United States District Court, S.D. Florida
JAMIL HINDI, individually and on behalf of all others similarly situated, Plaintiff,
BIRDEYE, INC., Defendant.
BLOOM, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant BirdEye,
Inc.'s Motion to Dismiss First Amended Complaint and/or
to Stay Action, ECF No.  (“Motion to
Dismiss”), and Defendant's Motion to Stay Discovery
and/or for Protective Order Pending Ruling on Motion to
Dismiss, ECF No.  (“Motion to Stay
Discovery”), (collectively, the “Motions”).
Plaintiff Jamil Hindi filed responses to both Motions, ECF
Nos. , , to which Defendant replied, ECF Nos. ,
. The Court has reviewed the Motions, all supporting and
opposing submissions, the record and applicable law, and is
otherwise fully advised. For the reasons set forth below,
Defendant's Motion to Dismiss is granted in part and
denied in part. The Clerk is directed to transfer this case
to the United States District Court for the Northern District
of California. Defendant's Motion to Stay Discovery is
denied as moot.
17, 2019, Plaintiff filed a First Amended Class Action
Complaint (“Amended Complaint”) against Defendant
for a violation of the Telephone Consumer Protection Act, 47
U.S.C. § 227 et seq., (“TCPA”). ECF
provides software for reviews, webchats, and surveys to
businesses. Id. ¶ 2. According to
Plaintiff's Amended Complaint, on or about April 18,
2019, Defendant sent an automated text message to
Plaintiff's cellular telephone number stating,
“BirdEye Msg: Refer a friend, both get $200. The more
friends you refer, the more money you make.”
Id. ¶ 28. The text message also contained a
link to Defendant's website. Id. ¶ 31.
Plaintiff alleges that he did not provide Defendant with his
express written consent to receive telemarketing text
messages. Id. ¶ 34. Moreover, Plaintiff
contends that the number used in sending the text message
“is known as a ‘long code,' a standard
10-digit phone number that enabled Defendant to send SMS text
messages en masse, while deceiving recipients into believing
that the message was personalized and sent from a telephone
number operated by an individual.” Id. ¶
36. “[O]n information and belief, Defendant sent the
same text message complained of by Plaintiff to other
individuals within this judicial district.”
Id. ¶ 33. Plaintiff therefore brings this
putative class action on behalf of the class of “[a]ll
persons within the United States who, within the four years
prior to the filing of this Complaint, were sent a text
message using the same type of equipment used to text message
Plaintiff, from Defendant or anyone on Defendant's
behalf, to said person's cellular telephone
number.” Id. ¶ 52.
31, 2019, Defendant filed its Motion to Stay Discovery
pending this Court's resolution of its Motion to Dismiss.
ECF No. . On the same day, Defendant also filed its
Motion to Dismiss for lack of personal jurisdiction. ECF No.
. Defendant contends that personal jurisdiction is
lacking as it is a Delaware corporation with its principal
place of business. Moreover, it argues that, pursuant to a
valid forum-selection clause entered into by the parties,
this action should be dismissed or, alternatively,
transferred to the agreed-upon forum. Id. at 4-5.
Specifically, the Defendant argues that Plaintiff entered
into a contract with Defendant where Defendant agreed to
provide certain services for Plaintiff's business
website. Id. at 1; ECF No. [19-1] at 2. In doing so,
Plaintiff signed a customer agreement with Defendant agreeing
to Defendant's terms and conditions, including a
forum-selection clause. ECF No. [19-1] at 1-2. Because the
Court concludes that transfer is appropriate under 28 U.S.C.
§ 1404(a), it need not address the other arguments
raised by the Defendant.
1404(a) of Title 28 of the United States Code provides in
relevant part, “[f]or the convenience of parties and
witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division
where it might have been brought.” 28 U.S.C. §
1404(a). “[T]he appropriate way to enforce a
forum-selection clause pointing to a state or foreign forum
is through the doctrine of forum non
conveniens.” Atl. Marine Constr. Co. v. U.S.
Dist. Court for W. Dist. of Tex., 571 U.S. 49, 60
(2013). As the United States Supreme Court explained, 28
U.S.C. § 1404(a) “is merely a codification of the
doctrine of forum non conveniens for the subset of
cases in which the transferee forum is within the federal
court system; in such cases, Congress has replaced the
traditional remedy of outright dismissal with
transfer.” Id. In addition, the Supreme Court
has held that the existence of a forum-selection clause is
essentially dispositive in the § 1404(a) or forum
non conveniens analysis. See Id. at 62; see
also GDG Acquisitions, LLC v. Gov't of Belize, 749
F.3d 1024, 1028 (11th Cir. 2014) (“an enforceable
forum-selection clause carries near-determinative
weight” in the forum non conveniens analysis).
“When the parties have agreed to a valid
forum-selection clause, a district court should ordinarily
transfer the case to the forum specified in that clause. Only
under extraordinary circumstances unrelated to the
convenience of the parties should a § 1404(a) motion be
denied.” Atl. Marine Constr. Co., 571 U.S. at
Supreme Court's determination that “a valid
forum-selection clause [should be] given controlling weight
in all but the most exceptional cases, ” Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988)
(Kennedy, J., concurring), stems, in part, from the
recognition that these clauses represent the parties'
ab initio agreement as to the most proper forum.
Stewart Org., Inc., 487 U.S. at 31; Atl. Marine
Constr. Co., 571 U.S. at 62 (“When parties agree
to a forum-selection clause, they waive the right to
challenge a preselected forum as inconvenient or less
convenient for themselves or their witnesses, or for their
pursuit of the litigation.”); M/S Bremen v. Zapata
OffShore Co., 407 U.S. 1, 16-17 (1972) (“[W]here
it can be said with reasonable assurance that at the time
they entered the contract, the parties to a freely negotiated
private commercial agreement contemplated the claimed
inconvenience, it is difficult to see why any such claim of
inconvenience should be heard to render the forum clause
unenforceable.”). Once established, the existence of a
valid forum-selection clause governing the claims at issue
shifts the burden from the party seeking dismissal to the
non-movant to establish that dismissal is improper. See
Atl. Marine Constr. Co., 571 U.S. at 63; Stiles v.
Bankers Healthcare Grp., Inc., 637 Fed.Appx. 556, 562
(11th Cir. 2016); Pappas v. Kerzner Int'l Bah.
Ltd., 585 Fed.Appx. 962, 967 (11th Cir. 2014). Indeed,
the party seeking to avoid the forum-selection clause bears a
“heavy burden of proof” that the clause should be
set aside. Carnival Cruise Lines, Inc. v. Shute, 499
U.S. 585, 595 (1991).
considering a motion to dismiss for forum non
conveniens, as with a motion to dismiss for improper
venue under Federal Rule of Civil Procedure 12(b)(3), a court
must accept the facts in a plaintiff's complaint as true,
“to the extent they are uncontroverted by the
defendants' affidavits.” S & Davis
Int'l, Inc. v. Republic of Yemen, 218 F.3d 1292,
1303 (11th Cir. 2000) (quoting Taylor v. Phelan, 912
F.2d 429, 431 (10th Cir. 1990) (per curiam)); Delong
Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d
843, 845 (11th Cir. 1988) (citing Black v. Acme Markets,
Inc., 564 F.2d 681, 683 n.3 (5th Cir. 1977)). A court
may “consider matters outside the pleadings if
presented in proper form by the parties” in ruling on a
motion to dismiss for forum non conveniens. MGC
Commc'ns, Inc. v. BellSouth Telecomms., Inc., 146
F.Supp.2d 1344, 1349 (S.D. Fla. 2001); see also Grp. CG
Builders & Contractors v. Cahaba Disaster Recovery,
LLC, 534 Fed.Appx. 826, 829-30 (11th Cir. 2013)
(affidavit in support of motion to dismiss for forum non
conveniens properly considered); Webb v. Ginn Fin.
Servs., 500 Fed.Appx. 851, 854 (11th Cir. 2012)
(consideration of evidence outside the pleadings was
appropriate on Rule 12(b)(3) motion). “When affidavits
conflict, the court is inclined to give greater weight to the
plaintiff's version of the  facts and to construe such
facts in the light most favorable to the plaintiff.”
Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352,
1355 (11th Cir. 1990) (citing Delong Equip. Co., 840
F.2d at 845); PVC Windoors, Inc. v. Babbitbay Beach
Constr., N.V., 598 F.3d 802, 810 (11th Cir. 2010)
(“[W]here the evidence presented by the parties'
affidavits and deposition testimony conflicts, the court must
construe all reasonable inferences in favor of the non-movant
plaintiff.” (quoting Morris v. SSE, Inc., 843
F.2d 492 (11th Cir. 1988)); see also Belik v. Carlson
Travel Grp., Inc., 26 F.Supp.3d 1258, 1263 (S.D. Fla.
2012) (considering motion to dismiss for forum non
conveniens, courts “must draw all reasonable
inferences and resolve all factual conflicts in favor of the
analyzing the application of a forum-selection clause, a
court must determine whether the clause is valid, whether the
claim at issue falls within the scope of the clause - by
looking to the language of the clause itself - and whether
the clause is mandatory or permissive. See Bahamas Sales
Assoc., LLC v. Byers, 701 F.3d 1335, 1340 (11th Cir.
2012) (“To determine if a claim falls within the scope
of a clause, we look to the language of the clause.”);
Fla. Polk Cty. v. Prison Health Servs. Inc., 170
F.3d 1081, 1083 (11th Cir. 1999) (court must further
determine whether clause is mandatory or permissive). If a
court concludes that a valid and enforceable forum-selection
clause exists, it must conduct a forum non
conveniens analysis to determine whether the case should
be transferred. Pappas, 585 Fed.Appx. at 965.
argues that the Court should dismiss Plaintiff's Amended
Complaint because of the parties' valid forum-selection
clause. ECF No.  at 4-5. Alternatively, Defendant
requests that this Court transfer this action to the Northern
District of California, “pursuant to 28 U.S.C. §
1406(a), or § 1404(a), and the parties' agreed to
forum-selection clause.” ECF No.  at 3. Plaintiff,
on the other hand, contends that the forum-selection clause
does not apply to his standalone TCPA action. ECF No.  at
Validity of the Forum-Selection Clause
the Court must determine whether the forum-selection clause
at issue is valid. Cf. Atl. Marine Constr. Co., 571
U.S. at 62 n.5 (“Our analysis presupposes a
contractually valid forum-selection clause.”).
“Forum-selection clauses are presumptively valid and
enforceable unless the plaintiff makes a ‘strong
showing' that enforcement would be unfair or unreasonable
under the circumstances.” Krenkel v. Kerzner
Int'l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir.
2009) (citing Carnival Cruise Lines, Inc., 499 U.S.
at 593-95). Plaintiff fails to assert, let alone present a
“strong showing, ” that the forum-selection
clause is invalid. See ECF No. . Plaintiff does
not allege that the forum-selection clause was the product of
fraudulent inducement or was improperly included in the
customer agreement to deprive him of some right or ability.
See Id. at 6-9. Further, Plaintiff does not dispute
the existence of the customer agreement, its authenticity, or
the authenticity of his signature. See Id. As such,
the Court concludes that Plaintiff has failed to satisfy his
burden of presenting any “extraordinary
circumstances” preventing the clause's application.
Atl. Marine Constr. Co., 571 U.S. at 62;
Carnival Cruise Lines, Inc., 499 U.S. at 595
(“Indeed, the party seeking to avoid the
forum-selection clause bears a ‘heavy burden of
proof' that the clause should be set aside.”). The
forum-selection clause is, therefore, valid.
Scope of the Forum-Selection Clause
the Court must determine whether the TCPA claim at issue is
within the scope of the parties' forum-selection clause.
See generally Emerald Grande, Inc. v. Junkin, 334
Fed.Appx. 973, 976 (11th Cir. 2009). “Under general
contract principles, the plain meaning of a contract's
language governs its interpretation.” Slater v.
Energy Servs. Grp. Int'l, Inc., 643 F.3d 1326, 1330
(11th Cir. 2011) (citing Belize Telecom, Ltd. v.
Gov't of Belize, 528 F.3d 1298, 1307 & n.11
(11th Cir. 2008)). Thus, “[t]o determine if a