Case 1:21-cv-22440-KMW Document 75 Entered on FLSD Docket 09/17/2021 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 21-22440-CIV-WILLIAMS/MCALILEY
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`DONALD J. TRUMP, et al.,
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`v.
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`Plaintiffs,
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`FACEBOOK, INC. and
`MARK ZUCKERBERG,
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`Defendants.
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`_____________________________/
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`DEFENDANTS’ MOTION TO TRANSFER
`TO THE NORTHERN DISTRICT OF CALIFORNIA
`AND MEMORANDUM OF LAW IN SUPPORT THEREOF
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`Case 1:21-cv-22440-KMW Document 75 Entered on FLSD Docket 09/17/2021 Page 2 of 16
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`INTRODUCTION
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`This case is meritless and should be dismissed as a matter of law, as Defendants will
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`explain in due course in their forthcoming motion to dismiss. But even aside from its substantive
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`deficiencies, Plaintiffs’ lawsuit suffers from a threshold defect: It was filed in the wrong forum.
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`Like all Facebook users, Plaintiffs accepted Facebook’s Terms of Service as a condition of using
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`the Facebook service. Those Terms unambiguously require users to litigate in California if they
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`assert claims like these that arise out of or relate to Facebook’s products or policies. As the
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`Supreme Court has explained, a “valid forum-selection clause” like the one in Facebook’s Terms
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`“should be given controlling weight in all but the most exceptional cases.” Atl. Marine Constr.
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`Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 62–64 (2013). Applying that rule, courts in
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`this District and elsewhere routinely enforce Facebook’s forum-selection clause and transfer cases
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`to the Northern District of California pursuant to 28 U.S.C. § 1404(a). E.g., Loomer v. Facebook,
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`Inc., 2020 WL 2926357, at *1 (S.D. Fla. Apr. 13, 2020); Soffin v. Echannel Network, Inc., 2014
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`WL 2938347, at *2 (S.D. Fla. June 30, 2014); see also, e.g., Loveland v. Facebook, Inc., 2021 WL
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`1734800, at *1 (E.D. Pa. May 3, 2021); Kidstar v. Facebook, Inc., 2020 WL 4382279, at *5 (D.N.J.
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`July 31, 2020); Hayes v. Facebook, Inc., 2019 WL 8275335, at *2 (D. Colo. Mar. 6, 2019). This
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`Court should do the same and transfer this case to the Northern District of California under the
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`forum-selection clause to which Plaintiffs agreed when they registered for and used Facebook.
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`BACKGROUND
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`Facebook, Inc. is a public company headquartered in California. Pls.’ First Am. Compl.
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`(“Am. Compl.”) (D.E. 16 at ¶ 26). It operates a social-media service that almost three billion
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`people worldwide use to create personal profiles, build communities, and share content. Id. ¶¶ 2,
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`20. Mark Zuckerberg is the CEO of Facebook and a resident of California. Id. ¶ 27.
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`1
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`Case 1:21-cv-22440-KMW Document 75 Entered on FLSD Docket 09/17/2021 Page 3 of 16
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`Plaintiffs in this case—Donald J. Trump, Elizabeth Albert, Kiyan and Bobby Michael,
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`Jennifer Horton, Andres Cabos, Magalys Rios, and Maria Rodriguez-Fresneda (collectively,
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`“Plaintiffs”)—are current and former Facebook users. Id. ¶ 243. They each established their
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`Facebook accounts between 2007 and 2019. Id. ¶¶ 59, 143, 148, 153, 165, 174, 182.
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`From at least 2007 to the present, Facebook has required all users registering a new account
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`to agree to Facebook’s Terms of Service (the “Terms”). See Decl. of Michael Duffey (“Duffey
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`Decl.”) at ¶ 2 (attached). To complete the registration process, users must confirm that they have
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`read and agree to the Terms. See id. ¶ 3.1
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`At all relevant times, Facebook’s Terms included a forum-selection clause identifying
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`California as the required venue for all claims arising out of or relating to Facebook’s Terms or
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`Facebook’s products. See, e.g., id. ¶ 5; id., Ex. A at § 4(4) (current Terms); id., Ex. B at § 4(4)
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`(Terms effective Oct. 1, 2020); id., Ex. C at § 4(4) (Terms effective July 31, 2019); id., Ex. D at
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`§ 4(4) (Terms effective Apr. 19, 2018). Facebook’s current forum-selection clause states:
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`For any claim, cause of action, or dispute you have against us that arises out of or
`relates to these Terms or the Facebook Products (“claim”), you agree that it will
`be resolved exclusively in the U.S. District Court for the Northern District of
`California or a state court located in San Mateo County. You also agree to submit
`to the personal jurisdiction of either of these courts for the purpose of litigating any
`such claim, and that the laws of the State of California will govern these Terms and
`any claim, without regard to conflict of law provisions.
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`Id., Ex. A at § 4(4) (emphasis added). The “Facebook Products” include “Facebook, Messenger,
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`and the other products, features, apps, services, technologies, and software” that Facebook offers.
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`Id., Ex. A at 1.
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`1 When deciding a motion to transfer under 28 U.S.C. § 1404, the Court may consider undisputed
`facts outside of the pleadings. See, e.g., Loomer, 2020 WL 2926357, at *2.
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`2
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`Case 1:21-cv-22440-KMW Document 75 Entered on FLSD Docket 09/17/2021 Page 4 of 16
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`Facebook’s Terms notify users that Facebook may modify the Terms and that continued
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`use of Facebook constitutes acceptance of those updated procedures:
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`We work constantly to improve our services and develop new features to make our
`Products better for you and our community. As a result, we may need to update
`these Terms from time to time to accurately reflect our services and practices.
`Unless otherwise required by law, we will notify you before we make changes to
`these Terms and give you an opportunity to review them before they go into effect.
`Once any updated Terms are in effect, you will be bound by them if you continue to
`use our Products. We hope that you will continue using our Products, but if you
`do not agree to our updated Terms and no longer want to be a part of the Facebook
`community, you can delete your account at any time.
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`Id. at § 4(1) (emphasis added).
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`Facebook’s Terms also explain that users cannot “do or share anything” that violates
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`Facebook’s Terms or Community Standards, and that Facebook can “remove or restrict access to
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`content that is in violation of these provisions.” Id. at § 3(2). The Community Standards outline
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`what content is and is not allowed on Facebook. Id. at § 5. Plaintiffs acknowledge that Facebook’s
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`Terms and Community Standards apply to them. See, e.g., Am. Compl. ¶¶ 160, 231, 232, 245.
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`For instance, plaintiff Jennifer Horton alleges she needed to understand “how to operate within the
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`boundaries of the Defendants’ Terms of Service because she did not want to lose her ability to
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`communicate again.” Id. ¶ 160.
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`On July 7, 2021, Plaintiffs commenced this litigation against Facebook and Mr. Zuckerberg
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`in the Southern District of Florida. See Pls.’ Compl. (“Compl.”) (D.E. 1). Plaintiffs did not serve
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`their initial complaint on either defendant. Then, on July 27, 2021, Plaintiffs filed an amended
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`complaint, adding three named plaintiffs as well as two state-law claims. The amended complaint
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`alleges that: (1) Facebook and Mr. Zuckerberg violated the First Amendment by censoring
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`constitutionally protected speech; (2) Section 230 of the Communications Decency Act
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`incentivized Facebook and Mr. Zuckerberg to “deplatform” and “censor” Plaintiffs, and so is
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`3
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`Case 1:21-cv-22440-KMW Document 75 Entered on FLSD Docket 09/17/2021 Page 5 of 16
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`unconstitutional; (3) Facebook and Mr. Zuckerberg violated the Florida Deceptive and Unfair
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`Trade Practices Act (“FDUTPA”) by failing to adhere to their “ostensibly objective standards”
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`regarding content moderation; and (4) Facebook and Mr. Zuckerberg violated Florida law by
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`“act[ing] in ways contrary to their published standards regarding censorship” and applying their
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`standards inconsistently. Am. Compl. ¶¶ 187–245.
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`Almost three weeks later—and still without having served either defendant—Plaintiffs
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`sought leave to file an overlength motion for preliminary injunction. (D.E. 30). To date, Plaintiffs
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`have not filed a motion for preliminary injunction, and they did not effect service of process on
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`either defendant. Instead, Facebook and Mr. Zuckerberg contacted Plaintiffs’ counsel and agreed
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`to waive service at their own initiative. (See D.E. 73, 74). Facebook and Mr. Zuckerberg now
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`move to transfer this case to the Northern District of California in accordance with the
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`forum-selection clause to which Plaintiffs agreed.
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`LEGAL STANDARD
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`A forum-selection clause is presumptively enforceable under 28 U.S.C. § 1404(a). See Atl.
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`Marine, 571 U.S. at 62–63. “When the parties have agreed to a valid forum-selection clause, a
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`district court should ordinarily transfer the case to the forum specified in that clause. Only under
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`extraordinary circumstances unrelated to the convenience of the parties should a § 1404(a) motion
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`be denied.” Id.; see also Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d 1231, 1236 (11th Cir. 2011)
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`(forum-selection clauses are “presumptively valid and enforceable”); Loomer, 2020 WL 2926357,
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`at *2 (same); Soffin, 2014 WL 2938347, at *1 (“If there is a valid forum-selection clause, … the
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`contractual venue selection controls.”).
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`A plaintiff’s contrary choice of forum “merits no weight,” and a district court is prohibited
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`from “consider[ing] arguments about the parties’ private interests.” Atl. Marine, 571 U.S. at 64.
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`4
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`Plaintiffs seeking to evade a forum-selection clause bear the heavy burden of demonstrating that
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`public-interest factors “overwhelmingly disfavor a transfer.” Id. at 67.
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`MEMORANDUM OF LAW
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`The Court should give “controlling weight” to Facebook’s forum-selection clause and
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`transfer this case to the Northern District of California. Atl. Marine, 571 U.S. at 63. The parties’
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`forum-selection clause is valid and enforceable, it covers Plaintiffs’ claims, and it is mandatory.
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`No extraordinary circumstances justify disregarding the parties’ agreement to litigate this case in
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`California, and the inclusion of Mr. Zuckerberg as a defendant does not change the outcome of the
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`transfer analysis. The Court should therefore grant a transfer pursuant to 28 U.S.C. § 1404(a).
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`I.
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`Facebook’s Forum-Selection Clause Is Valid And Enforceable.
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`“Forum-selection clauses are presumptively valid and enforceable unless the plaintiff
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`makes a ‘strong showing’ that enforcement would be unfair or unreasonable under the
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`circumstances.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009) (per
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`curiam); Sabino v. Kerzner Int’l Bahamas Ltd., 2014 WL 7474763, at *2 (S.D. Fla. Jan. 10, 2014)
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`(same). Under this standard, “[a] forum-selection clause will be invalidated when: (1) its
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`formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in
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`court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a
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`remedy; or (4) enforcement of the clause would contravene public policy.” Krenkel, 579 F.3d at
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`1281. None of these circumstances are present here, and Plaintiffs cannot bear the “heavy burden”
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`of circumventing their agreement to litigate in the Northern District of California. Margolis v.
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`Warner Chilcott (US), LLC, 2017 WL 9324774, at *2 (S.D. Fla. June 14, 2017).
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`To assess whether a contract was induced by “fraud or overreaching,” courts look to
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`whether “the clause was reasonably communicated to the consumer,” who then had an opportunity
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`5
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`to reject its terms. Krenkel, 579 F.3d at 1281.2 Here, Facebook’s forum-selection clause was
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`“reasonably communicated” to Plaintiffs, who were free to reject it. Each Plaintiff was presented
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`with Facebook’s Terms upon creating a Facebook account and was required to affirmatively agree
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`to the applicability of those terms to access the service. See Duffey Decl. ¶¶ 2–3. The Terms at
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`all relevant times identified California as the exclusive venue for disputes. Id. ¶ 5. Plaintiffs could
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`have declined the Terms at the outset and terminated the registration process. Instead, they
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`accepted Facebook’s Terms and are now bound by them. See, e.g., Segal v. Amazon.com, Inc.,
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`763 F. Supp. 2d 1367, 1369 (S.D. Fla. 2011) (enforcing forum-selection clause in terms accepted
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`by plaintiffs as a condition of creating account); Davis v. Avvo, Inc., 2011 WL 4063282, at *2–3
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`(M.D. Fla. Sept. 13, 2011) (similar). Indeed, Plaintiffs’ own allegations acknowledge that
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`Facebook’s Terms and Community Standards apply to them. See, e.g., Am. Compl. ¶ 160
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`(plaintiff Jennifer Horton recognizing she was unsure “of how to operate within the boundaries of
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`the Defendants’ Terms of Service because she did not want to lose her ability to communicate
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`again”). Plaintiffs complain about the scope and application of those policies, and allege that
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`Facebook applies them inconsistently. See id. ¶¶ 12, 41–45, 47, 220–32, 236–42.
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`Faced with similar motions to transfer, courts in this District and throughout the country
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`routinely treat Facebook’s Terms—and the forum-selection clause contained within them—as
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`binding. See Loomer, 2020 WL 2926357, at *1; Soffin, 2014 WL 2938347, at *2; see also, e.g.,
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`Dolin v. Facebook, Inc., 289 F. Supp. 3d 1153, 1160 (D. Haw. 2018) (“Under similar
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`circumstances, numerous courts have found Facebook’s … forum-selection clause to be valid.”)
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`2 Courts apply federal law to determine whether a forum-selection clause is enforceable. See, e.g.,
`P & S Bus. Machs., Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003). However, to the
`extent the application of state contract law is required to determine the validity of the
`forum-selection clause, “the laws of the State of California will govern” pursuant to Facebook’s
`Terms. Duffey Decl., Ex. A at § 4(4).
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`6
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`(collecting cases); Loveland, 2021 WL 1734800, at *1; Kidstar, 2020 WL 4382279, at *5; Hayes,
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`2019 WL 8275335, at *2; Thomas v. Facebook, Inc., 2018 WL 3915585, at *4 (E.D. Cal. Aug. 15,
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`2018) (“Indeed, the Court is not aware of any case concluding that the forum selection clause in
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`Facebook’s [Terms] is invalid.”); E.K.D. ex rel. Dawes v. Facebook, Inc., 885 F. Supp. 2d 894,
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`903 (S.D. Ill. 2012); Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 841 (S.D.N.Y. 2012). There is
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`no reason to depart from those decisions here. Transfer to the Northern District of California will
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`not “deprive[]” plaintiffs of their “day in court” or their available remedies, and there is no basis
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`to assert that transfer would “contravene public policy.” Loomer, 2020 WL 2926357, at *3–4
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`(granting Facebook’s motion to transfer to the Northern District of California). Accordingly, the
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`parties’ forum-selection clause is valid and enforceable.
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`II.
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`Plaintiffs’ Claims Fall Within The Clause’s Broad Scope.
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`All of Plaintiffs’ claims fall within the scope of the forum-selection clause. Facebook’s
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`Terms require that “any claim, cause of action, or dispute” against Facebook “that arises out of or
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`relates to these Terms or the Facebook Products … will be resolved exclusively in” California.
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`Duffey Decl., Ex. A at § 4(4). To fall within this provision, Plaintiffs’ “claims do not have to be
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`about a breach of the parties’ agreement”; they “merely have to ‘relate’ to the Terms” or Facebook
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`Products. Loomer, 2020 WL 2926357, at *3 (finding that “the terms of [Facebook’s]
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`forum-selection clause are broad” and encompass defamation claims); Miller v. Facebook, Inc.,
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`2010 WL 9525523, at *2 (N.D. Ga. Jan. 15, 2010) (holding that the use of the term “any dispute”
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`was “broad enough to include” patent-infringement claims where the alleged infringement
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`“occurred either on Facebook’s website or in the use of Facebook’s site”); see also Stewart Org.,
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`Inc. v. Ricoh Corp., 810 F.2d 1066, 1070 (11th Cir. 1987) (finding that where a contract refers to
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`“any ‘case or controversy arising under or in connection with this Agreement’ ... [it] includes all
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`causes of action arising directly or indirectly from the business relationship evidenced by the
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`contract”); Jiangsu Hongyuan Pharm. Co., Ltd. v. DI Glob. Logistics Inc., 159 F. Supp. 3d 1316,
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`1326 (S.D. Fla. 2016) (“In this Circuit, … ‘[c]lauses referencing any lawsuit regarding this
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`agreement and any action brought by either party in any court have been broadly construed.’”).
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`Here, Plaintiffs’ claims fall within the scope of the forum-selection clause for two
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`independent reasons. First, all of Plaintiffs’ claims “arise[] out of or relate[] to” a “Facebook
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`Product,” specifically the Facebook service itself. Plaintiffs assert that Facebook limited or
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`removed their ability to use its service to post content, whether by censoring their posts or banning
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`them from the service. See, e.g., Am. Compl. ¶¶ 12, 54, 132. For instance, Mr. Trump alleges that
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`Facebook “censored” his Facebook account and “block[ed] his ability” to use the service to
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`communicate with his followers. Id. ¶ 139. Each Plaintiff also makes similar allegations regarding
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`deplatforming, suspension, or assertions that pages are “monitored” or “fact-checked.” See, e.g.,
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`id. ¶¶ 146, 151, 156, 158, 168–170, 172, 177–180, 184–186. These allegations “relate to”
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`Plaintiffs’ use of Facebook and thus fall within the broad language of the forum-selection clause.
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`Moreover, each cause of action stems from Plaintiffs’ service-specific allegations: Plaintiffs’ First
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`Amendment and Section 230 claims hinge on Facebook’s alleged censorship of content on the
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`Facebook service, and both state-law claims relate to Facebook’s treatment of third-party content
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`on that same service.
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`Second, the forum-selection clause also applies to Plaintiffs’ claims because they “arise out
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`of or relate to [Facebook’s] Terms”––which mandate compliance with Facebook’s Community
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`Standards. As described above at 3, Facebook’s Terms restrict what users “can share and do on
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`Facebook” and notify users that Facebook “can remove or restrict access to content that is in
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`violation of” Facebook’s Terms, including its Community Standards. Plaintiffs’ First Amendment
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`claims challenge Facebook’s applications of those standards in removing Plaintiffs’ content and
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`accounts. See Am. Compl. ¶¶ 220–21, 236–37, 239–42. And both of Plaintiffs’ state-law claims
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`explicitly rely on Facebook’s alleged noncompliance with, and inconsistent application of, its own
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`policies. Plaintiffs claim that Facebook “repeatedly failed to act in good faith and accordance with
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`[its] stated policies” and has “engaged in a subjective pattern of discriminating against disfavored
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`parties” despite having “policies ostensibly proclaim objective, uniform standards.” Id. ¶¶ 220–
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`21; see also id. ¶¶ 236–37, 239–41. Indeed, Plaintiffs’ requested relief proves the point. They ask
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`the Court for an order “compelling Defendants to honor their own policies,” “consistently to apply
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`Defendants’ own standards” and “only apply Defendants’ published standards when evaluating
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`content on the platform.” Id. ¶ 245. Each of those requests “arises out of or relates to” the Terms.
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`III.
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`Facebook’s Forum-Selection Clause Is Mandatory.
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`Facebook’s forum-selection clause is mandatory because it “dictates an exclusive forum
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`for litigation under the contract.” Coffee Bean Trading-Roasting, LLC v. Coffee Holding, Inc., 510
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`F. Supp. 2d 1075, 1077 (S.D. Fla. 2007). The clause provides that applicable claims “will be
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`resolved exclusively in the U.S. District Court for the Northern District of California or a state
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`court located in San Mateo County.” Duffey Decl., Ex. A at § 4(4) (emphases added). This
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`language is unequivocal and mandatory. See, e.g., E.K.D. ex rel. Dawes, 885 F. Supp. 2d at 901
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`(“A forum-selection clause is mandatory where its language is obligatory and clearly manifests an
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`intent to make venue compulsory and exclusive.”); see also Emerald Grande, Inc. v. Junkin, 334
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`F. App’x 973, 976 (11th Cir. 2009) (language declaring that specific court “will be the venue for
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`any dispute” is mandatory); Trafalgar Cap. Specialized Inv. Fund v. Hartman, 878 F. Supp. 2d
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`1274, 1283–84 (S.D. Fla. 2012) (nondiscretionary terms such as “exclusively” are “the hallmark
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`of a mandatory forum selection clause”).
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`IV. No Extraordinary Circumstances Justify Disregarding The Parties’ Contract.
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`No “extraordinary circumstances” justify disregarding the parties’ agreement to this valid
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`forum-selection clause. Although 28 U.S.C. § 1404 typically requires a broad inquiry into
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`“whether, on balance, a transfer would serve ‘the convenience of parties and witnesses’ and
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`otherwise promote ‘the interest of justice,’” “[t]he presence of a valid forum-selection clause
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`requires district courts to adjust their usual § 1404(a) analysis.” Atl. Marine, 571 U.S. at 62–63
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`(quoting § 1404(a)). Courts must ignore “arguments about the parties’ private interests,” id., and
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`instead only (1) “determine whether an adequate alternative forum exists” and (2) “consider the
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`relevant public interest factors to determine whether dismissal is appropriate,” Gordon v. Sandals
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`Resorts Int’l, Ltd., 418 F. Supp. 3d 1132, 1142 (S.D. Fla. 2019). Here, the relevant factors require
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`transfer to the Northern District of California.
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`A.
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`The Northern District Of California Is An Adequate Alternative Forum.
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`“[T]he Northern District of California is clearly an available adequate alternative forum for
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`the litigation of Plaintiffs’ claims.” Hindi v. BirdEye, Inc., 2019 WL 4091425, at *8 (S.D. Fla.
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`Aug. 29, 2019). That court has personal jurisdiction over Facebook, which is headquartered there,
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`as well as over Mr. Zuckerberg, who resides there.3 See Am. Compl. ¶¶ 26–27; see also
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`Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th Cir. 2015) (noting a corporation’s
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`principal place of business is a “paradigm all-purpose forum[]”). Indeed, this court and others
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`routinely transfer cases to the Northern District of California based on Facebook’s forum-selection
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`clause. See, e.g., Loomer, 2020 WL 2926357, at *1; Soffin, 2014 WL 2938347, at *2.
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`3 Mr. Zuckerberg does not waive, and expressly preserves, the right to challenge personal
`jurisdiction in the Southern District of Florida because Plaintiffs’ complaint does not allege facts
`sufficient to confer jurisdiction here. However, transferring the case to the Northern District of
`California will resolve any dispute over personal jurisdiction because Mr. Zuckerberg resides in
`that forum.
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`B.
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`The Public-Interest Factors Do Not Justify Ignoring The Forum-Selection
`Clause.
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`Public-interest factors “will rarely defeat a transfer motion” and “forum-selection clauses
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`should control except in unusual cases.” Atl. Marine, 571 U.S. at 64. Here, the public-interest
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`factors outlined in Atlantic Marine––the risk of “administrative difficulties flowing from court
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`congestion,” “local interest in having localized controversies decided,” and “the interest in having
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`the trial of a diversity case in a forum that is at home with the law”—confirm the Court should
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`transfer this case. Id. at 62–64 & n.6. Plaintiffs have no reasonable basis for concern over
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`“administrative difficulties” or “court congestion” in resolving this case in the Northern District of
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`California. And to the extent “local interest[s]” are at play, this case has greater ties to California,
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`where Facebook is headquartered and where the alleged misconduct purportedly took place.
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`Plaintiffs also have no legitimate basis for seeking resolution in Florida rather than
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`California. Plaintiffs bring primarily federal claims (indeed, their initial complaint alleged only
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`federal claims, see Compl. ¶¶ 146–71), and they purport to represent a nationwide class, Am.
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`Compl. ¶ 246. Both the Southern District of Florida and the Northern District of California are
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`equally capable of applying federal law. See, e.g., Hight v. U.S. Dep’t of Homeland Sec., 391 F.
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`Supp. 3d 1178, 1186 (S.D. Fla. 2019); see also Beckerman v. Heiman, 2006 WL 1663034, at *9
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`(S.D.N.Y. June 16, 2006) (“[F]ederal courts are equally capable of adjudicating” federal claims.).
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`And a federal court in California is equally competent to decide any available Florida law claims.
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`See, e.g., Stokes v. Markel Am. Ins. Co., 2019 WL 8017457, at *5 (S.D. Fla. June 28, 2019) (“[A]
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`district court in either Florida or Delaware is equally capable of applying the relevant law to the
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`dispute.”); Pronto Cash of Fla., Inc. v. Digit. Currency Sys., Inc., 2006 WL 8432522, at *6 (S.D.
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`Fla. Nov. 28, 2006) (“[N]umerous cases containing FDUTPA claims have been transferred outside
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`of Florida in their entirety where the parties to the dispute entered into an agreement containing a
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`Case 1:21-cv-22440-KMW Document 75 Entered on FLSD Docket 09/17/2021 Page 13 of 16
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`forum selection clause.”); SAI Ins. Agency v. Applied Sys., Inc., 858 So. 2d 401, 403–04 (Fla. Dist.
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`Ct. App. 2003) (declining to impose a rule that “as a matter of Florida public policy … a venue
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`clause in a contract may never be enforced in the face of a claim under [F]DUTPA”).
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`Indeed, the public interest in predictability and enforceability of contracts weighs strongly
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`in favor of enforcing the parties’ choice of forum: “enforcement of valid forum-selection clauses,
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`bargained for by the parties, protects their legitimate expectations and furthers vital interests of the
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`justice system.” Atl. Marine, 571 U.S. at 63; accord Song fi, Inc. v. Google Inc., 72 F. Supp. 3d
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`53, 64 (D.D.C. 2014); Miller, 2010 WL 9525523, at *1. The relevant factors all support a transfer
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`to the Northern District of California, and Plaintiffs cannot shoulder the “burden of showing that
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`public-interest factors overwhelmingly disfavor a transfer.” Atl. Marine, 571 U.S. at 67.
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`V.
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`The Court Should Transfer This Entire Case To California, Including As To
`Mr. Zuckerberg.
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`Although he is not a party to the forum-selection clause between Plaintiffs and Facebook,
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`transfer of this case as to Mr. Zuckerberg is also appropriate under 28 U.S.C. § 1404(a) because
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`“convenience and the interest of justice” support a transfer. Osgood v. Disc. Auto Parts, LLC, 981
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`F. Supp. 2d 1259, 1264 (S.D. Fla. 2013). Indeed, many of the cases in which courts grant transfer
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`to the Northern District of California pursuant to Facebook’s forum-selection clause also include
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`Mr. Zuckerberg as a defendant. See, e.g., Loveland, 2021 WL 1734800, at *1; Kidstar, 2020 WL
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`4382279, at *1; Atkinson v. Facebook, Inc., 2020 WL 6151527, at *1 (D. Conn. July 27, 2020);
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`We Are The People, Inc. v. Facebook, Inc., 2020 WL 2908260, at *1 (S.D.N.Y. June 3, 2020);
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`Hayes, 2019 WL 8275335, at *1; see also Miller, 2010 WL 9525523, at *1 (transferring entire
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`case, including non-Facebook defendant). This Court should reach the same outcome for two
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`reasons.
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`Case 1:21-cv-22440-KMW Document 75 Entered on FLSD Docket 09/17/2021 Page 14 of 16
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`First, judicial economy and the interests of justice counsel strongly in favor of transferring
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`this case as a whole. Mr. Zuckerberg is sued here in his capacity as Facebook’s CEO on legal
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`theories identical to those asserted against Facebook itself. All four of Plaintiffs’ causes of action
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`are directed at both Facebook and Mr. Zuckerberg. See, e.g., Am. Compl. ¶¶ 194, 207, 232, 236.
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`And Plaintiffs refer to “Defendants,” collectively, dozens of times throughout the complaint in
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`describing their alleged conduct. See, e.g., id. ¶ 6 (“Defendants indefinitely banned the sitting
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`President of the United States from their platform for exercising his constitutional right of free
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`speech.”); id. ¶ 80 (“By banning the Plaintiff and Putative Class members, Defendants made it
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`more difficult for them directly to communicate with the American public.”). Severing this case
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`as to Mr. Zuckerberg would result in duplicative litigation, and the interests of justice necessitate
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`keeping the case together in California. The analysis of additional public-interest factors set forth
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`above at IV.B confirms this conclusion.
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`Second, transferring this case as a whole to California furthers the convenience of the
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`parties and the witnesses. Mr. Zuckerberg resides in California, Am Compl. ¶ 27, Facebook’s
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`principal place of business is in California, id. ¶ 26, and the bulk of the relevant witnesses and
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`documents are also located in California. Although several of the Plaintiffs reside in Florida, their
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`claims all stem from their use of the Facebook service and Defendants’ decisions, which are
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`centered in California. In short, the Defendants’ alleged conduct that forms the basis for each of
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`Plaintiffs’ claims took place in California, not Florida, and the case should therefore be litigated
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`in California.
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`CONCLUSION
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`For all of the foregoing reasons, Defendants Facebook, Inc. and Mark Zuckerberg
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`respectfully request that the Court grant their motion and transfer this case to the Northern District
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`of California.
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`Case 1:21-cv-22440-KMW Document 75 Entered on FLSD Docket 09/17/2021 Page 15 of 16
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`RULE 7.1(a)(3) CERTIFICATION
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`Counsel certifies that they have conferred with Plaintiffs’ counsel by e-mail in a good-faith
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`effort to resolve the issues raised in this motion and that Plaintiffs’ counsel opposes the relief
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`requested in this motion.
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`Dated: September 17, 2021
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`s/ Maria J. Beguiristain
`Maria J. Beguiristain
`Florida Bar No. 69851
`W. Dylan Fay
`Florida Bar No. 125673
`WHITE & CASE LLP
`200 South Biscayne Boulevard
`Suite 4900
`Miami, Florida 33131
`Telephone: (305) 371-2700
`Facsimile: (305) 358-5744
`Email: mbeguiristain@whitecase.com
`Email: wfay@whitecase.com
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`Craig S. Primis, P.C. (admitted pro hac vice)
`K. Winn Allen, P.C. (admitted pro hac vice)
`Ronald K. Anguas, Jr. (admitted pro hac vice)
`Kate H. Epstein (admitted pro hac vice)
`James Y. Xi (admitted pro hac vice)
`KIRKLAND & ELLIS LLP
`1301 Pennsylvania Avenue, N.W.
`Washington, D.C. 20004
`Telephone: (202) 389-5000
`Facsimile: (202) 389-5200
`craig.primis@kirkland.com
`winn.allen@kirkland.com
`ronald.anguas@kirkland.com
`kate.epstein@kirkland.com
`james.xi@kirkland.com
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`Attorneys for Defendants Facebook, Inc.
`and Mark Zuckerberg
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`Case 1:21-cv-22440-KMW Document 75 Entered on FLSD Docket 09/17/2021 Page 16 of 16
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`CERTIFICATE OF SERVICE
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`I CERTIFY that, on September 17, 2021, I electronically filed the foregoing document
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`with the Clerk of the Court using the Court’s CM/ECF system and that the foregoing document
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`will be served on all counsel of record via transmission of a notice of electronic filing generated
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`by the CM/ECF system.
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`s/ Maria J. Beguiristain
`Maria J. Beguiristain
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