Zaltz v. JDATE
952 F. Supp. 2d 439
| E.D.N.Y | 2013Background
- Pro se plaintiff Lisa Zaltz sued Sparks Networks (operator of JDate.com) alleging unauthorized recurring billing, ineffective customer service, removal from the site, prank/sexual phone calls, hacking, and an on‑date sexual assault.
- Defendant moved under Rule 12(b)(3) to dismiss for improper venue or, alternatively, to transfer under 28 U.S.C. § 1404(a) to the Central District of California.
- Sparks relied on a mandatory forum‑selection clause in JDate’s Terms of Service requiring disputes to be litigated in Los Angeles, California, and submitted declaration and website screenshots showing users must check a box and click to accept terms at sign‑up and on renewal.
- Zaltz submitted a one‑page pro se opposition denying recall of the terms and asserting she did not agree to California jurisdiction; she submitted no contradictory evidence.
- The Court concluded the online acceptance process (hyperclinked terms, checkbox, and “Accept and Continue” button) reasonably communicated the Terms and that the forum‑selection clause was mandatory, applicable, and not unreasonable.
- Exercising its discretion under § 1404(a), the Court denied dismissal but granted transfer to the Central District of California, finding the clause and other § 1404(a) factors (locus of operative facts, witnesses, documents, parties’ convenience) favored transfer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of forum‑selection clause | Zaltz says she does not recall or believe she agreed to terms requiring litigation in California | JDate shows users had to check a box and click to accept hyperlinked Terms of Service (including the Los Angeles clause) at sign‑up and on renewal | Clause was reasonably communicated, mandatory, applies to claims, and is enforceable |
| Whether enforcement is unreasonable or invalid | Zaltz contends (conclusorily) she did not agree; alleges inconvenience | Sparks argues no fraud/overreaching, no showing of grave inconvenience, and California law does not deprive remedy | Zaltz failed to meet heavy burden to show clause unreasonable or invalid; enforcement appropriate |
| Remedy for forum‑selection clause violation: dismissal vs. transfer | Prefers case heard in NY but would accept venue change | Moves to dismiss or alternatively transfer under § 1404(a); prefers dismissal but seeks transfer in the alternative | Court declines dismissal (practicality: likely re‑file, statute‑of‑limitations concerns) and transfers under § 1404(a) in the interest of justice |
| § 1404(a) transfer factors (locus, witnesses, documents, convenience) | As New York resident, plaintiff filed here; asserts preference for NY forum | Sparks: principal place of business, employees, documents, and operative acts are in California; forum clause significant | Balancing factors (forum clause, locus of operative facts in California, witnesses/docs, party convenience) favor transfer to Central District of California |
Key Cases Cited
- M/S Bremen v. Zapata Off‑Shore Co., 407 U.S. 1 (U.S. 1972) (forum‑selection clauses are prima facie valid; enforceable absent strong showing of unreasonableness)
- Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (U.S. 1991) (forum‑selection clauses in form contracts can bind consumers)
- Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002) (clicking does not show assent if terms are not reasonably communicated)
- Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) (three‑part test: reasonably communicated, mandatory, and applicable; presumption of enforceability)
- TradeComet.com LLC v. Google, Inc., 647 F.3d 472 (2d Cir. 2011) (forum clause enforcement appropriate basis for Rule 12(b)(3) motion)
- Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 (S.D.N.Y. 2012) (hybrid click/browsewrap where link and assent button sufficiently communicated terms; analogous to turning over a ticket)
- Roby v. Corp. of Lloyd’s, 996 F.2d 1353 (2d Cir. 1993) (factors rendering clause unreasonable include fraud, grave inconvenience, or contravention of public policy)