1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 MARTIN BELTRAN, Case No. 25-cv-04412-JSC
6 Plaintiff, ORDER RE: MOTION TO TRANSFER 7 v. VENUE
8 NATIONSTAR MORTGAGE LLC, Re: Dkt. No. 24 Defendant. 9
10 11 Martin Beltran, individually and on behalf of a putative class, sues Nationstar Mortgage 12 LLC, d/b/a Mr. Cooper (“Mr. Cooper”), alleging it illicitly tracked and disclosed consumer 13 personal and financial information to third parties without authorization. (Dkt. No. 26.)1 14 Defendant moves to transfer venue to the United States District Court for the Northern District of 15 Texas pursuant to 28 U.S.C. § 1404(a) based on a forum selection clause in its website’s Terms of 16 Use. (Dkt. No. 24.) After carefully considering the parties’ submissions, having had the benefit 17 of oral argument on November 20, 2025, and having considered the parties’ February 2026 18 supplemental submissions, the Court GRANTS Defendant’s motion to transfer venue. 19 Defendant’s webpage provided Plaintiff with reasonably conspicuous notice that he was agreeing 20 to Defendant’s Terms of Use, making the agreement enforceable. As the forum selection clause is 21 not ambiguous, and Plaintiff does not otherwise challenge the enforceability and applicability of 22 the forum selection clause itself or present sufficient public-interest factors disfavoring transfer, 23 the forum selection clause warrants transfer to the Northern District of Texas. 24 // 25 // 26 // 27 1 BACKGROUND 2 I. FIRST AMENDED COMPLAINT ALLEGATIONS 3 Mr. Beltran is a resident of California and Defendant Mr. Cooper is a Delaware 4 Corporation with a principal place of business in Coppell, Texas. (Dkt. No. 26 ¶¶ 17, 18.) 5 Defendant is a mortgage lender and servicer. (Id. ¶ 2.) To provide its mortgage services, “Mr. 6 Cooper operates and encourages its customers to use its website … on which customers can, 7 among other things, access their account information, manage their mortgage, obtain information 8 about Mr. Cooper’s services, calculate and obtain quotes for mortgage payments and refinancing 9 options, and apply mortgages or refinancing.” (Id.) Unbeknownst to users, Defendant installed 10 third-party tracking technology on its website to collect and share users’ personal and financial 11 information with third parties without authorization. (Id. ¶ 3.) 12 II. PROCEDURAL HISTORY 13 Martin Beltran, Nicolle Ayers, and Patrice Norwood, individually and on behalf of a 14 putative class, filed suit in May 2025. (Dkt. No. 1.) In August 2025, Defendant filed motions to 15 dismiss the case for lack of jurisdiction and to transfer venue to the Northern District of Texas. 16 (Dkt. Nos. 24, 25.) In September, Mr. Beltran filed the operative First Amended Complaint 17 removing the other plaintiffs and becoming the sole plaintiff. (Dkt. No. 26.) Mr. Beltran brings 18 causes of action for (1) negligence; and violations of the (2) Comprehensive Computer Data 19 Access and Fraud Act, Cal. Penal Code § 502; (3) California’s Consumer Protection Law, Cal. 20 Bus. & Prof. Code § 17200, et seq.; and (4) California Consumer Privacy Act, Cal. Civ. Code § 21 1798.100, et seq. (Dkt. No. 26 ¶ 15.) Plaintiff also brings claims for (5) breach of express and 22 implied contract; (6) unjust enrichment; (7) breach of confidence; and violations of the (8-10) 23 California Invasion of Privacy Act, Cal. Penal Code §§ 631, 632, 638.51, et seq.; and (11) 24 Electronic Communications Privacy Act, 18 U.S.C. § 2511(1), et seq. (Id.) Now pending is 25 Defendant’s motion to transfer venue. (Dkt. No. 24.) 26 III. RELEVANT FACTS RE: TERMS OF USE 27 In 2019, Plaintiff obtained a mortgage through Bank of America. (Dkt. No. 26 ¶ 123.) ] 124.) Bank of America instructed Plaintiff to make an account with Defendant to pay his 2 || mortgage, which Plaintiff did. Ud. 124, 128.) 3 To create an account on Defendant’s website, a user first encounters a webpage where they 4 can input their last name and social security number: 5 6 7 8 Let's Create Your Account. 9 Een nanan. 10 Last Name 1] 1] SSN /ITIN/
& 1] 3 H you need help, call us ot 829-406-2544. 14
A 16 |) (Dkt. No. 24-3 at 2; Dkt. No. 24-1 9 11.)
Z 18 19 20 21 22 23 24 25 26 27 28
] After inputting their information and clicking “Find My Loan,” the user sees a webpage 2 |} like this: 3 4 5 Create your Mr. Cooper account.
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(Id.) The parties do not dispute Plaintiff encountered these same webpages in creating an account. 2 15 (Dkt. No. 29 at 9-10 (““Mr. Cooper offers two screenshots of the web pages Plaintiff Beltran would 16 || have seen during this process.” (citing Dkt. No. 24-3)).) The second webpage page states in large 2 17 print, “Create your Mr. Cooper Account.” (Dkt. No. 24-3.) The page is white and most of the text Z 18 is gray apart from “Create your Mr. Cooper account” and “Password Requirements.” (/d.) Near 19 |! the top of the page, there are gray text instructions to fill in and confirm sign-in information and 20 || create a password. (/d.) There is a gray box above the space to enter a password containing a blue 21 shield symbol and password requirements. (/d.) At the bottom of the page there is a dark blue 22 || “Save & Continue” button. (Id.) Directly above this button, the webpage states “By clicking 23 ‘Save & Continue’ you agree to the Terms of Use for Mr. Cooper’s website” in a font smaller than 24 || the rest of the text except for the password requirements. (/d.) The Terms of Use text is bolded, 25 italicized, blue, and hyperlinks to the full Terms of Use. U/d.; Dkt. No. 24-1 § 12.) 26 Clicking on the hyperlink opens the Terms of Use in a new window. (Dkt. No. 24-1 4 13.) 27 || The top of the Terms of Use page states: “NOTICE: PLEASE READ THESE TERMS AND 28 || CONDITIONS CAREFULLY. BY ACCESSING THIS SITE AND ANY PAGES THEREOF,
1 YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW.” (Dkt. No. 24- 2 2 at 2.) The Terms of Use include a forum selection clause which provides:
3 The user’s access to and use of the Mr. Cooper websites and mobile apps, and the terms of this disclaimer are governed by all applicable 4 Federal laws and the laws of the state of Texas; and the user agrees that venue shall be located in Dallas County, Texas. 5 (Id. at 7.) The Terms of Use also represent that Defendant “take[s] your privacy seriously” and 6 instructs customers to read the privacy policy for details regarding Defendant’s privacy practices. 7 (Id. at 5; Dkt. No. 26 ¶ 79.) Plaintiff alleges the Privacy Policy created a contractual relationship 8 between Plaintiff and Defendant. (Dkt. No. 26 ¶ 78.) 9 After making an account, Plaintiff regularly used Defendant’s website “to review his 10 account, manage his mortgage, and make payments.” (Id. ¶ 126.) “He has been using the website 11 anywhere between a few times a month to a few times a week since 2021-2022.” (Id.) 12 DISCUSSION 13 I. MOTION TO TRANSFER 14 Defendant moves to transfer under 28 U.S.C. § 1404(a) based on the forum selection 15 clause in its website’s Terms of Use. Defendant argues the case should be transferred to the 16 Northern District of Texas because: (1) the forum selection clause is valid and enforceable, (2) the 17 forum selection clause encompasses Plaintiff’s claims against Defendant, and (3) the public- 18 interest factors do not overwhelmingly disfavor transfer. “In considering a motion to transfer, the 19 Court may consider evidence outside of the pleadings, and it draws all reasonable inferences and 20 resolves factual conflicts in favor of the non-moving party.” Davis v. New York Life Ins. Co., 21 2024 WL 100277, at *1 n.1 (N.D. Cal. Jan. 9, 2024) (cleaned up). 22 Under 28 U.S.C. § 1404(a) a district court may “transfer any civil action to any other 23 district or division where it might have been brought or to any district or division to which all 24 parties have consented … [f]or the convenience of parties and witnesses.” 28 U.S.C. § 1404(a). 25 In considering such a transfer, the court “must evaluate both the convenience of the parties and 26 various public-interest considerations” weighing “the relevant factors and decid[ing] whether, on 27 balance, a transfer would serve ‘the convenience of parties and witnesses’ and otherwise promote 1 ‘the interest of justice.’” Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 2 62–63 (2013) (quoting 28 U.S.C. § 1404(a)). “The calculus changes, however, when the parties’ 3 contract contains a valid forum-selection clause, which represents the parties’ agreement as to the 4 most proper forum.” Id. at 63 (cleaned up). Under such circumstances, “a proper application of § 5 1404(a) requires that a forum-selection clause be given controlling weight in all but the most 6 exceptional cases.” Id. at 59–60 (cleaned up). By “[e]nforc[ing] ... valid forum-selection clauses, 7 bargained for by the parties, [the court] protects their legitimate expectations and furthers vital 8 interests of the justice system.” Id. at 63 (cleaned up). Accordingly, when presented with such an 9 agreement, the court must disregard the plaintiff’s choice of forum and the parties’ private 10 interests. Id. at 63–64. It instead “consider[s] arguments about public-interest factors only,” and 11 “those factors will rarely defeat a transfer motion.” Id. at 64. Further, “the party acting in 12 violation of the forum-selection clause ... must bear the burden of showing that public-interest 13 factors overwhelmingly disfavor a transfer.” Id. at 67. 14 It is undisputed Plaintiff made an account on Defendant’s website. (Dkt. No. 26 ¶ 123 15 (“Plaintiff Beltran opened an online account with Mr. Cooper.”).) Defendant contends, in making 16 an account, Plaintiff agreed to the website’s Terms of Use, which bind Plaintiff to the forum 17 selection clause selecting Dallas County Texas. (Dkt. Nos. 24-1 ¶¶ 9-10; 24-2 at 7.) The present 18 venue dispute, as set forth in the parties’ original briefing, centers on the validity of the Terms of 19 Use agreement containing the forum selection clause. If Plaintiff is bound by the Terms of Use, 20 the parties do not dispute the forum selection clause is valid and encompasses Plaintiff’s claims. 21 A. Agreement to the Terms of Use 22 As an initial matter, the Court applies California law to resolve this dispute. While the 23 parties do not discuss what law applies to the contract formation question, both rely on Lee v. 24 Ticketmaster L.L.C., 817 F. App’x 393 (9th Cir. 2020), which applied California law on contract 25 formation. Id. at 394. So, the Court assumes the parties agree to apply California law to the 26 question of contract formation. See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1267 (9th Cir. 27 2006) (finding waiver of choice of law provision and applying California law when parties 1 As the party seeking to enforce the forum selection clause, Defendant “bears the burden of 2 proving the existence of an agreement ... by a preponderance of the evidence.” Norcia v. Samsung 3 Telecomms. Am., LLC., 845 F.3d 1279, 1283 (9th Cir. 2017) (cleaned up). “To form a contract 4 under ... California law, the parties must manifest their mutual assent to the terms of the 5 agreement.” Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 855 (9th Cir. 2022). “Parties 6 traditionally manifest assent by written or spoken word, but they can also do so through conduct.” 7 Id. “However, ‘[t]he conduct of a party is not effective as a manifestation of his assent unless he 8 intends to engage in the conduct and knows or has reason to know that the other party may infer 9 from his conduct that he assents.’” Id. (alteration in original) (quoting Restatement (Second) of 10 Contracts § 19(2) (1981)). “These elemental principles of contract formation apply with equal 11 force to contracts formed online. Thus, if a website offers contractual terms to those who use the 12 site, and a user engages in conduct that manifests her acceptance of those terms, an enforceable 13 agreement can be formed.” Id. at 855–56. 14 In California, “internet contracts are classified ‘by the way in which the user purportedly 15 gives their assent to be bound by the associated terms: browsewraps, clickwraps, scrollwraps, and 16 sign-in wraps.’” Keebaugh v. Warner Bros. Ent. Inc., 100 F.4th 1005, 1014 (9th Cir. 2024) 17 (quoting Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 463 (2021)). Although Plaintiff did not 18 need to indicate he had read and agreed to the Terms of Use to make an account on Defendant’s 19 website, Defendant argues by clicking “Save & Continue” during the account creation process 20 Plaintiff agreed to the Terms of Use. This process is a “sign-in wrap agreement” wherein
21 a user signs up to use an internet product or service, and the sign-up screen states that acceptance of a separate agreement is required 22 before the user can access the service. While a link to the separate agreement is provided, users are not required to indicate that they 23 have read the agreement’s terms before signing up. 24 Sellers, 73 Cal. App. 5th at 464. For the sign-in wrap agreement to be enforceable, the website 25 operator must show the user had “actual knowledge” or “inquiry notice” of the agreement. 26 Berman, 30 F.4th at 856. 27 Defendant does not contend Plaintiff had actual knowledge of the Terms of Use agreement 1 requires: “(1) the website provides reasonably conspicuous notice of the terms to which the 2 consumer will be bound; and (2) the consumer takes some action, such as clicking a button or 3 checking a box, that unambiguously manifests his or her assent to those terms.” Id. 4 1. Reasonably Conspicuous Notice 5 To determine whether a website provides reasonably conspicuous notice of its terms such 6 that a “reasonably prudent Internet user would have seen it,” courts consider “the context of the 7 transaction and the placement of the notice.” Oberstein v. Live Nation Ent., Inc., 60 F.4th 505, 8 515-16 (9th Cir. 2023) (cleaned up). For instance, in transactions that entail a continuing 9 relationship, as opposed to one-time website visit, courts assume a reasonably prudent user would 10 expect the continuing relationship to be governed by some terms and thus be on notice of a link to 11 those terms. See Sellers, 73 Cal. App. 5th at 476–77 (noting a user would expect an ongoing 12 relationship with contractual terms when they download an app and register for an account, but not 13 when the user merely begins a $5 trial). As for notice placement, certain factors are relevant to the 14 “visual analysis of webpages and hyperlinks, such as the location of the advisal on the webpage or 15 the font size, color, and contrast.” Godun v. JustAnswer LLC, 135 F.4th 699, 709 (9th Cir. 2025); 16 see also Berman, 30 F.4th at 856–57 (considering notice to be insufficiently conspicuous when the 17 notice was printed in a “barely legible” gray font that also failed to denote the existence of a 18 hyperlink in a recognizable way, such as in blue font or all capitalized letters). 19 Plaintiff insists under both considerations, notice was not reasonably conspicuous. First, in 20 the context of the transaction between Plaintiff and Defendant, a consumer would not expect to 21 agree to new terms and conditions. Second, the design of the webpage and placement of the 22 Terms of Use notice are insufficient to provide reasonably conspicuous notice. Neither argument 23 is persuasive. 24 i. Transaction Context 25 The transaction context supports conspicuous notice. Plaintiff was required to make an 26 account to pay his mortgage through Defendant’s website, which included entering his name, 27 social security number, contact information, and creating a password. (Dkt. No. 26 ¶¶ 123, 124; 1 process[] reflect[s] the contemplation of ‘some sort of continuing relationship’ that would have put 2 users on notice for a link to the terms of that continuing relationship.” See Oberstein, 60 F.4th at 3 517 (quoting Sellers, 73 Cal. App. 5th at 477). Indeed, Plaintiff’s creation of an account to make 4 monthly mortgage payments necessitated a continuing relationship with Defendant. (Dkt. No. 26 5 ¶¶ 124, 126.) And Plaintiff did engage in a continuing relationship with Defendant, using the 6 website “anywhere between a few times a month to a few times a week since 2021-2022.” (Id. ¶ 7 126); see also Sarhadi v. Pear Health Labs, Inc., 2025 WL 1350033, at *6 (N.D. Cal. Apr. 18, 8 2025) (considering the context of the transaction, when the plaintiff was “required to create an 9 Aaptiv account and then engaged in an ongoing relationship with Aaptiv,” to weigh in favor of 10 conspicuous notice); Ghazizadeh v. Coursera, Inc., 737 F. Supp. 3d 911, 926 (N.D. Cal. 2024) 11 (finding a user signed up for a continuing service like Coursera “would … expect (or should 12 expect) their access to the platform would be continual and governed by some terms of use”). 13 Plaintiff’s argument otherwise misconstrues the context of the transaction. In essence, 14 Plaintiff contends a consumer would not expect their mortgage terms to change due to the 15 mortgage being transferred to a new mortgagee; so, Plaintiff would not have expected to be 16 agreeing to additional terms and conditions with his new mortgage servicer. However, the 17 agreement with Defendant is not a new agreement on a preexisting loan—it is an agreement to the 18 website’s terms. The Terms of Use make clear they govern “[t]he user’s access to and use of the 19 Mr. Cooper websites and mobile apps,” not the substantive terms of the loan. (Dkt. No. 24-2 at 7.) 20 Thus, the correct question is not whether a consumer would expect the terms of their loan to 21 change, it is whether a consumer would expect registering with a new website to make mortgage 22 payments to be accompanied by new terms and conditions. They would. Indeed, Plaintiff, in his 23 Amended Complaint, relies on Defendant’s representations as to user privacy in both its Terms of 24 Use and Privacy Policy to allege Defendant breached its “privacy contracts” with its users. (Dkt. 25 No. 26 ¶¶ 78-79, 227, 230.) So, although Plaintiff’s counsel argues Beltran would not have 26 expected additional terms to accompany his new relationship with Defendant, Beltran’s claims 27 expressly rely on new privacy terms to make claims against Defendant. (Id.); see, e.g., Hart v. 1 211 (9th Cir. 2020) (finding the plaintiffs’ declarations that the 2017 statements provided 2 sufficient notice “defeat[ed] their challenge that the notice of the 2014 [statements] was not 3 reasonably conspicuous” because the 2017 statements “included notices … which were just as 4 prominently displayed as the notices in the 2014 statements”) (cleaned up). So, drawing 5 reasonable inferences from the evidence in Plaintiff’s favor, the Court cannot conclude a 6 reasonable consumer would not have expected new terms of use on a website new to the 7 consumer. 8 Plaintiff also cites Seneca v. Homeaglow, Inc., 2024 WL 750029 (C.D. Cal. Feb. 7, 2024), 9 for the proposition a user would have no reason to expect new terms because the Terms of Use 10 appear after Plaintiff had already entered his last name and social security number. But Seneca is 11 distinguishable because there the terms of service were presented only after customers completed 12 the purchase and the website charged the customer’s credit card, at which point customers “would 13 have no reason to expect the post-hoc imposition of terms and conditions to the previous 14 purchase.” Id. at *4. In contrast, here, the Terms of Use are not imposed “post-hoc” because the 15 website presents the hyperlinked Terms of Use after identifying information is entered, but before 16 the user completes the process of creating their account or makes any payment to Defendant. 17 Lastly, Plaintiff asserts the new terms are adhesive because internet contracts “are mostly 18 contracts of adhesion” and “consumers do not generally have the ability to negotiate.” (Dkt. No. 19 29 at 8.) Plaintiff cites no cases to support this argument. At oral argument, Plaintiff argued, for 20 the first time, that he had to make an online account, and thus agree to the Terms of Use, to make a 21 mortgage payment, thus disputing Defendant’s insistence the Terms of Use are not adhesive 22 because Defendant did not require Plaintiff to make an online account to pay his mortgage. (Dkt. 23 No. 36 at 10 n.3.) So, the Court granted the parties leave to submit additional evidence and 24 argument on whether a consumer in Plaintiff’s circumstances had to create an online account to 25 make a mortgage payment. Defendant submitted evidence establishing Plaintiff was not required 26 to pay his mortgage through the website and, in fact, Plaintiff made one mortgage payment by 27 phone and six by wire. (Dkt. No. 49-1.) Plaintiff’s two supplemental briefs do not address the 1 issue. (Dkt. Nos. 48, 51.) So, his oral argument assertion he was required to make mortgage 2 payments through the website is meritless. 3 Accordingly, the transaction’s context supports conspicuous notice because, drawing 4 reasonable inferences from the record in Plaintiff’s favor, Plaintiff, in undergoing a registration 5 process to make ongoing payments, should have anticipated terms and conditions to govern his 6 ongoing relationship with Defendant. 7 ii. Notice Placement 8 The placement of Defendant’s Terms of Use is conspicuous and puts a reasonable user on 9 notice they are agreeing to be bound by the terms. The webpage states, “By clicking ‘Save & 10 Continue’ you agree to the Terms of Use for Mr. Cooper’s website.” (Dkt. No. 24-3.) While the 11 text of the advisal is primarily the same gray color as most of the webpage’s other text, the Terms 12 of Use are bolded, italicized, and blue. (Id.) The text’s blue color contrasts the rest of the white 13 page and the surrounding text, making it easier for a user to see the Terms. (Id.) The page is 14 uncluttered and the statement including the Terms of Use is directly above the “Save & Continue” 15 button, so a reader would naturally see the notice before their eyes move to “Save & Continue.” 16 (Id.) Thus, the notice is “conspicuously displayed directly [above] the action button, the statement 17 clearly denotes that continued use will constitute acceptance of the Terms of [Use], and the link to 18 the Terms of [Use] is conspicuously distinguished from the surrounding text, by a contrasting” 19 blue font color “denoting the existence of a hyperlink.” Keebaugh, 100 F.4th at 1020–21 (cleaned 20 up); see also Berman, 30 F.4th at 857 (“A web designer must do more than simply underscore the 21 hyperlinked text in order to ensure that it is sufficiently set apart from the surrounding text.”) 22 (cleaned up); Lee, 817 F. App’x at 394–95 (considering notice to be conspicuous when three lines 23 below the sign-in button, “the website displayed the phrase, ‘By continuing past this page, you 24 agree to our Terms of Use,’” and the “‘Terms of Use’ was displayed in blue font and contained a 25 hyperlink to Ticketmaster’s Terms”); Bender v. Twilio Inc., 2025 WL 2308484, at *3 (N.D. Cal. 26 Aug. 11, 2025) (finding advisal of terms to be conspicuous due to contrasting font, underlining, 27 and location directly below the action button). ] Plaintiff disputes the conspicuousness of the notice, but the cases upon which he relies are 2 || distinguishable. For example, included below is the notice challenged in Serrano v. Open Road 3 || Delivery Holdings, Inc., 666 F. Supp. 3d 1089 (C.D. Cal. 2023), where the small, light-colored 4 || notice blended into the white background and was not immediately adjacent to the action button. 5 || dd. at 1096. Further, the court gave significant weight to “the failure to identify the hyperlink to 6 || Defendant’s Terms of Use by more than mere underlining.” /d. 7 am 10 Email 1] Mobile Phone Number a 12
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1 Similarly, in Kuhk v. Playstudios Inc., 2024 WL 4529263 (W.D. Wash. Oct. 18, 2024), the 2 || notice (reproduced below) was “significantly smaller” than surrounding text, “and the color of the 3 || notice [was] so similar to the background color of the game homepage that it [was] barely visible 4 || to the naked eye.” /d. at *6. Additionally, the webpage did not clearly suggest the existence of a 5 || hyperlink because the hyperlink was not underlined or in a font color “so contrasting as to clearly 6 || suggest that it [was] a hyperlink,” and it was “relatively inconspicuous compared to the bright, 7 || flashing lights of the logo above it.” Jd. at *7. 8 = -_ = 9 rt, oe ahd | = gam = - 7 □□ ie
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23 || Id. at *1. 24 While Plaintiff insists the notice’s font here 1s “tiny,” the “text is presented in a hardly 25 || visible light gray color,” and the other elements of the page draw a user’s eye away from the 26 || notice, Defendant’s webpage is a far cry from those at issue in Serrano and Kuhk. (Dkt. No. 29 at 27 12.) The notice, while in a slightly smaller font than some of the other text, is still legible. (Dkt. 28 || No. 24-3.) And the blue Terms of Use contrast the white background, making the notice easier to
1 see and drawing the user’s attention. (Dkt. No. 24-3.) Relatedly, unlike in Serrano and Kuhk, the 2 blue, bolded, and italicized Terms of Use signify a hyperlink. (Dkt. No. 24-3.) And there are no 3 distracting elements separating the notice from the action button. (Id.) Rather, the notice is 4 directly above the action button. (Id.) Accordingly, the Court can “fairly assume that a 5 reasonably prudent Internet user would have seen it.” See Berman, 30 F.4th at 856. 6 *** 7 So, for the reasons explained above, the transaction context and notice placement on 8 Defendant’s website provided reasonably conspicuous notice of the Terms of Use. 9 2. Consumer Action 10 The requirement a consumer take some action to manifest assent is also met. “[A] 11 webpage must explain that certain actions will be understood by the offeror to signal assent to 12 contractual terms … [a]nd it must identify what, exactly, those actions are.” Godun, 135 F.4th at 13 711. Defendant’s website does so. Defendant’s website states: “By clicking ‘Save & Continue’ 14 you agree to the Terms of Use for Mr. Cooper’s Website.” (Dkt. No. 24-3.) Plaintiff was 15 therefore advised pressing “Save & Continue” would manifest assent to the Terms of Use, and he 16 does not dispute he did press “Save & Continue” to make an account. So, Plaintiff manifested 17 assent to the Terms of Use. 18 Plaintiff nevertheless argues “a user creating a password automatically through a browser 19 like Chrome (which provides users with the ability to auto-generate secure passwords, as many 20 other browsers now do) and pressing ‘Tab’ and ‘Enter’ could auto-generate a password without 21 even having to click the ‘Save and Continue’ button, which does not include a separate checkbox 22 to assent to the Terms of Use.” (Dkt. No. 29 at 13.) But Plaintiff does not allege or even argue he 23 bypassed the “Save & Continue” button through use of an autogenerate a password feature. That a 24 user could theoretically do so does not impact assent in this case. 25 3. Forum Selection Clause Ambiguity 26 At oral argument, Plaintiff argued for the first time the venue clause is ambiguous as to 27 requiring venue in Texas, and therefore the motion to transfer should be denied. Although the 1 issue. Federal law governs interpretation of a forum selection clause, even in a diversity 2 jurisdiction case. See Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 513 (9th Cir. 1988). 3 The forum selection clause is included in the following Terms of Use 4 paragraph:
5 Limitation Of Liability IN NO EVENT WILL MR. COOPER BE LIABLE FOR ANY 6 DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES 7 (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) TO THE USER AND/OR ANY THIRD PARTY, 8 ARISING IN CONNECTION WITH THIS SITE OR USE THEREOF OR INABILITY TO USE BY ANY PARTY, OR IN 9 CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN 10 OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, EVEN IF MR. COOPER, OR 11 REPRESENTATIVES THEREOF, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES. 12 The user’s access to and use of the Mr. Cooper websites and mobile apps, and the terms of this disclaimer are governed by all 13 applicable Federal laws and the laws of the state of Texas; and the user agrees that venue shall be located in Dallas County, 14 Texas. 15 (Dkt. No. 30-3 at 6–7 (emphasis added).) Defendant contends the last sentence constitutes the 16 clause selecting Dallas County, Texas as the forum for all disputes arising from the website, as do 17 Plaintiff’s claims. “The plain language of the contract should be considered first, with the 18 understanding that the common or normal meaning of language will be given to the words of a 19 contract unless circumstances show that in a particular case a special meaning should be attached 20 to it.” Simonoff v. Expedia, Inc., 643 F.3d 1202, 1205 (9th Cir. 2011) (interpreting a forum 21 selection clause under federal law). A plain reading of the clause is that claims involving use of 22 Mr. Cooper’s websites are “governed by all applicable Federal laws and the laws of the state of 23 Texas” and shall be venued in Dallas County, Texas. Venue could only refer to the location of 24 lawsuits arising from “access to and use of” the websites. This interpretation is further compelled 25 by the clause’s location in the section entitled “Limitation of Liability”—liability arises from 26 lawsuits. See also Venue, Black’s Law Dictionary (12th ed. 2024) (defining “venue” as “[t]he 27 proper or a possible place for a lawsuit to proceed ….”); 28 U.S.C. § 1391(b) (“Venue in 1 Plaintiff first argues the sentence’s failure to state “all disputes”, or something similar to 2 “all disputes shall be venued in Texas” renders the clause ambiguous and therefore requires it be 3 construed in Plaintiff’s favor. But Plaintiff does not cite any cases that address interpretation of a 4 forum selection clause and, importantly, he does not offer an alternative interpretation. If the 5 clause’s plain meaning is not that lawsuits regarding use of the website must be venued in Texas, 6 what is an alternative meaning? Plaintiff speculates only that the clause could mean “a user is 7 agreeing that venue of their access to the website is located in Dallas.” (Dkt. No. 48 at 4.) But 8 what does that mean? Plaintiff does not explain and thus does not proffer a reasonable alternative 9 interpretation of the clause that would render it ambiguous. 10 Next, Plaintiff also argues forum selection clauses always refer to venue of disputes or 11 lawsuits or something similar. But Plaintiff is incorrect. See, e.g., Damian v. David Green Org., 12 LLC, 2006 WL 8455335, at *1 (S.D. Cal. July 6, 2006) (granting motion to transfer when forum 13 selection clause stated, “[t]his agreement shall be interpreted and enforced in accordance with the 14 laws of the State of Illinois and venue shall only be in Cook County, Illinois”); Pong v. Am. Cap. 15 Holdings, Inc., 2007 WL 657790, at *2 (E.D. Cal. Feb. 28, 2007) (enforcing forum selection 16 clause stating that, “This note ... shall be construed, governed and enforced in accordance with the 17 laws of the State of Florida with venue being agreed to as Palm Beach County, Florida”); Masters 18 v. Ctr. for Fin., Legal & Tax Plan., Inc., 2020 WL 13228365, at *3 (S.D. Tex. Aug. 27, 2020) 19 (same for forum selection clause stating, “[b]oth Parties . . . [a]gree and consent to the jurisdiction 20 and application of Illinois laws and that venue shall be in Williamson county”). 21 *** 22 Accordingly, Defendant has met its burden to show the parties formed a valid and 23 enforceable agreement through Plaintiff’s creation of an account on the website. Plaintiff does not 24 dispute the forum selection clause’s validity or enforceability (other than claiming an 25 interpretation ambiguity) or that Plaintiff’s claims arise from Plaintiff’s “access to and use of the 26 Mr. Cooper websites and mobile apps.” (Dkt. No. 24-2 at 7.) So, the forum selection clause 27 applies. 1 B. Remaining § 1404(a) Analysis 2 Because the parties’ contract contains a valid forum-selection clause, the forum selection 3 clause is given “controlling weight in all but the most exceptional cases” and the Court disregards 4 Plaintiff’s choice of forum and the parties’ private interest factors. Atl. Marine Const., 571 U.S. at 5 63–64 (cleaned up). The Court only considers public-interest factors. Id. at 64. “As the party 6 acting in violation of the forum-selection clause, [Plaintiff] must bear the burden of showing that 7 public-interest factors overwhelmingly disfavor a transfer.” Id. at 67. 8 Public interest factors include “the administrative difficulties flowing from court 9 congestion[,] the local interest in having localized controversies decided at home[,] and the 10 interest in having the trial of a diversity case in a forum that is at home with the law.” Id. at 62 11 n.6. (cleaned up). Plaintiff contends the local interest factor weighs against transfer because “Mr. 12 Cooper chose to purchase mortgages in California and then sold the data of California consumers 13 like Plaintiff.” (Dkt. No. 29 at 17.) But this alone is insufficient to show the public interest 14 overwhelmingly disfavors transfer particularly when other factors weigh in favor of transferring. 15 For instance, the Northern District of Texas is less congested than the Northern District of 16 California. (Dkt. No. 24 at 17-18 (“As of December 2024, the Northern District of California had 17 … 753 cases per judgeship … and a 34.5-month time from filing to trial for civil cases; whereas 18 the Northern District of Texas had … 632 cases per judgeship … and a 20.8-month time from 19 filing to trial for civil cases.”).) And the Northern District of Texas has more familiarity with the 20 governing Texas Law. (Dkt. No. 24-2 at 7 (“[U]se of the Mr. Cooper websites ... are governed by 21 all applicable Federal laws and the laws of the state of Texas.”).) 22 Accordingly, the forum selection clause controls and warrants transfer of this case to the 23 Northern District of Texas. 24 // 25 // 26 // 27 // 1 CONCLUSION 2 For the reasons set forth above, the Court GRANTS Defendant’s motion to transfer venue 3 || to the Northern District of Texas pursuant to 28 U.S.C. § 1404(a). 4 This order disposes of Dkt. No. 24. 5 IT IS SO ORDERED. 6 Dated: March 6, 2026 7 8 ne JAQQUELINE SCOTT CORL 9 United States District Judge 10 11 a 12
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