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Dolin v. Facebook, Inc.

United States District Court, D. Hawaii

February 6, 2018

MARK D. DOLIN, Plaintiff,
v.
FACEBOOK, INC., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(A), ECF NO. 9

          J. Michael Seabright Chief United States District Judge.

         I. INTRODUCTION

         Before 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.

         II. BACKGROUND

         A. Factual Background

         The 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.

         On 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.

         In 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.

         Plaintiff's 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.

         Defendant 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.

         The Facebook Pages Terms in effect from April 2015 through the present incorporate Facebook's general terms of use, 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.

         B. Procedural Background

         Plaintiff 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.

         Defendant 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 ...


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