Case 1:21-cv-22445-KMM Document 64 Entered on FLSD Docket 09/17/2021 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 1:21-cv-22445-MOORE/LOUIS
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`DONALD J. TRUMP et al.,
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` Plaintiffs,
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`vs.
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`YOUTUBE, LLC and SUNDAR PICHAI,
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` Defendants.
`_______________________________________
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`DEFENDANTS’ MOTION TO TRANSFER
`TO THE NORTHERN DISTRICT OF CALIFORNIA
`AND SUPPORTING MEMORANDUM OF LAW
`Defendants YouTube, LLC and Sundar Pichai (collectively, “YouTube”) move under 28
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`U.S.C. § 1404(a) to transfer this case to the Northern District of California.
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`Plaintiffs’ Amended Complaint fails as a matter of law. But before the merits of Plaintiffs’
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`claims can be resolved, the Court must address a threshold problem: Plaintiffs filed suit in the
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`wrong place. In creating accounts to use the YouTube service, Plaintiffs agreed to YouTube’s
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`Terms of Service (“TOS” or “Terms”), which includes an express forum-selection clause requiring
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`litigation in California. The Supreme Court has made clear that “a valid forum-selection clause
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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 the W. Dist. of Tex., 571 U.S. 49, 63 (2013) (citation omitted). A long and
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`unbroken line of cases have held that YouTube’s forum-selection clause is valid and enforceable,
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`and have applied it to transfer cases just like this one to the parties’ designated federal forum—the
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`Northern District of California. See, e.g., Muhammad v. YouTube, LLC, 2019 WL 2338503, at *3
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`(M.D. La. June 3, 2019); Seaman v. YouTube, LLC, No. 3:18-cv-833-HEH, Dkt. 20 at 1 (E.D. Va.
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`Case 1:21-cv-22445-KMM Document 64 Entered on FLSD Docket 09/17/2021 Page 2 of 21
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`Apr. 5, 2019) and No. 4:19-cv-01903-SBA, Dkt. 20 at 1 (N.D. Cal. Apr. 5, 2019); Song fi, Inc. v.
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`Google Inc., 72 F. Supp. 3d 53, 64 (D.D.C. 2014).
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`This case is no different. Plaintiffs complain about the editorial decisions YouTube made
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`about what videos are allowed to appear on its service. They claim that YouTube inconsistently
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`applied the content guidelines incorporated into the TOS and seek an order requiring YouTube to
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`restore their videos to the platform. The governing agreement could hardly be clearer about where
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`such disputes belong: “All claims arising out of or relating to these terms or the [YouTube] Service
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`. . . will be litigated exclusively in the federal or state courts of Santa Clara County, California,
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`USA.” While meritless, Plaintiffs’ claims fall squarely within this mandatory forum-selection
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`clause. Accordingly, Plaintiffs’ “choice of forum merits no weight,” Atl. Marine, 571 U.S. at 63,
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`and this case must be transferred to the Northern District of California. Here, as in “all but the
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`most unusual cases,” “‘the interest of justice’ is served by holding parties to their bargain.” Id. at
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`66 (quoting 28 U.S.C. § 1404(a)).
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`I.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`A.
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`YouTube and Its Terms of Service
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`YouTube is a limited liability company, and is “one of the largest and most popular video
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`distribution platforms on the Internet.” Am. Compl. ¶¶ 2, 27. “[A]n estimated five hundred (500)
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`hours of video content are uploaded to YouTube every minute.” Id. ¶ 2. Plaintiffs allege that in
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`2020, YouTube had “thirty-seven (37) million channels, and 1.3 billion people used YouTube.”
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`Id. ¶ 87. YouTube allows visitors to access and use its service—including by creating channels
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`and uploading videos free of charge—provided they agree and adhere to the TOS. See id. ¶ 32; see
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`also Decl. ¶¶ 2-3 & Ex. A (https://www.youtube.com/static?template=terms (eff. Mar. 17, 2021)).1
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`1 Citations to “Decl.” are to the Declaration of Alexandra N. Veitch, dated September 17, 2021,
`and citations to “Ex. _” are to the exhibits attached thereto.
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`2
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`The TOS govern the relationship between YouTube and its users. Am. Compl. ¶¶ 159-60,
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`174, 182, 189, 194, 206, 212, 220, 222. To keep YouTube and its users safe, the TOS also
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`incorporate “a set of ‘Community Guidelines’” governing “content on the platform, including
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`videos[.]” Id. ¶ 37. YouTube’s Community Guidelines include specific standards prohibiting, for
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`instance, hate speech and the incitement of violence on the platform. See id. ¶¶ 10, 37-41, 45, 139,
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`163, 170. The TOS prohibit users from “submit[ting] to the Service any Content that does not
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`comply with this Agreement (including the YouTube Community Guidelines)[.]” Ex. A at 4. The
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`TOS also expressly give YouTube the right to remove content and suspend or terminate user
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`accounts that YouTube considers contrary to the Community Guidelines or otherwise potentially
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`harmful: “If [YouTube] reasonably believe[s] that any Content is in breach of this Agreement or
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`may cause harm to YouTube, [its] users, or third parties, [YouTube] may remove or take down
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`that Content in our discretion.” Id. at 5; see also id. (“YouTube may suspend or terminate your
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`access, your Google account, or your Google account’s access to all or part of the Service if (a)
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`you materially or repeatedly breach this Agreement; . . . or (c) we believe there has been conduct
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`that creates (or could create) liability or harm to any user, other third party, YouTube or our
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`Affiliates.”).
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`Users are able to post content to their own “channels.” Decl. ¶ 10. In order to create a
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`channel and upload content to YouTube, every user, without exception, is required to accept the
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`TOS. Id. ¶¶ 10-11. For example, in the current version of the sign-up process, when users create a
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`channel, they are presented with the text: “By tapping Create Channel you agree to YouTube’s
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`Terms of Service.” Id. ¶ 10. The phrase “YouTube’s Terms of Service” appears in blue font, and
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`links to the complete text of the TOS. Id. By clicking “Create Channel,” users agree to abide by
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`the TOS. Id. Without accepting the TOS, the user cannot activate the channel. Id.
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`At all times relevant here, the TOS have included an express forum-selection clause
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`designating the courts in Santa Clara County, California as the required venue for litigation arising
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`out of the YouTube Service. Decl. ¶¶ 5-6. This is the version of the provision applicable to all
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`current users (id. ¶¶ 3, 8-9):
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`All claims arising out of or relating to these terms or the Service will be governed
`by California law, except California’s conflict of laws rules, and will be litigated
`exclusively in the federal or state courts of Santa Clara County, California, USA.
`You and YouTube consent to personal jurisdiction in those courts.
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`Ex. A at 7. “Service” is a defined term in the TOS that encompasses “the YouTube platform and
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`the products, services and features we make available to you as part of the platform[.]” Id. at 1.
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`Santa Clara County, California lies within the Northern District of California. See 28 U.S.C.
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`§ 84(a). Because many millions of users create channels and upload videos on YouTube’s website
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`free of charge, the forum-selection clause is necessary to manage the costs of litigation and reduce
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`the inconvenience to YouTube that would arise if the company were forced to litigate claims all
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`over the world. Decl. ¶ 7; accord Song fi, 72 F. Supp. 3d at 64.
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`B.
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`Plaintiffs’ Lawsuit Against YouTube
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`The Plaintiffs in this case are Former President Donald J. Trump and seven other YouTube
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`account holders. Former President Trump and four of the other plaintiffs allegedly reside in Florida
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`(Am. Compl. ¶¶ 16-18, 20, 22, 24-25), one resides in New York (id. ¶ 19), one is domiciled in
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`Colorado (id. ¶ 21), and one is an organization established in the District of Columbia (id. ¶ 23).
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`Plaintiffs also purport to represent a class of YouTube users who were allegedly harmed by
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`YouTube’s content moderation decisions between June 1, 2018 and the present. Id. ¶¶ 1, 302. The
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`putative nationwide class purportedly includes “well over one (1) million Members[.]” Id. ¶ 14.
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`Former President Trump’s claims revolve around “his official YouTube channel,” which
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`he “used . . . to engage with the general public” and for national political purposes. Id. ¶ 48. He
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`Case 1:21-cv-22445-KMM Document 64 Entered on FLSD Docket 09/17/2021 Page 5 of 21
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`alleges that on January 6, 2021, YouTube removed a video he posted about the mob attack on the
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`United States Capitol, because it included false information about the outcome of the 2020 election
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`in violation of YouTube’s Community Guidelines. Id. ¶¶ 163-64; see also id. ¶ 96. On January 12,
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`2021, YouTube removed an additional video from the account and barred users from posting
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`comments on videos on Former President Trump’s channel. Id. ¶¶ 165-66. The next day, YouTube
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`allegedly suspended Former President Trump’s ability to upload new videos for seven days and,
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`on January 26, 2021, extended that suspension indefinitely. Id. ¶¶ 167-69; see also id. ¶ 6. Plaintiffs
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`allege that YouTube took these moderation actions “at the behest of, in cooperation with, and the
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`approval of, Democrat lawmakers” in Congress. Id. ¶ 9. The seven other Plaintiffs assert claims
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`analogous to Former President Trump’s: each posted content that YouTube allegedly took down
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`or otherwise moderated, mostly under the policies incorporated into YouTube’s Community
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`Guidelines against medical or COVID-related misinformation and incitement or glorification of
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`violence. Id. ¶¶ 173-234.
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`Plaintiffs filed this lawsuit against YouTube on July 7, 2021 (Dkt. 1). The original
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`Complaint, on behalf of Former President Trump and two other co-plaintiffs (Dr. Colleen Victory
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`and Austen Fletcher), asserted that YouTube, a private company, violated Plaintiffs’ First
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`Amendment rights by enforcing its content rules to remove or limit the material they were
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`permitted to post on the service. Compl. (Dkt. 1) ¶¶ 126-40. Plaintiffs also sought a declaratory
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`judgment that 47 U.S.C. § 230 (“Section 230”)—a federal statute that protects online services from
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`claims arising from their content moderation choices—is unconstitutional. Id. ¶¶ 141-51.
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`On July 27, 2021, Plaintiffs filed the operative Amended Complaint (Dkt. 21), which
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`carries forward the same First Amendment and declaratory judgment claims, Am. Compl. ¶¶ 235-
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`66, while adding five new plaintiffs and two new causes of action under Florida law. The first new
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`cause of action is a general claim under Florida’s Deceptive and Unfair Trade Practices Act
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`(“FDUTPA”). Id. ¶¶ 267-82. The second is asserted under a recently enacted Florida statute that
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`specifically seeks to restrict the content-moderation judgments of large “social media platforms”
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`(id. ¶¶ 283-301)—a statute that a federal court preliminarily enjoined for violating the First
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`Amendment shortly before its July 1, 2021 effective date. See NetChoice, LLC v. Moody, 2021
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`WL 2690876, at *11-12 (N.D. Fla. June 30, 2021) (Hinkle, J.), appeal docketed, No. 21-12355
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`(11th Cir. July 13, 2021).
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`Each of the Plaintiffs named in the Amended Complaint alleges that they created and
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`maintained a YouTube channel. Am. Compl. ¶¶ 160, 174, 182, 189, 194, 206, 212, 222. Plaintiffs
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`created those channels between 2009 and 2020. Id.; Decl. ¶ 12. In connection with the creation of
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`their channels and/or their uploading videos to those channels, each Plaintiff affirmatively clicked
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`a button indicating their acceptance of and agreement to be bound by the TOS, including the
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`forum-selection clause. Id. The Amended Complaint offers similar allegations for all of the named
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`Plaintiffs, each involving some combination of YouTube’s alleged removal of Plaintiffs’ uploaded
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`videos, restriction of their ability to earn advertising revenue from the videos, and/or suspension
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`of Plaintiffs’ ability to post new content on the service. Am. Compl. ¶¶ 173-234. Plaintiffs claim
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`that these editorial judgments violated the First Amendment on the theory that YouTube was
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`somehow transformed into a state actor by the public statements of various politicians and
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`Democratic members of Congress. Id. ¶¶ 63-77, 236-44. In connection with their state-law claims,
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`Plaintiffs take issue with YouTube’s Community Guidelines, alleging that YouTube did not
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`“consistently” or predictably apply the standards in those Guidelines to Plaintiffs’ videos and other
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`content on its service. Id. ¶¶ 7, 10, 282, 300-01. Plaintiffs seek statutory and punitive damages,
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`along with broad injunctive relief—an order forcing YouTube to “immediately reinstate access of
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`Plaintiff and Putative Class Members to their YouTube accounts,” “to remove its warning labels
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`and misclassification of all content of the Plaintiff and the Class and to desist from any further
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`warnings or classifications,” and to generally refrain from further moderation of Plaintiffs’ content
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`or accounts. Id. Prayer for Relief & ¶ 12.
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`In addition to suing YouTube itself, Plaintiffs have named Sundar Pichai as a defendant.
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`Mr. Pichai is the Chief Executive Officer of Google LLC (“Google”), YouTube’s parent company.
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`Id. ¶¶ 27-28. Plaintiffs purport to sue Mr. Pichai in his personal and individual capacity, though
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`their allegations about him are conclusory and boilerplate, such as that he “is responsible for the
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`acts . . . of YouTube” (id. ¶ 28), “exercises control over and implementation of the content and
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`policy of YouTube” (id. ¶ 47), and “upon information and belief, . . . was personally responsible
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`for YouTube’s de-platforming” of Plaintiffs (id. ¶ 253). It is clear from the Amended Complaint
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`that Plaintiffs’ claims against Mr. Pichai are identical to, and wholly derivative of, their claims
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`against YouTube.2
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`On August 23, 2021 (more than six weeks after his initial complaint was filed), Former
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`President Trump moved for a preliminary injunction, asking this Court to order YouTube, among
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`other things, to immediately “reinstate Plaintiff’s access to his YouTube channel,” lift the ban on
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`“certain uploaded videos,” and “permit Plaintiff’s sale of merchandise on his channel in the normal
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`2 This Court does not have personal jurisdiction over Mr. Pichai. Indeed, it is telling that
`Plaintiffs’ Amended Complaint does not allege personal jurisdiction even in cursory terms (Am.
`Compl. ¶¶ 13-15, 28). This jurisdictional defect would be remedied by a transfer to the Northern
`District of California. See, e.g., Arcadia Health Servs., Inc. v. Martinez, 2015 WL 11348281, at *1
`(S.D. Fla. Jan. 6, 2015) (“[T]ransferring this action to the Northern District of California will likely
`moot any issues of personal jurisdiction, since all Defendants reside in California and allegedly
`committed the wrongful acts there.”); cf. Meterlogic, Inc. v. Copier Sols., Inc., 185 F. Supp. 2d
`1292, 1303 (S.D. Fla. 2002) (“[T]he ‘interest of justice’ is furthered by the transfer of a case in
`which the transferor court lacks jurisdiction over all defendants.”); 28 U.S.C. § 1631 (allowing
`courts to transfer cases to address jurisdictional defects). The Notice of Appearance on behalf of
`Mr. Pichai expressly preserves his right to challenge personal jurisdiction (Dkt. 46 at 1), and he
`preserves the same right here.
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`course[.]” Mot. (Dkt. 43 at 30), Request for Relief. Plaintiffs did so without having served the
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`Amended Complaint on YouTube or Mr. Pichai. Indeed, Plaintiffs made no effort to serve the
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`complaint or notify Defendants about this action (or their motion for a preliminary injunction) until
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`August 27, 2021.
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`Shortly thereafter, YouTube agreed to accept a service waiver under Fed. R. Civ. P. 4(d),
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`which Plaintiffs provided on August 31, 2021. See Notice (Dkt. 53) at 1 n.1. On that same date,
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`counsel for Defendants first appeared in this action (Dkts. 46-52) and fulfilled their duty under
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`Local Rule 3.8 to inform this Court of two similar cases filed by Former President Trump in this
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`District (Dkt. 53, identifying Trump v. Facebook, No. 1:21-cv-22440, and Trump v. Twitter, No.
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`1:21-cv-22441). On September 2, 2021, the Court granted YouTube’s motion to defer setting a
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`briefing schedule on Plaintiff’s preliminary injunction motion until after it rules on this motion to
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`transfer. Dkt. 56. On September 1, 2021, Twitter filed its own motion for transfer to the Northern
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`District of California, which will be fully briefed by October 7, 2021. See Transfer Mot. (Dkt. 41)
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`& Scheduling Order (Dkt. 50), Trump v. Twitter, No. 1:21-cv-22441.
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`II. MEMORANDUM OF LAW
`The Parties Agreed to a Binding Forum-Selection Clause, Which Requires
`A.
`This Case To Be Litigated in the Northern District of California
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`“[A] forum-selection clause may be enforced by a motion to transfer under § 1404(a)[.]”
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`Atl. Marine, 571 U.S. at 52; accord 28 U.S.C. § 1404(a) (permitting transfer “to any district . . . to
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`which all parties have consented”). “When a defendant files such a motion, . . . a district court
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`should transfer the case unless extraordinary circumstances unrelated to the convenience of the
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`parties clearly disfavor a transfer.” Atl. Marine, 571 U.S. at 52; see also id. at 62-63 (“[A] valid
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`forum-selection clause [should be] given controlling weight in all but the most exceptional cases.”)
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`(citation omitted); Turner v. Costa Crociere S.p.A., __ F.4th __, 2021 WL 3673727, at *4 (11th
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`Cir. Aug. 19, 2021) (enforcing forum-selection clause requiring litigation in Genoa, Italy); GDG
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`Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024, 1028 (11th Cir. 2014) (explaining that “an
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`enforceable forum-selection clause carries near-determinative weight”).
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`Because a forum-selection clause “represents the parties’ agreement as to the most proper
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`forum,” the presence of such a clause requires that certain “adjustments” be made to the regular
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`§ 1404(a) analysis. Atl. Marine, 571 U.S. at 62-63 (citation omitted). “These adjustments require
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`a court evaluating a motion to transfer pursuant to a forum-selection clause to afford no weight to
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`either the plaintiff’s selected forum or the parties’ private interests, and to ignore the choice-of-
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`law rules of the original venue.” Hisey v. Qualtek USA, LLC, 753 F. App’x 698, 703 (11th Cir.
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`2018). In such cases, the plaintiff “bear[s] the burden of showing why the court should not transfer
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`the case to the forum to which the parties agreed.” Atl. Marine, 571 U.S. at 64; see also Carnival
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`Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991) (party seeking to avoid a forum-selection
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`clause bears a “heavy burden of proof”) (citation omitted); Turner, 2021 WL 3673727, at *2
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`(same); Lebedinsky v. MSC Cruises, S.A., 789 F. App’x 196, 202 (11th Cir. 2019) (same).
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`Applying these principles, this Court—and other courts in this District—routinely enforce
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`forum-selection clauses. See, e.g., Turner v. Costa Crociere S.p.A., 488 F. Supp. 3d 1240, 1256
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`(S.D. Fla. 2020) (Moore, C.J.), aff’d 2021 WL 3673727 (11th Cir. Aug. 19, 2021); Vanderham v.
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`Brookfield Asset Mgmt., Inc., 102 F. Supp. 3d 1315, 1319-20 (S.D. Fla. 2015) (Moore, C.J.); Fed.
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`Deposit Ins. Corp. v. Nationwide Equities Corp., 2015 WL 7720633, at *2-3 (S.D. Fla. Nov. 30,
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`2015) (Moore, C.J.); Gordon v. Sandals Resorts Int’l, Ltd., 418 F. Supp. 3d 1132, 1141-42 (S.D.
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`Fla. 2019). The same result is required here: Plaintiffs’ claims are governed by a binding forum-
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`selection clause; that provision requires that this litigation proceed in the Northern District of
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`California; and no extraordinary circumstances preclude a transfer to the parties’ designated
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`federal forum.
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`1.
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`The forum-selection clause in YouTube’s TOS governs Plaintiffs’
`claims
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`Plaintiffs are YouTube account holders, and in creating their channels and/or uploading
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`videos, they affirmatively agreed to YouTube’s TOS, including its forum-selection clause. See
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`Decl. ¶¶ 10-12; accord Am. Compl. ¶¶ 159-60, 174, 182, 189, 194, 206, 212, 220, 222. The broad
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`language of that provision readily encompasses Plaintiffs’ claims that YouTube violated federal
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`and state law by removing videos and other content on its service (Am. Compl. ¶¶ 235-54) and
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`allegedly inconsistently applying its Community Guidelines (id. ¶¶ 267-301).
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`The governing forum-selection clause applies to “[a]ll claims arising out of or relating to
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`these terms or the Service[.]” Ex. A at 7. As noted above, the term “Service” is expressly defined
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`as “the YouTube platform and the products, services and features we make available to [users].”
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`Id. at 1. The phrase “arising out of” is interpreted broadly and covers “all causes of action arising
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`directly or indirectly from the business relationship evidenced by the contract.” Stewart Org., Inc.
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`v. Ricoh Corp., 810 F.2d 1066, 1070 (11th Cir. 1987), aff’d, 487 U.S. 22 (1988); accord Diabetic
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`Care Rx, LLC v. Express Scripts, Inc., 2018 WL 4511878, at *2 (S.D. Fla. June 29, 2018) (claims
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`of bad faith and unfair practices covered by a forum-selection agreement applying to “[a]ll
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`litigation between the parties arising out of or related in any way to the interpretation or
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`performance of the Agreement”); Vernon v. Stabach, 2014 WL 1806861, at *4 (S.D. Fla. May 7,
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`2014) (“[W]here the contracts at issue contain a broad forum-selection clause applying to ‘[a]ny
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`suit . . . arising out of or in connection with’ an agreement, federal courts have had no trouble
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`finding statutory and tort claims ‘arising directly or indirectly from the relationship evidenced by
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`the contract’ to fall within the scope of the clause.”) (citations omitted); cf. Slater v. Energy Servs.
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`Grp. Int’l, Inc., 634 F.3d 1326, 1330-31 (11th Cir. 2011) (federal statutory claims fall within the
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`scope of a forum-selection clause covering “all claims arising ‘directly or indirectly’ from the
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`relationship evidenced by the contract”).
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`It is clear from the Amended Complaint that Plaintiffs’ claims fall within the clause’s broad
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`scope. See McCoy v. Sandals Resorts, Ltd., 2019 WL 6130444, at *10 (S.D. Fla. Nov. 19, 2019)
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`(“[W]hen ascertaining the applicability of a contractual provision to particular claims, courts must
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`examine the substance of those claims, shorn of their labels.”) (citation omitted). These claims
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`arise from Plaintiffs’ status as YouTube users and stem from YouTube’s alleged decisions to
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`remove their videos (or other content) from the service or to suspend their channels and thereby
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`block Plaintiffs from posting new content to the service. Am. Compl. ¶¶ 234-301. Such claims
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`indisputably “aris[e] out of or relat[e]” to the YouTube service. Ex. A at 7. Indeed, it is difficult to
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`imagine claims that more directly arise out of the YouTube platform than those challenging its
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`decisions about what content can appear on that platform and the conditions under which material
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`can be posted to it.
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`Plaintiffs also affirmatively allege that their claims arise out of or relate to the Terms
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`themselves. Plaintiffs repeatedly complain that YouTube did not apply its TOS—including the
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`Community Guidelines expressly incorporated in those Terms (see id. ¶¶ 7, 271, 287)—in a
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`consistent or even-handed way. There is no way to evaluate these claims without considering the
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`Terms. See, e.g., Loomer v. Facebook, Inc., 2020 WL 2926357, at *3 (S.D. Fla. Apr. 13, 2020)
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`(holding that claims challenging Facebook’s deactivation of user accounts “arise[] out of or relate[]
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`to” Facebook’s Terms of Service); Oribe Hair Care, LLC v. Canales, 2017 WL 2059582, at *1
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`(S.D. Fla. May 15, 2017) (holding that claims are covered by forum-selection clause that applied
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`to “any controversy or claim arising out of or relating to this Agreement” where they would require
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`a court to interpret the agreement).
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`It is not surprising, therefore, that an unbroken line of decisions has held that claims just
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`like those Plaintiffs make here—which challenge YouTube’s content-moderation actions,
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`including removing videos and suspending accounts—fall squarely within the forum-selection
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`clause in YouTube’s TOS. See Seaman, 3:18-CV-833-HEH, Dkt. 20 at 1 (applying forum-
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`selection clause to claims based on suspension of YouTube account “for violation of policies
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`governing video content uploaded to YouTube’s website” and transferring case to Northern
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`District of California); Kifle v. YouTube LLC, No. 1:21-cv-00238-JPB, Dkt. 24 (N.D. Ga. Mar. 12,
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`2021) and No. 3:21-cv-01752-CRB, Dkt. 24 (N.D. Cal. Mar. 12, 2021) (same, for claims based on
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`YouTube’s termination of plaintiff’s YouTube channel for Community Guidelines violations);
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`Lewis v. Google, Inc., 2019 WL 10749715, at *3 (D. Colo. Dec. 31, 2019) (same); Ramani v.
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`YouTube LLC, 2019 U.S. Dist. LEXIS 162086, at *5 (S.D.N.Y. Sept. 20, 2019) (same);
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`Muhammad, 2019 WL 2338503, at *4 (same); Song fi, 72 F. Supp. 3d at 64 (same, for claims
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`based on removal of YouTube video and resetting of video view count).
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`2.
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`YouTube’s Forum-Selection Clause Is Mandatory and Enforceable
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`Forum-selection clauses are “presumptively valid and enforceable” absent a “strong
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`showing” that “enforcement would be unfair or unreasonable under the circumstances.” Krenkel
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`v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009) (per curiam); see also Turner,
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`2021 WL 3673727, at *2 (same). Courts have consistently held forum-selection clauses in
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`standard-form online agreements—like the YouTube TOS that Plaintiffs expressly accepted (Decl.
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`¶ 12)—to be “valid and enforceable.” Segal v. Amazon.com, Inc., 763 F. Supp. 2d 1367, 1369 (S.D.
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`Fla. 2011) (enforcing forum-selection clause in terms accepted by plaintiffs as a condition of
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`Case 1:21-cv-22445-KMM Document 64 Entered on FLSD Docket 09/17/2021 Page 13 of 21
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`creating Amazon account); accord Loomer, 2020 WL 2926357, at *3 (same for Facebook’s Terms
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`of Service); Davis v. Avvo, Inc., 2011 WL 4063282, at *2-3 (M.D. Fla. Sept. 13, 2011) (enforcing
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`forum-selection clause included in click-wrap Terms of Use agreement); cf. Laine v. JetSmarter,
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`Inc., 2019 WL 1900339, at *2 (S.D. Fla. Apr. 29, 2019) (enforcing arbitration clause found in a
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`“click-wrap agreement”); Temple v. Best Rate Holdings LLC, 360 F. Supp. 3d 1289, 1304-05
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`(M.D. Fla. 2018) (enforcing arbitration clause found in website Terms and Conditions where user
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`was cautioned that he accepted the terms by clicking a button labeled “Get a Quote”).
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`YouTube’s forum-selection clause, in particular, has repeatedly been applied. Indeed,
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`every federal court that has considered a transfer motion based on YouTube’s TOS has enforced
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`the clause, finding no procedural or substantive issues with its requirement that litigation relating
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`to YouTube’s service or TOS proceed in the Northern District of California. See, e.g., Song fi, 72
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`F. Supp. 3d at 62-64 (“[I]t is not improper for YouTube to require that claims against it be brought
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`in the non-arbitrary forum where it resides.”); accord Kifle, No. 1:21-cv-00238-JPB, Dkt. 24 at 8
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`(transferring case brought by YouTube user despite Plaintiff “point[ing] to evidence that California
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`will be a less convenient forum for him”); Lewis, 2019 WL 10749715, at *3 (“Plaintiff has failed
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`to cast any doubt on the validity of the Forum Selection Clause, and so the Atlantic Marine analysis
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`applies here.”); Ramani v. YouTube LLC, 2019 U.S. Dist. LEXIS 197106, at *4 (S.D.N.Y. Nov.
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`12, 2019) (“The Court concludes that YouTube’s forum selection clause controls and transfers the
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`action to the United States District Court for the Northern District of California.”); Ramani, 2019
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`U.S. Dist. LEXIS 162086, at *5 (same); Muhammad, 2019 WL 2338503, at *2 (finding “no
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`evidence or jurisprudence to show that the forum-selection clause was induced by fraud or
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`overreaching”); Seaman, No. 3:18-CV-833-HEH, Dkt. 20 at 6 (finding no oppression or surprise);
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`Biltz v. Google, Inc., 2018 112632WL 3340567, at *5-6 (D. Haw. July 6, 2018) (finding no fraud
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`Case 1:21-cv-22445-KMM Document 64 Entered on FLSD Docket 09/17/2021 Page 14 of 21
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`or overreaching); Kijimoto v. YouTube, LLC, 2018 WL 5116415, at *3-4 (C.D. Cal. Jan. 30, 2018)
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`(holding that “the forum-selection clause of the TOS is controlling”); Bowen v. YouTube, Inc.,
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`2008 WL 1757578, at *2 (W.D. Wash. Apr. 15, 2008) (“The Court concludes that the forum
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`selection clause herein is valid [and] enforceable.”).3
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`The forum-selection provision is also mandatory. It states that covered claims “will be
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`litigated exclusively in the federal or state courts of Santa Clara County, California[.]” Ex. A at 7
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`(emphasis added); see, e.g., Bowen, 2008 WL 1757578, at *2 (explaining that YouTube’s clause
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`is “cast in mandatory terms”); accord Emerald Grande, Inc. v. Junkin, 334 F. App’x 973, 976
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`(11th Cir. 2009) (clause declaring that Okaloosa Courts “will be the venue for any dispute” was
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`mandatory) (emphasis added); DeLima v. Google, Inc., 2021 WL 294560, at *9 (D.N.H. Jan. 28,
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`2021) (“Any future claim arising out of the AdSense or similar agreement for Google-owned
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`services, however, must be brought in the Northern District of California as a result of the
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`presumptively enforceable and mandatory forum selection clause in that agreement and Google
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`and YouTube’s general terms of service.”), appeal docketed, No. 21-1161 (1st Cir. Feb. 26, 2021).
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`In short, under the clear terms of the governing agreement, the parties agreed to a binding
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`requirement to resolve these claims in a different forum. By filing this case in this Court, Plaintiffs
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`disregarded that agreement, and a transfer to the Northern District of California is required.
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`3 It is not just YouTube. Courts routinely enforce similar forum-selection clauses to transfer
`similar cases against other online service providers, including where plaintiffs seek to hold services
`liable under the First Amendment or under state consumer-protection laws. See Perez v. LinkedIn
`Corp., 2020 WL 5997196, at *1 (S.D. Tex. Oct. 9, 2020) (enforcing forum-selection clause in
`LinkedIn’s TOS to hold that, if plaintiff refiles his dismissed First Amendment claims, they will
`be transferred to N.D. Cal.); Atkinson v. Facebook, Inc., 2020 WL 6151527, at *1 (D. Conn. July
`27, 2020) (enforcing forum-selection clause to transfer a case including a First Amendment claim
`and claim under Connecticut Unfair Trade Practices Act); Brittain v. Twitter Inc., 2019 WL
`110967, at *3 (D. Ariz. Jan. 4, 2019) (transferring First Amendment claim against Twitter); Abid
`v. Google, Inc., 2017 WL 11048805, at *1 (M.D.N.C. Oct. 12, 2017), report & recommendation
`adopted, 2018 WL 8059093 (M.D.N.C. Feb. 13, 2018) (transferring First Amendment claim
`against Google based on suspension of AdWords account).
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`Case 1:21-cv-22445-KMM Document 64 Entered on FLSD Docket 09/17/2021 Page 15 of 21
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`B.
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`Plaintiffs Cannot Carry The Heavy Burden Necessary to Overcome the
`Forum-Selection Clause
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`Because this case involves a valid forum-selection clause, in considering YouTube’s
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`§ 1404(a) motion, the Court “should not consider arguments about the parties’ private interests.
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`When parties agree to a forum-selection clause, they waive the right to challenge the preselected
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`forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of
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`the litigation. A court accordingly must deem the private-interest factors to weigh entirely in favor
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`of the preselected forum.” A