Rudgayzer v. Google, Inc.

Citation986 F.Supp.2d 151
Decision Date15 November 2013
Docket NumberNo. 13 CV 120(ILG)(RER).,13 CV 120(ILG)(RER).
PartiesRUDGAYZER, et al., Plaintiff, v. GOOGLE, INC., Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

OPINION TEXT STARTS HERE

Todd C. Bank, Law Office of Todd C. Bank, Kew Gardens, NY, for Plaintiff.

Dennis C. Hopkins, Perkins Coie LLP, New York, NY, Rebecca S. Engrav, Susan D. Fahringer, Perkins Coie LLP, Seattle, WA, for Defendant.

MEMORANDUM AND ORDER

GLASSER, District Judge.

Plaintiffs Albert Rudgayzer, Michael Amalfitano, and Lillian Ganci (Plaintiffs) bring this action against Google, Inc. (Google), alleging violations of the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701–2712, for purportedly making public their private information without their consent.

Two motions are before the court. First, Google has moved to dismiss this action for improper venue, or in the alternative to transfer it to the Northern District of California for more convenient venue. Second, Google has moved to dismiss the complaint for lack of standing and failure to state a claim. Google's venue motion is GRANTED to the extent it requests dismissal and DENIED as moot to the extent it requests transfer. Google's motion to dismiss for lack of standing and failure to state a claim is DENIED as moot.

BACKGROUND

The following facts are taken from the Plaintiffs' complaint as well as from extrinsic documents that the Court may consider in ruling on these motions. See Serdarevic v. Centex Homes, LLC, 760 F.Supp.2d 322, 328 (S.D.N.Y.2010). Google launched Buzz, a social networking tool, on February 9, 2010. Complaint dated January 8, 2013 [Dkt. No. 1] (“Compl.”) at ¶ 12. For those Gmail users who had previously created public Google profiles for themselves, Buzz automatically made public a list of people with whom the user had frequently emailed or chatted. Id. at ¶¶ 12, 16, 20. The plaintiffs had Gmail accounts when Buzz was launched, though they do not say whether they had public profiles at that time. Id. at ¶ 23.

On July 30, 2010, a group of named plaintiffs filed a consolidated and amended class-action complaint in the Northern District of California, for a class consisting of all Gmail users, alleging that Buzz violated federal and state privacy laws by making Gmail users' contact lists public without consent. Memorandum in Support of Google's Motion to Dismiss for Failure to State a Claim and Lack of Subject Matter Jurisdiction [Dkt. No. 11–1] (“Def.'s State a Claim Mem.”) at Ex. A. All three plaintiffs in this case were part of the putative class in the 2010 case. Compl. at ¶ 1. The parties agreed to settle on September 2, 2010; Google's primary concessions were to make Buzz opt-in rather than opt-out and to pay $8.5 million to nonprofit organizations promoting internet privacy. Def.'s State a Claim Mem. at Ex. B. The district court preliminarily approved the settlement on October 7, 2010, and gave putative class members 60 days to request exclusion. Id. at Ex. C. Rudgayzer successfully excluded himself from the class. Compl. at ¶ 32. Amalfitano's request for exclusion was deemed late, which he attributes to inconsistent deadlines in the settlement agreement and class notice. Id. at ¶¶ 25–29, 34. Ganci did not attempt to exclude herself from the class, but says she would have if she had been aware of inconsistencies between the class notice and settlement agreement regarding the deadline for exclusion, criteria for opting out, and the definition of the class. Id. at ¶¶ 30, 36. One class member challenged the settlement agreement on the basis of these inconsistencies. Def.'s State a Claim Mem. at Ex. F. The district court rejected the challenge and finally approved the class on June 2, 2011. Id. at Ex. E.

The Plaintiffs filed their complaint in this court on January 8, 2013. Dkt. No. 1. Google filed two motions on February 19, one to dismiss or transfer the action on the basis of improper or inconvenient venue and one to dismiss the complaint for lack of standing and failure to state a claim. Def.'s State a Claim Mem.; Memorandum in Support of Google's Motion to Dismiss or Transfer for Improper Venue [Dkt. No. 12] (“Def.'s Venue Mem.”). The Plaintiffs filed responses in opposition to both of Google's motions on June 10. Plaintiffs' Opposition to Defendant's Motion to Dismiss for Failure to State a Claim and Lack of Standing [Dkt. No. 27] (“Pls.' State a Claim Opp'n”); Plaintiffs' Opposition to Defendant's Motion to Dismiss or Transfer for Improper Venue [Dkt. No. 22] (“Pls.' Venue Opp'n”). Google filed replies in support of both of its motions on July 31. Reply in Support of Google's Motion to Dismiss for Failure to State a Claim and Lack of Standing [Dkt. No. 30] (“Def.'s State a Claim Reply”); Reply in Support of Google's Motion to Dismiss or Transfer for Improper Venue [Dkt. No. 29] (“Def.'s Venue Reply”).

DISCUSSION
I. Motion to Dismiss or Transfer for Improper or Inconvenient Venue

Google argues that this action should be dismissed under Federal Rule of Civil Procedure 12(b)(3) for contravening a forum-selection clause that sets venue in Santa Clara County, California. Def.'s Venue Mem. at 7–18. The forum-selection clause reads: “You and Google agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from the Terms.” Declaration of Marc S. Crandall in Support of Google's Motion to Dismiss or Transfer for Improper Venue [Dkt. No. 12–10] (Crandall Decl.) at Ex. B ¶ 20.7.1 The agreement also contains a separate choice-of-law clause, which provides that the agreement “shall be governed by the laws of the State of California.” Id.

Google argues in the alternative that transfer to the Northern District of California is appropriate under 28 U.S.C. § 1404(a). Def.'s Venue Mem. at 18–24. Section 1404(a) provides: “For 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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a).

Plaintiffs respond by asserting that Google's forum-selection clause is in fact a venue-selection clause. Pls.' Venue Opp'n at 5–6 (citing Alexander v. Superior Court, 114 Cal.App.4th 723, 8 Cal.Rptr.3d 111, 113 (2003)). Plaintiffs argue that the clause is therefore invalid, reasoning that under Alexander, venue can only be determined by California's venue laws, Cal.Civ.Proc.Code § 395.5, and not by a contractual provision. Pls.' Venue Opp'n at 6–11. Plaintiffs do not contest that they agreed to the forum-selection clause, that the clause is reasonable, and that the clause applies their claims in this case. In response to Google's alternative argument, plaintiffs argue that the case should not be transferred under § 1404(a). Id. at 11–16

a. Plaintiffs' Arguments Regarding California Law

The Court first addresses plaintiffs' argument that the clause is invalid under California law. Plaintiffs contend that the clause is not a forum-selection clause, which is valid in California, but a venue-selection clause, and that it is therefore invalid because venue can only be determined by California's venue laws, Cal.Civ.Proc.Code § 395.5. Plaintiffs' argument is entirely incorrect.

First, plaintiffs are incorrect that the clause at issue is not a forum-selection clause. See Pls.' Venue Opp'n at 5. California case law does distinguish between forum-selection clauses, which concern the place of jurisdiction, and venue-selection clauses, which concern the specific location within that jurisdiction where a case may be heard. See Alexander v. Superior Court, 114 Cal.App.4th 723, 8 Cal.Rptr.3d 111, 113 (2003). But the clause here functions as both a venue-selection clause and a forum-selection clause, as it limits litigation to a particular county—a venue—within the state of California—a forum. Plaintiffs assert that “the clauses at issue refer only a [sic] particular county” and not to a particular state, and that the clause therefore only applies if Plaintiffs had brought the action in California.” Pls.' Venue Opp'n at 6 (emphasis in original). Plaintiffs are simply wrong. The clause clearly limits all suits to a particular jurisdiction, as it provides for exclusive jurisdiction in Santa Clara County, in the state of California.

Second, plaintiffs are incorrect about the validity of venue-selection clauses under California law. The only relevant limitation on venue-selection clauses is that they may not specify a county outside of those provided for in the state's venue laws. Battaglia Enters., Inc. v. Superior Court, 215 Cal.App.4th 309, 154 Cal.Rptr.3d 907, 912–13 (2013); Global Packaging, Inc. v. Superior Court, 196 Cal.App.4th 1623, 127 Cal.Rptr.3d 813, 816 (2011). California's venue laws provide that a corporation may be sued in (among other places) the county of the corporation's principal place of business. Cal.Civ.Proc.Code § 395.5. Mountain View, where Google's headquarters are located, is in Santa Clara County. Compl. at ¶ 8. The clause here therefore complies with California's venue laws and so is a valid venue-selection clause under California law.

b. Enforceability of the Forum–Selection Clause

As noted supra, the agreement contains a choice-of-law clause, separate from the forum-selection clause, which provides that the agreement “shall be governed by the laws of the State of California.” Crandall Decl. at Ex. B ¶ 20.7. A choice-of-law clause governs only substantive law, not procedural law. Phillips v. Audio Active, Ltd., 494 F.3d 378, 384–85 (2d Cir.2007); see Cronin v. Family Educ. Co., 105 F.Supp.2d 136, 139 (E.D.N.Y.2000). Questions of venue and forum are procedural, so the enforceability of the forum-selection clause is governed by federal law. Phillips, 494 F.3d at 384–85;Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990); BNY AIS Nominees Ltd. v. Quan, 609 F.Supp.2d 269, 274 (D.Conn.2009); ...

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  • Matera v. Google Inc.
    • United States
    • U.S. District Court — Northern District of California
    • 23 d5 Setembro d5 2016
    ...terms of service when the terms of service provided that modificationswere effective upon posting); see also Rudgayzer v. Google, Inc., 986 F. Supp. 2d 151, 154 n.1 (E.D.N.Y. 2013) (noting that plaintiffs consented to Google's terms of service because the earlier terms of service provide th......
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    • U.S. District Court — Eastern District of New York
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    ...to give effect to the parties' forum-selection clause and transfer this case to a court in Manhattan."); Rudgayzer v. Google, Inc., 986 F. Supp. 2d 151, 155 (E.D.N.Y. 2013) ("Questions of venue and forum are procedural, so the enforceability of the forum-selection clause is governed by fede......
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    • United States
    • U.S. District Court — Eastern District of North Carolina
    • 28 d3 Junho d3 2017
    ...28 day of June 2017. /s/_________ JAMES C. DEVER III Chief United States District Judge 1. Apple also cites Rudgayzer v. Google, Inc., 986 F. Supp.2d 151, 156-57 (E.D.N.Y. 2013), which applied Nedlloyd and other California cases to a forum-selection clause that covered "any legal matter ari......
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    • California Lawyers Association California Litigation (CLA) No. 33-1, 2020
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