Doe v. Facebook, Inc.

• Decision Date: 16 May 2023
• Docket Number: Civil Action H-22-0226
• Parties: JANE DOE (K. B.), Plaintiff, v. FACEBOOK, INC., n/k/a META PLATFORMS, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

1

JANE DOE (K. B.), Plaintiff, v. FACEBOOK, INC., n/k/a META PLATFORMS, INC., Defendant.

Civil Action No. H-22-0226

United States District Court, S.D. Texas, Houston Division

May 16, 2023

MEMORANDUM OPINION A ORER

SIM LAKE SENIOR, UNITED STATES DISTRICT JUDGE

Plaintiff Jane Doe (K.B.) ("Plaintiff"), brings this action against Defendant Facebook, Inc., n/k/a Meta Platforms, Inc. ("Defendant" or "Facebook"}, alleging that Defendant violated the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), 18 U.S.C. § 1591 et seq.^[1] Pending before the court is Defendant Meta Platforms, Inc.'s Motion to Transfer Venue under 28 U.S.C. § 1404(a) to the United States District Court for the Northern District of California ("Defendant's Motion") (Docket Entry No. 47). After carefully considering the parties' arguments and the applicable law, the court is persuaded that Defendants' Motion should be granted.

I. Background and Procedural History

A. Factual Background^[2]

Defendant owns the social media website Instagram. In 2017 Plaintiff was a female Instagram user living in Florida. When Plaintiff created her Instagram account she encountered a notice informing her that account registration constituted agreement to Instagram's Terms of Use. The notice contained a hyperlink, through which a would-be Instagram user could review the Terms of Use. The preamble explained that the Terms of Use bound all Instagram users by stating that

[t]hese Terms of Use are effective on January 19, 2013.

By accessing or using the Instagram website, the Instagram service, or any applications (including mobile applications) made available by Instagram (together, the "Service"), however accessed, you agree to be bound by these terms of use ("Terms of Use") . The Service is owned or controlled by Instagram, LLC ("Instagram") .

These ters of Use affect your legal rights and obligations. If you do not agree to be bound by all of these Ters of Use, do not access or use the Service.^[3]

The Terms of Use contained a forum-selection clause, which stated:

Governing Law & Venue

These Terms of Use are governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action at law or in equity . . . you agree to resolve any dispute you have with Instagram exclusively in the state or federal court located in Santa Clara, California, and to submit to the personal jurisdiction of the courts located in Santa Clara County for the purpose of litigating all such disputes.^[4]

Instagram's algorithms connected Plaintiff with R.L., a male sex trafficker with whom Plaintiff had no previous relationship. Using Instagram R.L. groomed Plaintiff for sex trafficking. By the summer of 2017 R.L. was making public posts on Instagram that obviously advertised Plaintiff for sale for sex. For the next year Plaintiff was repeatedly sold for sex through Instagram and was assaulted by numerous men in Houston, Texas.

R.L. was later convicted for sex trafficking crimes in the Southern District of Texas, and sentenced to 40 years in prison. Plaintiff testified against R.L. at his trial.

Plaintiff alleges that despite the open and obvious sex trafficking content on R.L.'s Instagram page and multiple reports regarding that content, Defendant failed to take any action against the page while Plaintiff was being trafficked. Plaintiff alleges that Defendant allows sex trafficking to flourish on its platform as a means to reap benefits by creating connections between users and maximizing advertising revenue.

B. Procedura1 Background^[5]

Plaintiff initiated this action on January 14, 2022, by filing an original and amended petition in the 234th Judicial District Court of Harris County, Texas (Civil Action No. 2022-02660) .^[6] On January 21, 2022, Defendant removed the action to this court asserting diversity jurisdiction under 28 U.S.C. § 1332(a) (Docket Entry No. 1). On February 22, 2022, Defendant filed a Motion to Dismiss (Docket Entry No. 12). On March 14, 2022, Plaintiff filed a Second Amended Complaint (Docket Entry No. 13), and on March 16, 2022, the court denied Defendant's Motion to Dismiss as moot (Docket Entry No. 14) . Defendant filed the pending motion to transfer on February 23, 2023, Plaintiff responded on March 22, 2023, and Defendant replied on March 29, 2023.^[7]

II. Law and Aalysis

Defendant urges the court to grant the pending motion to transfer arguing that (1) by assenting to Instagram's Terms of Use, Plaintiff agreed to a mandatory forum selection clause; (2) the mandatory forum selection clause to which Plaintiff agreed is enforceable; and (3) Plaintiff cannot establish that public interest factors overwhelmingly disfavor transfer to the Northern District of California.^[8] Plaintiff responds that her passive agreement to a forum selection clause buried in Instagram's Terms of Use cannot support transfer of her TVPRA claim to Defendant's chosen forum because (1) her TVPRA claim falls outside of the forum selection clause because it is premised on criminal conduct facilitated by Defendant that no Instagram user could reasonably have foreseen would be subject to such a clause; (2) the forum selection clause is unreasonable under the circumstances; and (3) the criminal conduct underlying her TVPRA claim is an extraordinary circumstance that precludes enforcement of the forum selection clause.^[9]

A. Aplicale Law

1. 28 U.S.C. § 1404(a}

Motions to transfer venue are governed by 28 U.S.C. § 1404(a), Stewart Organization, Inc. v. Ricoh Corporation, 108 S.Ct. 2239, 2245 (1988), which provides that

[f]or the convenience of the parties and witnesses, in the interest of Justice, a district court may transfer any civil action . . . to any district or division to which all parties have consented.

28 U.S.C. § 1404 (a). In the typical case not involving a forum-selection clause, district courts analyze the propriety of transfer based on the convenience of the parties (referred to as the "private interest factors"), and various public-interest considerations (referred to as the "public interest factors"). See Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas, 134 S.Ct. 568, 581-82 (2013) . "The calculus changes, however, when the parties' contract contains a valid forum-selection clause, which 'represents the parties' agreement as to the most proper forum.'" Id. at 581 (quoting Stewart, 108 S.Ct. at 2245). In such cases courts afford the forum selection clauses "controlling weight in all but the most exceptional cases." Id.

In considering whether to transfer a case under 28 U.S.C. § 1404(a) pursuant to a forum selection clause, courts follow a multi-step process. See Weber v. PACT XPP Technologies, AG, 811 F.3d 758, 768 (5th Cir. 2016); and PCL Civil Constructors, Inc. v. Arch Insurance Co., 979 F.3d 1070, 1074 (5th Cir. 2020). First, applying principles of contract law as necessary, the court evaluates whether the forum selection clause is mandatory or permissive, is valid, and whether the parties' dispute falls within the scope of the clause. Weber, 811 F.3d at 768, 770-71; PCL, 979 F.3d at 1073-75. Atlantic Marine, 134 S.Ct. at 581 n. 5 (stating that the analysis in that case "presuppose[s] a contractually valid forum-selection clause"). Although federal law governs the enforceability of forum selection clauses, it does not govern their interpretation. See Weber, 811 F.3d at 769; PCL, 979 F.3d at 1075. If the court concludes that the forum selection clause is mandatory, is valid, and that the parties' dispute falls within the scope of the clause, the clause is presumptively enforceable, and to prevent transfer, the resisting party must satisfy a "heavy burden" of showing that enforcement of the clause would be unreasonable under the circumstances. Weber, 811 F.3d at 773-74; PCL, 979 F.3d at 1073-75; Haynsworth v. Corporation, 121 F.3d 956, 963 (5th Cir. 1997), cert. denied, 118 S.Ct. 1513 (1998). If the court concludes that the forum selection clause is enforceable, the court must decide if extraordinary circumstances disfavor transfer. Weber, 811 F.3d at 775-76; PCL, 979 F.3d at 1074. If no extraordinary circumstances disfavor transfer, the court should grant the motion to transfer. Atlantic Marine, 134 S.Ct. at 581 ("Only under extraordinary circumstances unrelated to the convenience of the parties should a § 1404(a) motion be denied."). "[T]he plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted." Id. at 581.

2. Choice of Law

Federal law governs the enforceability of forum selection clauses in both diversity and federal question cases, but does not govern interpretation of such clauses. See Barnett v DynCorp International, L.L.C., 831 F.3d 296, 301-02 (5th Cir. 2016) (citing Haynsworth, 121 F.3d at 962, and Weber, 811 F.3d at 770-71). In Fintech Fund, F.L.P. v. Horne, 836 Fed.Appx. 215, 223 (5th Cir. 2020), the Fifth Circuit applied state law to interpret a forum selection clause after observing that "[t]he district court applied Texas law, stating that '[t]he parties do not dispute that Texas law governs.' But the parties did not, in fact, acquiesce to the application of Texas law. As such, the district court should have engaged in a choice-of-law analysis." Although Defendant has observed that Instagram's Terms of Use call for the application of California law,^[10] neither party has addressed this issue or acquiesced to the application of Texas law. To interpret the meaning and...