Freedman v. America Online, Inc.

• Decision Date: 05 December 2003
• Docket Number: No. CIV. 3:03CV1048(PCD).,CIV. 3:03CV1048(PCD).
• Citation: 294 F.Supp.2d 238
• Court: U.S. District Court — District of Connecticut
• Parties: Clifton S. FREEDMAN, Plaintiff, v. AMERICA ONLINE, INC., the Town of Fairfield, and Detectives William Young and David Bensley (individually and in their official capacities) Defendants.

294 F.Supp.2d 238

Clifton S. FREEDMAN, Plaintiff, v. AMERICA ONLINE, INC., the Town of Fairfield, and Detectives William Young and David Bensley (individually and in their official capacities) Defendants.

No. CIV. 3:03CV1048(PCD).

United States District Court, D. Connecticut.

December 5, 2003.

COPYRIGHT MATERIAL OMITTED

Calvin Kin-Meng Woo, Pepe & Hazard, Southport, CT, Daniel J. Klau, Pepe & Hazard, Hartford, CT, for Plaintiff.

C. Colin Rushing, Samir Jain, Wilmer, Cutler & Pickering, Washington, DC, Rowena Amanda Moffett, Brenner, Saltzman & Wallman, New Haven, CT, Mark A. Perkins, Thomas M. Murtha, Maher & Murtha, Bridgeport, CT, Paul E. Pollock, Bai, Pollock, Blueweiss & Mulcahey, Bridgeport, CT, for Defendants.

RULING ON DEFENDANT AOL'S MOTION TO DISMISS

DORSEY, District Judge.

In light of a forum selection clause in its contract with Plaintiff, Defendant America Online, Inc. ("AOL") moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(3) or 12(b)(6). For the reasons discussed herein, AOL's motion is granted.

I. Background¹

At all times relevant to this action, Plaintiff subscribed to internet service from AOL. Compl. ¶¶ 4, 26. Section 8 of the AOL Member Agreement contains a forum selection clause providing that "exclusive jurisdiction for any claim or dispute with AOL or relating in any way to your membership with or your use of AOL resides in the courts of Virginia." AOL Member Agreement § 8, Davis Decl. Exh. A.

Plaintiff alleges that AOL unlawfully disclosed his identity to the Town of Fairfield Police Department in response to a defective search warrant application that had never been presented to a judge. Compl. ¶ 1. The allegations stem from an e-mail sent by Plaintiff on or about March 31, 2003, involving a political campaign. Compl. ¶ 12. The e-mail stated "The End is Near." Compl. ¶ 12. On or about April 1, 2003, two recipients of the e-mail reported the incident to the Fairfield Police Department, claiming they had received a harassing and/or obscene message on their computers. Compl. ¶ 13.

On April 1, 2003, Defendants Young and Bensey sent a deficient warrant application, which was never submitted to a judge for approval and did not bear a judge's signature, to AOL. Compl. ¶ 17-18. On April 7, 2003, AOL faxed Plaintiff's subscriber information, including his address, phone numbers, account status, membership information, software information, billing and account information, all of his screen names, and the activity of all of his screen names, to Young and Bensey. Compl. ¶ 21. Consequently, the Fairfield Police Department disclosed Plaintiff's identity and other screen names to the public. Compl. ¶ 22.

Plaintiff alleges that AOL has violated the Electronic Communication Privacy Act, 18 U.S.C. § 2701 (Count One), breached its contract with him by disclosing his privacy information (Count Two), and violated the Connecticut Unfair Trade Practices Act ("CUTPA") (Count Three).²

Plaintiff alleges that he has been subject to ridicule, his reputation in the Fairfield community has been damaged, he has suffered great emotional distress, and his ability to earn a living through his real estate business has been destroyed. Compl. ¶ 24. He seeks (1) compensatory damages, (2) punitive damages, (3) attorneys' fees and costs, (4) indemnification pursuant to CONN. GEN. STAT. § 7-465, and (5) any other relief deemed appropriate by the Court.

II. Standard

Motions to dismiss pursuant to forum selection clauses are properly characterized as based on FED. R. CIV. P. 12(b)(6). Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 508 n. 6 (2d Cir.1998) (citing Lambert v. Kysar, 983 F.2d 1110, 1112 n. 1 (1st Cir.1993)) (Rule 12(b)(6) is the proper "procedural vehicle for urging dismissal under [a] forum selection clause").

A motion to dismiss pursuant to Rule 12(b)(6) is properly granted when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69 (2d Cir.2001) (internal quotation marks omitted). A motion to dismiss must be decided on the facts as alleged in the complaint. Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir.2001). All allegations are assumed to be true and are considered in a light most favorable to the non-movant. Manning v. Util. Mut. Ins. Co., 254 F.3d 387, 390 n. 1 (2d Cir.2001). "The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his or her claims." United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990). In its review of a 12(b)(6) motion to dismiss, a court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir.1993).

III. Discussion

AOL argues that Plaintiff fails to state a claim because the forum selection clause clearly provides that "`any claim or dispute' with AOL `relating in any way to Plaintiff's membership or . . . use of AOL' be brought in a court in Virginia." AOL Mem. in Supp. of Mot. to Dismiss at 2-3 (quoting Member Agreement § 8). Plaintiff argues that "the interests of judicial economy and trial convenience" favor "trying the claims against all of the defendants, including AOL, in one proceeding before . . . this Court." Pl. Opp. at 2.

A. Enforceability of Forum Selection Clause

Contractual forum-selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). A forum selection clause can bind the parties even where the agreement in question is a form consumer contract and not subject to negotiation. Carnival Cruise Lines v. Shute, 499 U.S. 585, 589-95, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). The party resisting a forum selection clause "must overcome a substantial presumption in favor of enforcement." Indymac Mortgage Holdings v. Mostafa Reyad, 167 F.Supp.2d 222, 244 (D.Conn.2001). Forum selection clauses should be enforced unless the resisting party "clearly show[s] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." The Bremen, 407 U.S. at 15, 92 S.Ct. 1907; see also Bense v. Interstate Battery Sys. of Am., 683 F.2d 718, 721-22 (2d Cir.1982). Enforcement of a forum-selection clause is inappropriate where it "would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision." Id.

B. Scope of Forum Selection Clause

Plaintiff does not dispute that he agreed to the terms of service, including the Membership Agreement, when he subscribed to AOL's services. Taking the facts in the light most favorable to Plaintiff, his claims are "claims or disputes with AOL" which relate to his membership and/or his use of AOL's services. See Hughes v. McMenamon, 204 F.Supp.2d 178, 181 (D.Mass. 2002). The forum selection clause is enforceable and Plaintiff's claims fall within its scope. See id.

C. Dismissal or Transfer

Plaintiff contends that "AOL has invoked the wrong procedural vehicle for enforcing its forum selection clause," and should have moved for a transfer of venue rather for dismissal. Pl. Opp. at 3. Plaintiff relies on a pre-Carnival Cruise Lines decision of this Court to argue that Defendant should have moved for a transfer of venue pursuant to 28 U.S.C. § 1404(a). Pl. Opp. at 3-4 (citing TUC Electronics, Inc. v. Eagle Telephonics, Inc., 698 F.Supp. 35 (D.Conn.1988)).

In TUC Electronics, the defendant moved to dismiss the suit bought by the plaintiff in Connecticut District Court on the basis of a forum selection clause instructing that any claims relating to the parties' contract shall be submitted to a court "of the State of New York." TUC Electronics, 698 F.Supp. at 37 (quoting forum selection clause). The defendant moved to dismiss due to improper venue, and the plaintiff, "apparently conceding" that venue was improper in Connecticut, moved for transfer of venue to New York. Id. The defendant argued that the forum selection clause provides venue exclusively in the New York state courts, while the plaintiff contended that the Court had discretion to transfer the case to a New York federal court. Id. at 38-39. Here, unlike in TUC Electronics Plaintiff does not concede that venue is improper in Connecticut. Carnival Cruise Lines and its progeny provide that dismissal may be appropriate where a party disregards a forum selection clause and brings suit in a noncompliant venue, Evolution Online Sys., Inc., 145 F.3d at 508 n. 6, especially where the forum selection clause allows suit both in state and federal courts, Indymac Mortgage Holdings, 167 F.Supp.2d at 247-28.

Plaintiff devotes much of his memorandum arguing why, in his opinion, transfer to Virginia is inappropriate. He fails to address the forum selection clause issue sufficiently, conceding that "usually" and "generally" forum selection clauses are enforceable. Pl. Opp. at 2, 9. Aside from arguing that it would be inconvenient for him to sue AOL in Virginia and the remaining Defendants in Connecticut, Plaintiff does not contend that it would be "`unreasonable' under the circumstances." The Bremen, 407 U.S. at 10, 92 S.Ct. 1907. Mandatory forum selection clauses have been found unreasonable.

(1) if their incorporation into the agreement was the result of fraud or overreaching; (2) if the complaining party will for all practical purposes be deprived of his day in court, due to the grave inconvenience or unfairness of the selected forum; (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (4) if the...