United States District Court, D. Hawaii
MARK D. DOLIN, Plaintiff,
FACEBOOK, INC., Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO TRANSFER
VENUE PURSUANT TO 28 U.S.C. § 1404(A), ECF NO.
Michael Seabright Chief United States District Judge.
the court is Defendant Facebook, Inc.'s
(“Facebook” or “Defendant”)
“Motion to Transfer Venue Pursuant to 28 U.S.C. §
1404(a) and/or Motion to Dismiss Pursuant to Rule
12(b)(6).” ECF No. 9. For the reasons discussed below,
the Motion is GRANTED, and the Clerk of Court is directed to
transfer this action to the United States District Court for
the Northern District of California.
Third Amended Complaint (“TAC”), alleges the
following. Pro se Plaintiff Mark D. Dolin
(“Plaintiff”) registered the domain name
“www.shopfacebook.com” on April 12, 2015, and
then created thousands of unique “Pages” on
Facebook that he incorporated into his development of a
larger shopping platform. TAC ¶¶ 1, 9, 16, 18, ECF
No. 1-2. Beginning on August 7, 2015, Defendant
“encouraged Plaintiff's work” through phone
conversations and email communications and confirmed that
Plaintiff's shopping platform complied with Facebook
policies. Id. ¶¶ 9-10, 17, 21. Since May
29, 2015, Defendant has received profits of $2, 097.04 from
Plaintiff's shopping platform. Id. ¶ 11.
October 3, 2016, Defendant released its own shopping platform
titled “Marketplace.” Id. ¶ 12. And
on November 2, 2016, Defendant released “Instagram
Shopping.” Id. ¶ 13. Prior to
Defendant's release of these products, Defendant never
objected to Plaintiff's use of the
“www.shopfacebook.com” domain name. Id.
¶¶ 12-13, 21.
November and December 2016, Plaintiff received letters from
Defendant threatening a lawsuit if Plaintiff did not
“cease and decist” (sic) from using the
“www.shopfacebook.com” domain. Id.
¶¶ 2, 4. Plaintiff attempted to contact Defendant
repeatedly in order to resolve this issue, but Defendant
failed to respond. Id. ¶¶ 3, 5-7. As of
November 3, 2016, Defendant withdrew “tech
support” for all of Plaintiff's “Pages”
and began “altering the layout design by removing all
pictures, ” thereby “making Plaintiff's
shopping platform less desirable, less appealing and harder
to navigate.” Id. ¶¶ 15-16.
plan for his shopping platform and specific information about
how it would work were “detailed in his application for
patent” and in emails Plaintiff sent to Facebook
officials prior to the release of Facebook's Marketplace
and Instagram Shopping platforms. Id. ¶ 32.
Plaintiff's ideas were allegedly incorporated in both of
Facebook's shopping platforms. Id. Thus, the TAC
alleges that Facebook “used . . . Plaintiff as beta
testing to benefit [its] own product releases.”
Id. ¶ 29; accord Id. ¶ 34. The
TAC asserts claims for “negligent interference, ”
fraud, and “tortious interference, ” and seeks
damages of $10 billion. Id. at 13-14.
now moves to transfer this action to the United States
District Court for the Northern District of California based
on a forum-selection clause. As set forth in Defendant's
Memorandum in Support of its Motion, from April 2015 to the
present, users creating a “Page” on
Facebook's website or mobile application were presented
with a message stating “By clicking Get Started, you
agree to the Facebook Pages Terms.” Def.'s Mem. at
5-6, ECF No. 9-1; Decl. of Michael Duffey ¶¶ 3-5,
ECF No. 9-2; Def.'s Exs. A, B, ECF Nos. 9-3, 9-4. In
order to create a “Page, ” a user was required to
click the “Get Started” button. Duffey Decl.
¶ 5. “On both platforms, the phrase
‘Facebook Pages Terms' was highlighted and
hyperlinked to a webpage that posted the Pages Terms in their
entirety.” Id. ¶ 6.
Facebook Pages Terms in effect from April 2015 through the
known as the “Statement of Rights and
Responsibilities” (“SRR”). Def.'s Mem.
at 7; Duffey Decl. ¶ 7, Def.'s Exs. C-F, ECF Nos.
9-4 to 9-8. The term “Statement of Rights and
Responsibilities” in the first paragraph of the
Facebook Pages Terms is highlighted and hyperlinked to a
webpage that contains a copy of the SRR. Duffey Decl. ¶
7; Def.'s Exs. C-F. The SRR provides in part:
This Statement of Rights and Responsibilities . . . is our
terms of service that governs our relationship with users and
others who interact with Facebook, as well as Facebook
brands, products, and services, which we call the
“Facebook Services” or
“Services”. By using or accessing the
Facebook Services, you agree to this Statement . . . .
Def.'s Ex. G at 1, ECF No. 9-9. And under the section
titled “Disputes, ” the SRR includes the
following forum-selection clause:
You 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.
Id. at 4.
filed a Complaint and Amended Complaint against Defendant in
the State of Hawaii Circuit Court of the Second Circuit on
September 18 and 20, 2017, respectively. ECF Nos. 1-4, 1-5.
The Amended Complaint was served on September 25, 2017.
See Decl. of Michael P. Duffey ¶ 3, ECF No.
1-1. Thereafter, Plaintiff filed both a Second Amended
Complaint and the TAC. ECF Nos. 1-2 to 1-3. On October 25,
2017, Defendant filed a timely Notice of Removal to this
court. ECF No. 1.
filed the instant Motion to Transfer Venue and/or Dismiss on
November 13, 2017. ECF No. 9. Plaintiff filed an Opposition
on December 21, 2017, and numerous exhibits on December 29,
2017. ECF Nos. 24, 28. Defendant filed a Reply ...