439 F.Supp.3d 683
E.D. Va.2020Background
- Zumper operates an online tenant‑screening service; Ernest Melo (VA resident) created a Zumper account on Aug. 28, 2017, paid $50, and Zumper obtained consumer records from Trade House that allegedly misidentified Melo and caused him to lose a rental.
- Zumper's account‑creation pop‑up stated: "By creating a Zumper Account you indicate your acceptance of our Terms and Conditions and Privacy Policy," with hyperlinked Terms of Use that contained an arbitration clause and an exclusive‑venue clause selecting San Francisco (N.D. Cal.).
- Zumper submitted an affidavit of its CBO (Brian Coyne) and archived screenshots/business records showing Melo clicked "Create Account"; Melo disputed he assented and challenged the affidavit's admissibility.
- Melo sued Zumper and Trade House under the FCRA (§1681e(b) accuracy claims and §1681g disclosure claim, including a putative class for §1681g). Zumper moved to transfer to the N.D. Cal. and to stay pending arbitration; Trade House joined in the stay motion.
- The district court found the Coyne affidavit and business records admissible, concluded Melo had constructive notice and manifested assent (valid electronic contract), held the forum‑selection clause mandatory and enforceable, and transferred the entire action to the Northern District of California; Trade House's joinder to stay arbitration was denied without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Formation of contract / assent to online Terms | Melo: never agreed; did not see arbitration/forum terms | Zumper: pop‑up notice + hyperlinked Terms; Melo clicked "Create Account" manifesting assent | Court: constructive notice existed; Melo manifested assent; valid contract formed |
| Validity of arbitration / forum clauses (alleged conflict) | Melo: clauses conflict (litigate in CA and arbitrate), so contract fails for impossibility | Zumper: clauses are complementary (arbitrate most claims; unarbitrable claims go to CA courts) | Court: clauses co‑exist; no impossibility; clause valid |
| Enforceability of forum‑selection clause / transfer under §1404(a) | Melo: transfer imposes hardship; clause unreasonable | Zumper: clause is mandatory and presumptively enforceable; transfer appropriate | Court: clause is mandatory and enforceable; transferred case to N.D. Cal.; no extraordinary public‑interest factors to deny transfer |
| Admissibility/authentication of Coyne affidavit & screenshots | Melo: affidavit speculative, hearsay, lacks foundation, screenshots unauthenticated | Zumper: Coyne has personal knowledge; records are business records and screenshots authenticated | Court: overruled objections; Coyne's testimony and business records admissible under Rule 56(c)(4) and Fed. R. Evid. 803(6)/901 |
| Scope of clause / severance of Count III (§1681g) | Melo: Count III not covered; should be severed and litigated here | Zumper: all claims arise from the Agreement/Website and fall within clause | Court: transferred entire action under §1404(a) (court may transfer whole action only); did not decide scope; denied Trade House joinder without prejudice |
Key Cases Cited
- Meyer v. Uber Technologies, Inc., 868 F.3d 66 (2d Cir. 2017) (electronic clicks, screenshots, and declarations can show user notice and assent)
- Atlantic Marine Construction Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49 (2013) (parties' forum‑selection clauses ordinarily control §1404(a) transfer analysis)
- M/S Bremen v. Zapata Off‑Shore Co., 407 U.S. 1 (1972) (forum‑selection clause enforceability standard)
- Pee Dee Health Care, P.A. v. Sanford, 509 F.3d 204 (4th Cir. 2007) (forum clause unreasonable only for fraud/overreaching, grave inconvenience, or contravening strong public policy)
- Nader v. Blair, 549 F.3d 953 (4th Cir. 2008) (employees familiar with recordkeeping may authenticate business records)
- Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir. 1984) (opposing affidavits cannot be conclusory to create genuine issue)
- Sanchez Carrera v. EMD Sales, Inc., 402 F. Supp. 3d 128 (D. Md. 2019) (personal‑knowledge based review of business files may support affidavit testimony)