952 F.Supp.2d 439 (E.D.N.Y 2013), 12-CV-3475 (JFB) (ARL), Zaltz v. Jdate

Docket Nº12-CV-3475 (JFB) (ARL)
Citation952 F.Supp.2d 439
Opinion JudgeJOSEPH F. BIANCO, United States District Judge.
Party NameLISA ZALTZ, Plaintiff, v. JDATE, Defendant
AttorneyNo. 12-CV-3475 (JFB) (ARL) Plaintiff, Pro se. For Defendant: David B. Gordon, Richardson & Patel LLP, New York, NY.
Case DateJuly 08, 2013
CourtUnited States District Courts, 2nd Circuit, Eastern District of New York

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952 F.Supp.2d 439 (E.D.N.Y 2013)

LISA ZALTZ, Plaintiff,


JDATE, Defendant

No. 12-CV-3475 (JFB) (ARL)

United States District Court, E.D. New York

July 8, 2013

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Plaintiff, Pro se.

For Defendant: David B. Gordon, Richardson & Patel LLP, New York, NY.


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JOSEPH F. BIANCO, United States District Judge.

Pro se plaintiff Lisa Zaltz (" plaintiff" or " Zaltz" ) brought this action for breach of contract, personal injury, and fraud against JDATE (" defendant" or " Sparks Networks" ).1 Specifically, plaintiff alleges, among other things, that defendant billed her repeatedly for months without her knowledge or consent. Plaintiff claims that, despite her complaints about the fees, the problem was not remedied. Plaintiff also claims that she was eventually removed from the website altogether. Moreover, plaintiff alleges that she has received prank calls from the website, and

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that her personal page on the website has been hacked.

Defendant has moved, 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),2 to the United States District Court for the Central

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District of California. For the reasons set forth below, the Court grants defendant's motion to transfer and the action is transferred to the Central District of California.

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 website in the State of California, City of Los Angeles. Although plaintiff alleges in a conclusory fashion that she does not believe that she agreed to such a forum selection clause, the evidence suggests that she, in fact, did. A declaration filed by a Spark Networks employee, screenshots submitted by defendant, and JDate.com's current website all demonstrate that plaintiff could not have signed up to participate on the site without agreeing to its terms and conditions, which included the California forum selection clause. Plaintiff has submitted no evidence to controvert these facts. By affirmatively accepting the terms and conditions of use, plaintiff agreed to be bound by all of the terms contained therein, including the forum selection clause, even if she did not take the time to read through the terms and conditions in their entirety before denoting her acceptance. Moreover, plaintiff does not allege any facts that would make the enforcement of that clause unreasonable or unjust, nor does she allege facts from which this Court could conclude that the clause is invalid. Accordingly, defendant's California forum selection clause is valid and enforceable.

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 central California, and central California is the site of many of the documents and witnesses relevant to this case. Moreover, plaintiff has failed to demonstrate that litigating this case in California, as opposed to New York, would be inconvenient, or that she would be financially prejudiced by such a transfer. Because this action could have appropriately been brought in the Central District of California, 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.3

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I. Background

A. The Complaint

The complaint alleges that defendant, in connection with its website JDate.com, billed plaintiff repeatedly for months without her consent or knowledge. (Compl.)4 According to the complaint, plaintiff complained about the improper billing, but no changes were made. ( Id.) Plaintiff claims that defendant instead " threw [her] off the site." ( Id.)

Additionally, plaintiff alleges that she has " been receiving prank [and] sexual calls from the website." ( Id.) Plaintiff claims that she went to the police about those calls, but was told that the names of the callers could not be obtained. ( Id.) The complaint further alleges that plaintiff was sexually assaulted by a member of the website while they were on a date, and that she has " experienced a lot of hacking" into her personal page on defendant's website. ( Id.)

B. Procedural History

Plaintiff filed this lawsuit in New York State Supreme Court, Nassau County, on May 25, 2012. Defendant removed the case to this Court on July 13, 2012. On August 30, 2012, defendant filed a motion to dismiss plaintiff's complaint for improper venue or, in the alternative, to transfer the case to the United States District Court for the Central District of California. By Order dated November 28, 2012, the Court directed plaintiff to respond to defendant's motion to dismiss. Plaintiff subsequently filed a letter in opposition to defendant's motion, dated January 1, 2013. Defendant filed its reply in further support of its motion on January 17, 2013. The Court has fully considered the submissions of the parties.

II. Standard of Review

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. 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) (quoting Caremark Therapeutic Servs. v. Leavitt, 405 F.Supp.2d 454, 457 (S.D.N.Y. 2005)). 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)).

If there are disputed facts relevant to the venue determination, it may be appropriate

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for the district court to hold an evidentiary hearing, where the plaintiff must demonstrate venue by a preponderance of the evidence, before resolving the Rule 12(b)(3) motion. See New Moon Shipping Co., Ltd. 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 . . . 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)).

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 the State of California, City of Los Angeles. Because plaintiff has alleged no facts that would provide grounds to invalidate that forum selection clause, discovery and/or an evidentiary hearing on this issue is unnecessary.5

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B. Section 1404(a) Motions

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 (2d Cir. 1992) (citing Stewart Org., Inc., 487 U.S. at 29). 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, at *9 (S.D.N.Y. Feb. 20, 2005); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (explaining that there...

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