United States District Court, D. Hawaii
ORDER GRANTING MOTION TO TRANSFER VENUE AND DENYING
PLAINTIFF'S MOTION TO STRIKE
Derrick K. Watson United States District Judge.
transparent effort to evade the contractual forum selection
clause that he acknowledges binds him, Brian Evans has
enlisted the aid of his colleague, Mark Biltz, to stand in
his shoes as Plaintiff. According to Biltz, he is
not bound to litigate this action in Santa Clara County,
California because unlike Evans, he did not agree to the
YouTube Terms of Service agreement or Google's
advertising program's terms, and his claims are, in any
event, based on an oral, not written, contract that has no
forum selection provisions. See Biltz Decl.
¶¶ 3-5, Dkt. No. 39-1; Mem. in Opp'n at 2, 8-9,
10, Dkt. No. 39.
evident gamesmanship gets Biltz (and Evans) nowhere. The
gravamen of this action is that Google owes Biltz unpaid
royalties for an internet video entitled, “At Fenway,
” that Biltz produced, Evans starred in, and which
Evans uploaded to Google's YouTube platform in March
2013. There is no dispute that the YouTube Terms of Service
agreement in effect now, and then, requires any claim arising
out of YouTube's services to be brought in Santa Clara
County, California. Whether the agreement's signator was
Evans, Biltz, both, or neither, it matters not. They could
not have availed themselves of YouTube's services without
subjecting themselves to the same terms of service as every
other user. The claims arising out of YouTube's services,
which include all of the claims here, must be brought in
California. See 28 U.S.C. § 1404(a); Atl.
Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of
Tex., 571 U.S. 49, 59-67 (2013). Moreover, even if there
were no applicable forum selection clause, the Court
exercises its discretion pursuant to 28 U.S.C. §§
1404(a) and 1406(a), see King v. Russell, 963 F.2d
1301, 1304 (9th Cir. 1992), and mandates the transfer of this
action to the United States District Court for the Northern
District of California (San Jose Division), in the interests
is the only named plaintiff asserting claims for breach of
contract and fraud in the amended complaint, filed February
22, 2018. FAC, Dkt. No. 7. These claims are based on an
alleged “verbal Agreement” with Google reached on
an unspecified date in 2012 that allowed “exclusive
distribution via [Google's] YouTube platform for the
broadcasting of the music video, ‘At Fenway,
'” which Biltz produced. FAC at 2, Dkt. No. 7.
Under this purported agreement, the artist in the video
(Evans) was to “receive $1 per view” of the video
on YouTube “for two full years.” FAC at 2, Dkt.
No. 7. As of February 2018, “[t]he video has received
more than 11 million views, ” yet Biltz claims that no
royalty payments have been made. FAC at 2, Dkt. No. 7.
alleges that Google “decided not to honor . . . the
original . . . agreement to exclusively broadcast a music
video” in exchange for royalty payments, and instead,
without Biltz's permission, converted that agreement
“into an ‘ad campaign' through its Google
‘AdWords' platform, ” for which Biltz was
fraudulently billed. FAC at 3, Dkt. No. 7. Biltz alleges
further that upon his discovery of what he refers to as
fraud, Google credited the amounts back in an effort to cover
up its misrepresentations in a manner that “put
[Biltz's] former Company, MCS, INC. and potentially
[Biltz] in his individual capacity . . . on the hook for
state and federal taxes that were never supposed to exist,
never were paid, and never were requested by the
Plaintiff.” FAC at 4, 7, Dkt. No. 7 (referencing
invoices that Google allegedly manipulated in 2017 in order
to “defraud” Biltz, its shareholders, and the IRS
by marking the invoices as “PAID, ” causing Biltz
and MCS to be liable for unpaid taxes owed in 2013, and
“in an effort to avoid payment of the original verbal
agreement”). Furthermore, Biltz claims that the unnamed
individual with whom his purported verbal agreement with
Google was entered was “conveniently fired in 2017,
around the same time [Biltz] demanded payment.” FAC at
5, Dkt. No. 7.
April 27, 2018, Google filed a Motion to Transfer Venue to
the Northern District of California pursuant to forum
selection clauses appearing in both a YouTube Terms of
Service contract governing the relationship between
Google's YouTube platform and its users (Altenschmidt
Decl., Ex. A [“YouTube Terms of Service”
(6/9/10)] § 14, Dkt. No. 29-5) and Google's
Advertising Program Terms, which govern Google's
relationship with its advertisers (Cross Decl., Ex. C
[“AdWords Agreement” (4/16/18)] § 14, Dkt.
No. 29-7). Mem. in Supp. of Mot. to Transfer Venue at 2-3,
Dkt. No. 29-1. Biltz initially opposed the Motion to Transfer
in a May 3, 2018 memorandum in which he also moved to strike
that motion. Mot. to Strike, Dkt. No. 33. On May 10, 2018,
Biltz filed a superseding memorandum in opposition
(“Opp'n”), in which he opposed the Motion to
Transfer arguing both that although he temporarily resides in
Washington State (Opp'n at 4, Dkt. No. 39), he is
“a permanent resident of the state of Hawaii”
(Biltz Decl. ¶ 2, Dkt. No. 39-1), and also that as
plaintiff, his selection of Hawaii as the forum is entitled
to “great deference” (Opp'n at 4, Dkt. No.
39) (quoting Schultz v. Hyatt Vacation Mktg. Corp.,
2011 WL 768735, *3 (N.D. Cal. Feb. 28, 2011)) (citing
Hogan v. Malone Lumber, Inc., 800 F.Supp. 1441 (E.D.
reasons set forth below, Google's Motion to Transfer
Venue (Dkt. No. 29) is GRANTED, and Biltz's Motion to
Strike (Dkt. No. 33) is DENIED.
law governs the validity, interpretation, and enforceability
of a forum selection clause. Doe 1 v. AOL LLC, 552
F.3d 1077, 1081, 1083 (9th Cir. 2009) (per curiam) (citing
Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d
509, 513 (9th Cir. 1988)); Argueta v. Banco Mexicano,
S.A., 87 F.3d 320, 324-25 (9th Cir. 1996). To enforce a
mandatory forum selection clause that “clearly
designates a forum as . . . exclusive, ” a litigant may
bring a motion to transfer under 28 U.S.C. §
1404(a). N. Cal. Dist. Council of Laborers v.
Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th
Cir. 1995); Atl. Marine, 571 U.S. at 59.
Section 1404(a) motion to transfer venue ordinarily requires
the court to “evaluate both the convenience of the
parties and various public-interest considerations.”
Atl. Marine, 571 U.S. at 62. “The calculus
changes, however, when the parties' contract contains a
valid forum-selection clause, which ‘represents the
parties' agreement as to the most proper
forum.'” Id. at 63 (quoting Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)).
Where such a clause exists, weight is not given to the
plaintiff's choice of forum, nor are the parties'
private interests considered. Id. at 62 (explaining
that a court should refuse to enforce a forum selection
clause “[o]nly under extraordinary circumstances
unrelated to the convenience of the parties”);
Adema Techs., Inc. v. Wacker Chem. Corp., 657
Fed.Appx. 661, 662 (9th Cir. 2016) (citing Atl.
Marine, supra). Rather, because the
parties' private interests are deemed to “weigh
entirely in favor of the preselected forum, ” the court
“may consider arguments about public-interest factors
only.” Atl. Marine, 571 U.S. at 64.
“[B]ecause [public interest] factors will rarely defeat
a transfer motion, the practical result is that
forum-selection clauses should control except in unusual
to 28 U.S.C. § 1406(a), “[t]he district court of a
district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought.” The
Court has discretion in determining whether to transfer or
dismiss an action for improper venue. See King, 963
F.2d at 1304.
THE MOTION TO STRIKE HAS NO MERIT.
May 3, 2018 filing, Biltz moves to “Strike with
Prejudice” the Motion to Transfer “due to
deceptive tactics of the Defendants, several of which have
still yet to file an appearance in this case.” Mot. to
Strike at 2, Dkt. No. 33. However, Biltz makes no showing of
why he is entitled to the relief he seeks nor does he cite
any authority to support striking Defendants' motion.
Therefore, Biltz's Motion to Strike is DENIED.
MOTION TO TRANSFER-THE YOUTUBE FORUM SELECTION CLAUSE
analysis set forth by a unanimous Supreme Court in
Atlantic MarineConstruction Company, Inc. v.
United States District Court for the WesternDistrict of Texas, et al. “presupposes a
contractually valid forum-selection clause.” 571 U.S.
at 62 n.5; see Doe 1, 552 F.3d at 1083 (“[A]
forum selection clause is presumptively valid.”);
accord Murphy v. Schneider Nat'l Inc., 362 F.3d
1133, 1140 (9th Cir. 2004). In order to defeat Google's
Motion to Transfer (Dkt. No. 29) and overcome this
presumption, Biltz “bears a ‘heavy burden of
proof.'” Murphy, 362 F.3d at 1140 (quoting
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15
(1972)); Atl. Marine, 571 U.S. at 62 (“Only
under extraordinary circumstances unrelated to convenience of
the parties should a § 1404(a) motion be
denied.”). He must show that the forum selection
clauses Defendants rely on (A) are not valid and enforceable,
(B) do not apply to his ...