Case 5:22-cv-05691-BLF Document 41 Filed 10/03/22 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`Civil Action No. 22-cv-00033-RDB
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`TIARA N. JOHNSON,
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`Plaintiff.
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`META PLATFORMS, INC.
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`and JOHN DOE,
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`Defendants.
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`MEMORANDUM ORDER ON MOTION TO DISMISS
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`Defendant Meta Platforms, Inc. (“Meta”) has filed this Motion to Dismiss or, in the
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`Alternative, to Transfer Venue, in response to Plaintiff Tiara Johnson’s (“Ms. Johnson’s”)
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`Amended Complaint. (Mem. Supp. Mot. to Dismiss, ECF No. 32-1.) Meta asserts that
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`dismissal is proper pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6) as this Court lacks personal
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`jurisdiction over Meta, and because Ms. Johnson has failed to state a claim upon which relief
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`may be granted. (Id. at 5–25.) Most significantly, Meta points out that the parties have agreed
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`to a valid forum selection clause in Instagram’s Terms of Use,1 under which the parties agree
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`to litigate in the United States District Court for the Northern District of California. (Id. at
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`26–28.) In response, Ms. Johnson avers that the arbitration clause in Instagram’s Terms of
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`Use should prevail and asks this Court to stay this action and compel the parties to arbitrate.
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`(Mem. Supp. Resp. Opp’n to Mot. ¶¶ 72–82, ECF No. 33-1.) For the foregoing reasons, Meta’s
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`1 Instagram is a social networking service owned and operated by Meta.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`Civil Action No. 22-cv-00033-RDB
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`TIARA N. JOHNSON,
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`Plaintiff.
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`META PLATFORMS, INC.
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`and JOHN DOE,
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`Defendants.
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`MEMORANDUM ORDER ON MOTION TO DISMISS
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`Defendant Meta Platforms, Inc. (“Meta”) has filed this Motion to Dismiss or, in the
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`Alternative, to Transfer Venue, in response to Plaintiff Tiara Johnson’s (“Ms. Johnson’s”)
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`Amended Complaint. (Mem. Supp. Mot. to Dismiss, ECF No. 32-1.) Meta asserts that
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`dismissal is proper pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6) as this Court lacks personal
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`jurisdiction over Meta, and because Ms. Johnson has failed to state a claim upon which relief
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`may be granted. (Id. at 5–25.) Most significantly, Meta points out that the parties have agreed
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`to a valid forum selection clause in Instagram’s Terms of Use,1 under which the parties agree
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`to litigate in the United States District Court for the Northern District of California. (Id. at
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`26–28.) In response, Ms. Johnson avers that the arbitration clause in Instagram’s Terms of
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`Use should prevail and asks this Court to stay this action and compel the parties to arbitrate.
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`(Mem. Supp. Resp. Opp’n to Mot. ¶¶ 72–82, ECF No. 33-1.) For the foregoing reasons, Meta’s
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`1 Instagram is a social networking service owned and operated by Meta.
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`Case 5:22-cv-05691-BLF Document 41 Filed 10/03/22 Page 2 of 7
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`Motion to Dismiss or, in the Alternative, to Transfer Venue (ECF No. 32) is DENIED as to
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`dismissal but GRANTED as to transfer. This case will be transferred to the United States
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`District Court for the Northern District of California.
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`BACKGROUND
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`Meta is the owner and operator of Instagram, a social media platform with over one
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`billion worldwide users. (See Resp. to Mot. 1; Instagram Statistics and Trends, DATAREPORTAL
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`(Aug. 15, 2022), https://datareportal.com/essential-instagram-stats.) Ms. Johnson has been
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`an Instagram user since 2011 and is a resident of Harford County, Maryland. (First Am.
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`Compl. ¶¶ 1, 21, ECF No. 21.) Through her verified account (@LICKMYKAKEZ), Ms.
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`Johnson has gained over 2.8 million followers and runs a successful business selling “adult
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`toys” and “products.” (Id. ¶¶ 1, 14.) Ms. Johnson alleges that Instagram disabled her account
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`on or about July 1, 2021, thereby disrupting her ability to transact her business and breaching
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`its obligations under the Instagram Terms of Use (the “Terms”). (Id. ¶¶ 23, 29.) The Plaintiff
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`claims that her efforts to reactivate her account through Instagram’s Help Center failed, and
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`that Meta failed to timely and adequately respond to her requests. (Id. ¶ 30.)
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`Ms. Johnson further asserts that her account was suspended after a John Doe was paid
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`to “bring her account down.” (Id. ¶ 31.) Ms. Johnson contends that the John Doe demanded
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`that she pay $3,000 and promised to reactivate her account if the ransom was paid. (Id. ¶ 32.)
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`Ms. Johnson allegedly paid the $3,000 ransom, but never heard from this individual again. (Id.)
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`Thereafter, Ms. Johnson alleges that Facebook has permitted “false and imitation accounts”
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`asserting to be Ms. Johnson to violate her trademark. (Id. ¶¶ 33–34.)
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`2
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`Case 5:22-cv-05691-BLF Document 41 Filed 10/03/22 Page 3 of 7
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`On December 2, 2021, Ms. Johnson filed suit against Meta in the Circuit Court of
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`Maryland for Harford County. (Mem. Supp. Mot. to Dismiss 1; Notice of Removal 1, ECF
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`No. 1.) The state action was removed to this Court on January 6, 2022, under 28 U.S.C. §§
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`1331, 1332, and 1367. (Notice of Removal 1.) Ms. Johnson filed the operative First Amended
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`Complaint in this Court on February 10, 2022, asserting four counts against Meta: breach of
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`contract (Count I); tortious interference with prospective relations (Count III); two counts of
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`trademark infringement under the Lanham Act, 15 U.S.C. §§ 1114–1117 (Count IV); and
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`unfair competition (Count V).2 (First Am. Compl. ¶¶ 20–34, 44–54, 55–65, 66–72.) In
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`response to Ms. Johnson’s complaint, on March 10, 2022, Meta filed the instant Motion to
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`Dismiss or, in the Alternative, to Transfer Venue (ECF No. 32).
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`The motion is ripe for review.
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`ANALYSIS
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`Meta asserts in its motion that this matter should be dismissed pursuant to Fed. R. Civ.
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`P. 12(b)(2) and (6). To survive a challenge under Rule 12(b)(2), a plaintiff must demonstrate
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`that the defendant is subject to the jurisdiction of the forum wherein the case was filed. See
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`Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (explaining
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`that “to assert personal jurisdiction over a nonresident defendant, two conditions must be
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`satisfied: (1) the exercise of jurisdiction must be authorized under the state’s long-arm statute;
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`and (2) the exercise of jurisdiction must comport with the due process requirements of the
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`Fourteenth Amendment” (citing Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan,
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`2 Ms. Johnson also brings a claim of tortious interference with contractual relations, but this count
`(Count II) is only alleged against John Doe. (First Am. Compl. ¶¶ 35–43.)
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`Case 5:22-cv-05691-BLF Document 41 Filed 10/03/22 Page 4 of 7
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`259 F.3d 209, 215 (4th Cir.2001))). “‘[T]he purpose of Rule 12(b)(6) is to test the sufficiency
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`of a complaint’ and not to ‘resolve contests surrounding the facts, the merits of a claim, or the
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`applicability of defenses.’” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)
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`(quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)).
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`In the alternative, Meta requests that this Court transfer this case to the United States
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`District Court for the Northern District of California pursuant to Instagram’s Terms of Use
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`(the “Terms”). Forum-selection clauses in this jurisdiction and throughout the country “are
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`presumptively enforceable.” Secure Fin. Serv., Inc. v. Popular Leasing USA, Inc., 391 Md. 274, 282
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`(2006). The United States Supreme Court has made clear that where “the parties have agreed
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`to a valid forum-selection clause, a district court should ordinarily transfer the case to the
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`forum specified in that clause” under 28 U.S.C. § 1404(a). Atl. Marine Constr. Co. v. U.S. Dist.
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`Ct. for the W. Dist. of Tx., 571 U.S. 49, 62 (2013). When such a clause has been assented to, the
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`court “should not consider arguments about the parties’ private interests,” such as the
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`plaintiff’s choice of forum and convenience of the parties, that would otherwise be considered
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`under § 1404(a). Id. at 64. The plaintiff bears the burden of showing why the court should not
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`transfer the case pursuant to the forum-selection clause, and a court will only decline to
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`transfer a matter under “extraordinary circumstances unrelated to the convenience of the
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`parties.” Id. at 62. For the reasons outlined below, this Court need not address the merits of
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`Meta’s arguments for dismissal pursuant to the Federal Rules of Civil Procedure but will
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`instead transfer this matter to the United States District Court for the Northern District of
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`California, consistent with the forum selection clause in Instagram’s Terms of Use.
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`Case 5:22-cv-05691-BLF Document 41 Filed 10/03/22 Page 5 of 7
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`As the Supreme Court articulated in Atlantic Marine, where a contract contains a valid
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`forum selection clause, district courts should transfer cases to the selected venue absent
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`extraordinary circumstances. Id. at 62, 64. The forum selection clause in Instagram’s Terms is
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`presumed valid. See, e.g., id. at 62 n.5; Secure Fin. Serv., 391 Md. at 282; see also Oeste v. Zynga, Inc.,
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`No. CV GLR-20-1566, 2021 WL 1785139, at *3 n.3 (D. Md. May 5, 2021) (enforcing forum-
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`selection clause published online in Zynga’s terms of service). The burden is on Ms. Johnson
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`to challenge the forum selection clause and demonstrate why it should not be enforced. Bae
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`Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea’s Def. Acquisition Program Admin., 884 F.3d 463,
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`471 (4th Cir. 2018).
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`In the instant case, Ms. Johnson provides no reasons why the forum selection clause is
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`invalid, nor has she pointed to any extraordinary circumstances demonstrating why a transfer
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`should not be granted. Instead, in her response, Ms. Johnson requests that this Court stay
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`proceedings and compel arbitration. Like forum selection clauses, arbitration clauses are
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`presumptively valid and enforceable. Cain v. Midland Funding, LLC, 452 Md. 141, 152–53
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`(2017) (citing the Federal Arbitration Act, 9 U.S.C. § 2). Under Instagram’s Terms of Use, Ms.
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`Johnson had the choice of arbitrating this matter or resolving it through litigation. In pertinent
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`part, Instagram’s Terms state:
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`ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN
`YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL
`ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE
`IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. WE
`EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF
`ARBITRATION BELOW.
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`(Terms of Use 1, ECF No. 7-1.) Among the enumerated exceptions, parties may decline to
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`pursue this alternative dispute resolution process and instead proceed to court if the “dispute[]
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`Case 5:22-cv-05691-BLF Document 41 Filed 10/03/22 Page 6 of 7
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`relate[s] to intellectual property (like copyrights and trademarks).” (Id. at 8.) As this dispute
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`relates to intellectual property, Ms. Johnson was authorized under the Terms to proceed with
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`litigation. However, Instagram’s Terms also stipulate that if a party proceeds with litigation,
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`the matter “will be resolved exclusively in the U.S. District Court for the Northern District of
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`California.” (Id. at 9.) As Ms. Johnson raises no compelling argument this forum selection
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`clause is invalid, this Court concludes that transfer is the appropriate remedy in this case.
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`This Court will defer the question of whether this matter should be stayed and whether
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`arbitration ought to be compelled to the United States District Court for the Northern District
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`of California. This is a matter of state law that will ultimately be decided by the California
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`court. See, e.g., Cain, 452 Md. at 153–54 (citing Perry v. Thomas, 482 U.S. 483, 492–93 n.9 (1987)
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`for the proposition that questions surrounding arbitration clauses are questions of state
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`contract law). As this Court has previously noted, “[t]he question whether [to uphold an
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`arbitration clause and compel arbitration] is governed by state law.” In re Titanium Dioxide
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`Antitrust Litig., 962 F. Supp. 2d 840, 849 (D. Md. 2013) (citing Arthur Andersen LLP v. Carlisle,
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`556 U.S. 624, 630–31 (2009)). To respect the contractual agreement between the parties in the
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`forum selection clause, this Court also declines to address Meta’s arguments for dismissal
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`under the Federal Rules of Civil Procedure. Accordingly, Defendant Meta Platforms, Inc.’s
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`Motion to Dismiss, or in the Alternative, to Transfer Venue (ECF No. 32) is DENIED as to
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`dismissal, but GRANTED as to transfer of venue. This case will be transferred to the United
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`States District Court for the Northern District of California as assented to by the parties.
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`Case 5:22-cv-05691-BLF Document 41 Filed 10/03/22 Page 7 of 7
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`Accordingly, for the reasons stated above, it is hereby ORDERED this 3rd day of
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`CONCLUSION
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`October, 2022, that:
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`1. Defendant Meta Platforms, Inc.’s Motion to Dismiss or, in the Alternative, to Transfer
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`Venue (ECF No. 32) is DENIED as to dismissal, but GRANTED as to transfer;
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`2. This matter is transferred to the United States District Court for the Northern District
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`of California; and
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`3. The Clerk of the Court shall send copies of this Memorandum Order to the parties.
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`4. The Clerk of the Court shall CLOSE this case.
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`_____/s/_____________________
`Richard D. Bennett
`United States District Judge
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`7
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