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Biltz v. Google, Inc.

United States District Court, D. Hawaii

July 6, 2018



          Derrick K. Watson United States District Judge.


         In a 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.

         The 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 of justice.


         Biltz 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.

         Biltz 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”).[1] 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.

         On 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. Tex. 1992)).[2]

         For the 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.


         Federal 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).[3] 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.

         A 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 cases.” Id.

         Pursuant 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.



         In his 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.


         The 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 ...

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