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Hindi v. Birdeye, Inc.

United States District Court, S.D. Florida

August 28, 2019

JAMIL HINDI, individually and on behalf of all others similarly situated, Plaintiff,
BIRDEYE, INC., Defendant.



         THIS CAUSE is before the Court upon Defendant BirdEye, Inc.'s Motion to Dismiss First Amended Complaint and/or to Stay Action, ECF No. [19] (“Motion to Dismiss”), and Defendant's Motion to Stay Discovery and/or for Protective Order Pending Ruling on Motion to Dismiss, ECF No. [20] (“Motion to Stay Discovery”), (collectively, the “Motions”). Plaintiff Jamil Hindi filed responses to both Motions, ECF Nos. [26], [25], to which Defendant replied, ECF Nos. [28], [27]. 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.

         I. BACKGROUND

         On July 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 No. [13].

         Defendant 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.

         On July 31, 2019, Defendant filed its Motion to Stay Discovery pending this Court's resolution of its Motion to Dismiss. ECF No. [20]. On the same day, Defendant also filed its Motion to Dismiss for lack of personal jurisdiction. ECF No. [19]. 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.


         Section 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 62.

         The 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).

         In 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 plaintiff”).

         In 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.


         Defendant argues that the Court should dismiss Plaintiff's Amended Complaint because of the parties' valid forum-selection clause. ECF No. [19] 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. [28] at 3. Plaintiff, on the other hand, contends that the forum-selection clause does not apply to his standalone TCPA action. ECF No. [26] at 8.

         A. Validity of the Forum-Selection Clause

         First, 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. [26]. 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.

         B. Scope of the Forum-Selection Clause

         Next, 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 ...

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