 (3d Cir. 2007) (holding that a plaintiff may demonstrate personal jurisdiction
if she demonstrates that “1) The defendant committed an intentional tort; 2) The plaintiff felt the
brunt of the harm in the forum such that the forum can be said to be the focal point of the harm
suffered by the plaintiff as a result of that tort; 3) The defendant expressly aimed his tortious
conduct at the forum such that the forum can be said to be the focal point of the tortious
activity.”). Plaintiffs appear to argue that Defendant’s product has a design defect, which
purportedly enabled Defendant to “ignore notice of law enforcement” and “alerts perpetrators of
law enforcement investigations.” Pl. Opp. Transfer ¶29. However, Plaintiffs’ argument plainly
fails on the third prong: Defendant did not expressly aim its tortious conduct at the forum state.
In fact, this failure is based on Plaintiffs’ very pleadings—as one Plaintiff is from Massachusetts,
this clearly demonstrates that Defendant’s conduct is unrelated to the forum state. Plaintiffs
could have been, and indeed are, from multiple states. Defendant’s alleged tortious conduct was
conducted in both Massachusetts and Pennsylvania and could have occurred in any state. See,
e.g. Complaint ¶¶ 53-81.

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Finally, the Court does not see how Plaintiffs’ argument that Defendant waived its ability
to raise a personal jurisdiction argument because it filed such objections within a Motion to
Transfer rather than a Motion to Dismiss has any grounding under the law, or any relevance to
the instant motion. Throughout its briefing, Defendant notes that the reason why it filed a
Motion to Transfer instead of a Motion to Dismiss for the purposes of judicial economy and also
to benefit Plaintiffs from having to pay another filing fee and adding concerns of the statute of
limitations. Def. Brief ISO Transfer at pgs. 10-11. If Plaintiffs are contesting that Defendant
cannot now file an additional Motion to Dismiss in this Court on the grounds of lack of personal
jurisdiction, such an argument again has no bearing on whether personal jurisdiction exists for
the purpose of transferring under 28 U.S.C. § 1631.
b. Forum Selection
As the Court has found that it lacks personal jurisdiction over Defendant, it need not
address the arguments regarding the forum selection clause.
C. Motion for Leave to File Reply and Notice of Supplemental Authority
Consistent with the undersigned’s Policies & Procedures, this Motion is denied as the
Court has sufficient authority based on the parties’ initial briefing to inform its decision. As for
Defendant’s Notice of Supplemental Authority (Doc. 20), Plaintiffs are correct that much of the
law that the Fourth Circuit applies is nonbinding on this Court, and the Court notes that none of
its analysis relies on that case.
II.

ORDER

Consistent with the foregoing, Plaintiffs’ Motion to Remand (Doc. 8) is DENIED.
Defendant’s Motion to File a Reply (Doc. 19) is DENIED. Defendant’s Motion to Transfer
(Doc. 10) is GRANTED. This action is transferred forthwith to the United States District Court

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for the Central District of California. The Clerk of Court is DIRECTED to TRANSFER this
case to the Central District of California.
IT IS SO ORDERED.

September 8, 2021

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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All Counsel of Record

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