Case 1:19-cv-08871-JMF Document 24 Filed 06/03/20 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`WE ARE THE PEOPLE, INC. and JACOB MILTON,
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`FACEBOOK, INC. MARK ZUCKERBERG, and
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`SHERYL SANDBERG,
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`Plaintiffs,
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`Defendant.
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`19-CV-8871 (JMF)
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`MEMORANDUM OPINION
`AND ORDER
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`JESSE M. FURMAN, United States District Judge:
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`This action arises out of claims by Plaintiffs We Are the People, Inc. and Jacob Milton,
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`Bangladeshi Muslim human rights activists, against Facebook, Inc. (“Facebook”) and two of its
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`officers. Specifically, in their Amended Complaint filed on November 4, 2019, Plaintiffs assert
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`that Facebook’s alleged removal of content from Plaintiff’s Facebook pages violated
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`Defendants’ contractual and quasi-contractual obligations to keep Plaintiffs’ content posted
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`indefinitely. ECF No. 13 (“Am. Compl.”). Defendants move to dismiss all of Plaintiffs’ claims
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`on the ground that they are, among other things, barred by the Communications Decency Act
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`(“CDA”). See ECF Nos. 14 (“Mot.”) & 15 (“Defs.’ Mem.”). In the alternative, they move to
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`transfer venue to the Northern District of California on the basis of a forum selection clause in
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`Facebook’s Terms of Use. Defs.’ Mem. 1-2; see ECF No. 14-1 (“Wong Decl.”), ¶¶ 4-7.
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`Substantially for the reasons set forth in Defendants’ memoranda of law, the Court grants
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`Defendants’ motion to transfer — and denies the motion to dismiss without prejudice to renewal
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`following the transfer. To start, forum selection clauses “are prima facie valid and should be
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`Case 1:19-cv-08871-JMF Document 24 Filed 06/03/20 Page 2 of 4
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`enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the
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`circumstances.” Sunrise Medical HHG, Inc. v. Health Focus of N.Y., 278 F. App’x 80, 81(2d
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`Cir. 2008) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)); see also Atl.
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`Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49 (2013). More
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`specifically, whether to enforce a forum selection clause turns on a four-part test:
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`The party moving for dismissal must demonstrate that: (1) the clause was
`reasonably communicated to the party resisting enforcement; (2) the clause was
`mandatory and not merely permissive; and (3) the claims and parties involved in
`the suit are subject to the forum selection clause. If these requirements are met,
`the burden shifts to the nonmoving party to rebut the presumption of
`enforceability by making a sufficiently strong showing that enforcement would be
`unreasonable or unjust, or that the clause was invalid for such reasons as fraud or
`overreaching.
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`Martinez v. Bloomberg LP, 883 F. Supp. 2d 511, 516 (S.D.N.Y. 2012), aff’d, 740 F.3d 211 (2d
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`Cir. 2014) (internal quotation marks and citations omitted).
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`Applying that test here, transfer is warranted, if not compelled. As relevant here,
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`Facebook’s “terms of use” — which the Court may consider in connection with Defendants’
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`motion to transfer venue, see Everlast World’s Boxing Headquarters Corp. v. Ringside, Inc., 928
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`F. Supp. 2d 735, 737 n.1 (S.D.N.Y. 2013); see also Fisher v. eBay, Inc., No. 3:17-CV-0008
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`(DJS), 2017 WL 9565759, at *1 (D. Conn. July 26, 2017) — provided as follows:
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`You [the user] will resolve any claim, cause of action or dispute (claim) you have
`with us arising out of or relating to this Statement or Facebook exclusively in the
`U.S. District Court for the Northern District of California or a state court located in
`San Mateo County, and you agree to submit to the personal jurisdiction of such
`courts for the purpose of litigating all such claims. The laws of the State of
`California will govern this Statement, as well as any claim that might arise between
`you and us, without regard to conflict of law provisions.
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`Wong Decl. ¶ 3 & Ex. A at 7; see also id. Ex. B at 4, Ex. C at 3 & Ex. D at 6. According to
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`Defendants, “[e]very person who registers for, uses, and continues to use a Facebook account
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`must agree to Facebook’s terms of use a condition of using Facebook’s services.” Wong Decl.
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`Case 1:19-cv-08871-JMF Document 24 Filed 06/03/20 Page 3 of 4
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`¶ 3. Notably, Plaintiffs do not argue otherwise in their opposition, see ECF No. 22 (“Pls.’
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`Opp’n”), at 16-21, and they themselves allege in their Complaint that, at all relevant times, they
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`“were in full compliance with all standards, rules, and regulations of the Defendants,” Am.
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`Compl. ¶¶ 9, 21. That is more than sufficient to establish that Plaintiffs “assented to the Terms
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`of Use and therefore to the forum selection clause therein.” Fteja v. Facebook, Inc., 841 F.
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`Supp. 2d 829, 839-41 (S.D.N.Y. 2012); accord In re Facebook Biometric Privacy Litig., 185 F.
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`Supp. 3d 1155, 1163-67 (N.D. Cal. 2016); Facebook, Inc. v. Power Ventures, Inc., No. C 08-
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`5780 (JW), 2010 WL 3291750, at *7 n.20 (N.D. Cal. July 20, 2010). Next, the clause is plainly
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`mandatory, not permissive, given that it states that a user “will resolve” any claim with Facebook
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`“exclusively” in the Northern District of California (or a state court located in San Mateo
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`County), and it covers Plaintiffs’ claims, which indisputably “relat[e] to . . . Facebook.”
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`In light of the foregoing, it is Plaintiffs’ burden “to rebut the presumption” that
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`the forum selection clause is enforceable “by making a sufficiently strong showing that
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`enforcement would be unreasonable or unjust, or that the clause was invalid for such
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`reasons as fraud or overreaching.” Martinez, 883 F. Supp. 2d at 516. They could do that
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`by showing that “(1) [the clause’s] incorporation was the result of fraud or overreaching;
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`(2) the law to be applied in the selected forum is fundamentally unfair; (3) enforcement
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`contravenes a strong public policy of the forum in which suit is brought; or (4) trial in the
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`selected forum will be so difficult and inconvenient that the plaintiff effectively will be
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`deprived of his day in court.” Martinez, 740 F.3d at 228 (internal quotation marks
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`omitted)). They do not even attempt to make such a showing. Nor could they, for the
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`reasons set forth in Defendants’ memorandum of law. See Defs.’ Mem. 22-23. That is,
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`the Court agrees with Defendants that the public interest factors tip in favor of enforcing
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`Case 1:19-cv-08871-JMF Document 24 Filed 06/03/20 Page 4 of 4
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`the parties’ agreement and transferring the case to their agreed-upon venue. See id.; see
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`also Atl. Marine Const. Co., 571 U.S. at 60 (“[A] proper application of § 1404(a) requires
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`that a forum-selection clause be given controlling weight in all but the most exceptional
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`cases.” (internal quotation marks and citation omitted)).
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`Accordingly, Defendants’ motion to transfer is GRANTED and their motion to dismiss is
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`DENIED without prejudice to renewal following transfer. The Clerk of Court is directed to
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`terminate ECF No. 14, to transfer this action to the United States District Court for the Northern
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`District of California, and to close the case on this Court’s docket.
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`SO ORDERED.
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`Dated: June 3, 2020
`New York, New York
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` __________________________________
` JESSE M. FURMAN
` United States District Judge
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