Ronald I. Raether, Jr. (SBN 303118) 2 E-mail: ron.reather@troutman.com 100 Spectrum Center Drive, Suite 1500 3 Irvine, California 92618 Telephone: 949.622.2722 4 Facsimile: 949.622.2739
5 Attorneys for Defendant Filmsupply, LLC 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 JONATHAN TRIMBOLI, Case No. 3:24-cv-06752-JD 10 Plaintiff, (Assigned to the Honorable James Donato) 11 v. STIPULATED MOTION TO TRANSFER 12 VENUE TO THE NORTHERN DISTRICT OF TEXAS AND TO 13 EXTEND DEADLINE TO ANSWER, FILMSUPPLY, LLC, a Texas Limited MOVE, OR OTHERWISE PLEAD 14 Liability Company Complaint served: September 26, 2024 15 Defendant. Current response date: November 27, 2024 New response date: January 11, 2025 16 17 Plaintiff Jonathan Trimboli (“Plaintiff”) and Defendant Filmsupply, LLC (“Filmsupply,” 18 collectively Defendant and Filmsupply are referred to as the “Parties”), hereby stipulate and move 19 the Court, pursuant to 28 U.S.C. § 1404(a), to transfer this action to the United States District 20 Court for the Northern District of Texas and to extend Filmsupply’s responsive pleading deadline 21 forty-five (45) days up to and including January 11, 2025. In support of this stipulated motion, the 22 parties state as follows: 23 1. On September 26, 2024, Plaintiff filed a Complaint against Filmsupply, ECF No. 1 24 (“Compl.”), alleging three claims that are based on allegations related to Plaintiff’s alleged use of 25 Filmsupply’s website located at www.Filmsupply.com (the “Website”). See, e.g., Compl. ¶¶ 3 26 and 34. 27 28 2 Paragraph 14(e) of the Terms of Use contains a forum selection clause which states, in relevant 3 part, as follows: 4 “YOU CONSENT AND AGREE ANY CLAIM OR DISPUTE BETWEEN YOU AND 5 FILMSUPPLY THAT ARISES IN WHOLE OR IN PART FROM THE SERVICE 6 SHALL BE DECIDED EXCLUSIVELY BY A STATE OR FEDERAL COURT OF 7 COMPETENT JURISDICTION LOCATED IN TARRANT COUNTY, TEXAS. To the 8 fullest extent permitted under applicable law, you irrevocably waive and agree not to 9 assert, by way of motion, as a defense or otherwise, any claim that you are not subject to 10 the jurisdiction of the above-referenced Texas courts and any objection that you may now 11 or hereafter have to the laying of venue of any suit, action, or proceeding brought in any 12 such court has been brought in an inconvenient forum.” 13 https://www.filmsupply.com/terms-and-conditions, ¶ 14(e) (emphasis in original). 14 3. The United States District Court for the Northern District of Texas is located in 15 Tarrant County, Texas. 16 4. Under 28 U.S.C. Section 1404(a), a court is authorized to, “[f]or the convenience 17 of parties and witnesses, in the interest of justice . . . transfer any civil action to any other district 18 or division where it might have been brought.” Section 1404 thus requires two showings: that 19 “the transferee court is a proper forum in which the action could have been brought originally” 20 and that “the transfer will enhance the convenience of the parties and witnesses, and is in the 21 interest of justice.” Brown v. Newsom, No. 23-cv-04040, 2024 U.S. Dist. LEXIS 101434, at *2 22 (N.D. Cal. May 1, 2024). 23 5. Courts consider several factors when considering whether a transfer of venue is 24 warranted, including: (1) “the state that is most familiar with the governing law,” (2) “the 25 plaintiff’s choice of forum,” (3) “the respective parties' contacts with the forum,” (4) “the contacts 26 relating to the plaintiff’s cause of action in the chosen forum,” (5) “the differences in the costs of 27 litigation in the two forums,” (6) “the availability of compulsory process to compel attendance of 28 unwilling non-party witnesses,” and (7) “the ease of access to sources of proof.” Clark v. VIP 2 (quoting Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000)). 3 6. However, when a forum selection clause exists, it is well-recognized that this 4 clause is presumptively valid and must be enforced absent an overwhelming showing that public 5 interest factors warrant setting aside the Parties’ agreed upon choice of forum. See Atl. Marine 6 Const. Co., 571 U.S. at 64-65 (stating that while a court “may consider arguments about public- 7 interest factors only,” “those factors will rarely defeat a transfer motion” and “such cases will not 8 be common”); Murphy v. Schneider Nat’l Inc., 362 F.3d 1133, 1140 (9th Cir. 2004) (“[F]orum 9 selection clauses are presumptively valid”). 10 7. With these principles in mind, the Section 1404(a) factors demonstrate this matter 11 should be transferred to the Northern District of Texas. 12 8. First, the Northern District of Texas has original subject matter jurisdiction over 13 this action pursuant to 28 U.S.C. § 1331 because it arises under a law of the United States (i.e., 14 the Video Privacy Protection Act). Compl. at ¶ 8. 15 9. Second, the Northern District of Texas has personal jurisdiction over Filmsupply 16 because Filmsupply is a Texas limited liability company with its principal place of business in 17 Tarrant County, Texas, Id. at ¶ 7, and over Plaintiff, because Plaintiff consented to the jurisdiction 18 of the Northern District of Texas. See Stipulation, at ¶ 2. 19 10. Third, venue is proper in the Northern District of Texas pursuant to 28 U.S.C. § 20 1391 because a substantial part of the events or omissions giving rise to Plaintiff’s allegations 21 occurred in the District and the parties consented to venue being proper in the Northern District of 22 Texas. See id., supra at ¶ 2. 23 11. The Parties agree that the Northern District of Texas is not an inconvenient forum. 24 See Atl. Marine Constr. Co., 571 U.S. at 64 (“when parties agree to a forum-selection clause, they 25 waive the right to challenge the preselected forum as inconvenient or less convenient for 26 themselves or their witnesses, or for their pursuit of the litigation.”). 27 12. Fourth, the cost of litigating a putative class action is the same in Northern District 28 of Texas as it is in the Northern District of California. 2 compel the attendance of unwilling non-party witnesses in this case. 3 14. Sixth, Filmsupply is located in the Northern District of Texas and its witnesses, 4 policies, and business records are located in that jurisdiction. 5 15. Finally, the Northern District of Texas is familiar with and capable of resolving the 6 three claims at issue here: (1) the Video Privacy Protection Act (18 U.S.C. § 2710); (2) the 7 California Video Privacy Protection Act (Cal. Civ. Code § 1799.3); and (3) California’s Unfair 8 Competition Law (Cal. Bus. & Prof. Code § 17200, et seq.). The Parties stipulate that the 9 Northern District of Texas is familiar with the Video Privacy Protection Act (18 U.S.C. § 2710) 10 and that Plaintiff’s claim under California’s Video Privacy Protection Act (Cal. Civ. Code § 11
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Ronald I. Raether, Jr. (SBN 303118) 2 E-mail: ron.reather@troutman.com 100 Spectrum Center Drive, Suite 1500 3 Irvine, California 92618 Telephone: 949.622.2722 4 Facsimile: 949.622.2739
5 Attorneys for Defendant Filmsupply, LLC 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 JONATHAN TRIMBOLI, Case No. 3:24-cv-06752-JD 10 Plaintiff, (Assigned to the Honorable James Donato) 11 v. STIPULATED MOTION TO TRANSFER 12 VENUE TO THE NORTHERN DISTRICT OF TEXAS AND TO 13 EXTEND DEADLINE TO ANSWER, FILMSUPPLY, LLC, a Texas Limited MOVE, OR OTHERWISE PLEAD 14 Liability Company Complaint served: September 26, 2024 15 Defendant. Current response date: November 27, 2024 New response date: January 11, 2025 16 17 Plaintiff Jonathan Trimboli (“Plaintiff”) and Defendant Filmsupply, LLC (“Filmsupply,” 18 collectively Defendant and Filmsupply are referred to as the “Parties”), hereby stipulate and move 19 the Court, pursuant to 28 U.S.C. § 1404(a), to transfer this action to the United States District 20 Court for the Northern District of Texas and to extend Filmsupply’s responsive pleading deadline 21 forty-five (45) days up to and including January 11, 2025. In support of this stipulated motion, the 22 parties state as follows: 23 1. On September 26, 2024, Plaintiff filed a Complaint against Filmsupply, ECF No. 1 24 (“Compl.”), alleging three claims that are based on allegations related to Plaintiff’s alleged use of 25 Filmsupply’s website located at www.Filmsupply.com (the “Website”). See, e.g., Compl. ¶¶ 3 26 and 34. 27 28 2 Paragraph 14(e) of the Terms of Use contains a forum selection clause which states, in relevant 3 part, as follows: 4 “YOU CONSENT AND AGREE ANY CLAIM OR DISPUTE BETWEEN YOU AND 5 FILMSUPPLY THAT ARISES IN WHOLE OR IN PART FROM THE SERVICE 6 SHALL BE DECIDED EXCLUSIVELY BY A STATE OR FEDERAL COURT OF 7 COMPETENT JURISDICTION LOCATED IN TARRANT COUNTY, TEXAS. To the 8 fullest extent permitted under applicable law, you irrevocably waive and agree not to 9 assert, by way of motion, as a defense or otherwise, any claim that you are not subject to 10 the jurisdiction of the above-referenced Texas courts and any objection that you may now 11 or hereafter have to the laying of venue of any suit, action, or proceeding brought in any 12 such court has been brought in an inconvenient forum.” 13 https://www.filmsupply.com/terms-and-conditions, ¶ 14(e) (emphasis in original). 14 3. The United States District Court for the Northern District of Texas is located in 15 Tarrant County, Texas. 16 4. Under 28 U.S.C. Section 1404(a), a court is authorized to, “[f]or the convenience 17 of parties and witnesses, in the interest of justice . . . transfer any civil action to any other district 18 or division where it might have been brought.” Section 1404 thus requires two showings: that 19 “the transferee court is a proper forum in which the action could have been brought originally” 20 and that “the transfer will enhance the convenience of the parties and witnesses, and is in the 21 interest of justice.” Brown v. Newsom, No. 23-cv-04040, 2024 U.S. Dist. LEXIS 101434, at *2 22 (N.D. Cal. May 1, 2024). 23 5. Courts consider several factors when considering whether a transfer of venue is 24 warranted, including: (1) “the state that is most familiar with the governing law,” (2) “the 25 plaintiff’s choice of forum,” (3) “the respective parties' contacts with the forum,” (4) “the contacts 26 relating to the plaintiff’s cause of action in the chosen forum,” (5) “the differences in the costs of 27 litigation in the two forums,” (6) “the availability of compulsory process to compel attendance of 28 unwilling non-party witnesses,” and (7) “the ease of access to sources of proof.” Clark v. VIP 2 (quoting Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000)). 3 6. However, when a forum selection clause exists, it is well-recognized that this 4 clause is presumptively valid and must be enforced absent an overwhelming showing that public 5 interest factors warrant setting aside the Parties’ agreed upon choice of forum. See Atl. Marine 6 Const. Co., 571 U.S. at 64-65 (stating that while a court “may consider arguments about public- 7 interest factors only,” “those factors will rarely defeat a transfer motion” and “such cases will not 8 be common”); Murphy v. Schneider Nat’l Inc., 362 F.3d 1133, 1140 (9th Cir. 2004) (“[F]orum 9 selection clauses are presumptively valid”). 10 7. With these principles in mind, the Section 1404(a) factors demonstrate this matter 11 should be transferred to the Northern District of Texas. 12 8. First, the Northern District of Texas has original subject matter jurisdiction over 13 this action pursuant to 28 U.S.C. § 1331 because it arises under a law of the United States (i.e., 14 the Video Privacy Protection Act). Compl. at ¶ 8. 15 9. Second, the Northern District of Texas has personal jurisdiction over Filmsupply 16 because Filmsupply is a Texas limited liability company with its principal place of business in 17 Tarrant County, Texas, Id. at ¶ 7, and over Plaintiff, because Plaintiff consented to the jurisdiction 18 of the Northern District of Texas. See Stipulation, at ¶ 2. 19 10. Third, venue is proper in the Northern District of Texas pursuant to 28 U.S.C. § 20 1391 because a substantial part of the events or omissions giving rise to Plaintiff’s allegations 21 occurred in the District and the parties consented to venue being proper in the Northern District of 22 Texas. See id., supra at ¶ 2. 23 11. The Parties agree that the Northern District of Texas is not an inconvenient forum. 24 See Atl. Marine Constr. Co., 571 U.S. at 64 (“when parties agree to a forum-selection clause, they 25 waive the right to challenge the preselected forum as inconvenient or less convenient for 26 themselves or their witnesses, or for their pursuit of the litigation.”). 27 12. Fourth, the cost of litigating a putative class action is the same in Northern District 28 of Texas as it is in the Northern District of California. 2 compel the attendance of unwilling non-party witnesses in this case. 3 14. Sixth, Filmsupply is located in the Northern District of Texas and its witnesses, 4 policies, and business records are located in that jurisdiction. 5 15. Finally, the Northern District of Texas is familiar with and capable of resolving the 6 three claims at issue here: (1) the Video Privacy Protection Act (18 U.S.C. § 2710); (2) the 7 California Video Privacy Protection Act (Cal. Civ. Code § 1799.3); and (3) California’s Unfair 8 Competition Law (Cal. Bus. & Prof. Code § 17200, et seq.). The Parties stipulate that the 9 Northern District of Texas is familiar with the Video Privacy Protection Act (18 U.S.C. § 2710) 10 and that Plaintiff’s claim under California’s Video Privacy Protection Act (Cal. Civ. Code § 11 1799.3), is nearly identical to Plaintiff’s claim under the Video Privacy Protection Act. See Fan v. 12 NBA Props. Inc., No. 23-cv-05069, 2024 U.S. Dist. LEXIS 57205, at *5 (N.D. Cal. Mar. 26, 13 2024) (“The parties agree that the elements of both statutes are similar, except that the VPPA 14 imposes more stringent requirements for consent, including that the consent is “informed, written 15 consent . . . in a form distinct and separate from any form setting forth other legal or financial 16 obligations of the consumer.”). In addition, the Northern District of Texas is familiar with 17 California’s Unfair Competition Law (Cal. Bus. & Prof. Code § 17200, et seq.). See, e.g., PHP 18 Agency, Inc. v. Martinez, No. 21-cv-00418, 2022 U.S. Dist. LEXIS 174572, at *5 (N.D. Tex. 19 Sept. 27, 2022) (addressing claims under California’s Unfair Competition Law). 20 16. On October 25, 2024, the Parties filed a stipulation extending the time for 21 Filmsupply to answer, move, or otherwise plead in response to the Complaint from October 28, 22 2024 until November 27, 2024. ECF No. 12. The extension for an additional forty-five (45) days, 23 until January 11, 2025, is not for the purpose of delay, but to enable the parties to confer and the 24 case to be transferred. 25 17. This Stipulation is submitted solely for the purpose of this Stipulated Motion to 26 Transfer Venue and without prejudice to any Party’s claims or defenses in this case. 27 Accordingly, for the foregoing reasons, the Parties stipulate to extend Filmsupply’s 28 responsive pleading deadline forty-five (45) days until January 11, 2025 and to transfer this action 2 Court’s convenience. 3 IT IS SO STIPULATED on this 20th day of November 2024.
4 MILBERG COLEMAN BRYSON TROUTMAN PEPPER HAMILTON PHILLIPS GROSSMAN, PLLC SANDERS LLP 5 6 By: s/John J. Nelson By: s/Ronald I. Raether, Jr. 7 John J. Nelson, Esq. Ronald I. Raether, Jr., Esq. MILBERG COLEMAN BRYSON TROUTMAN PEPPER HAMILTON 8 PHILLIPS GROSSMAN, PLLC SANDERS LLP 402 W. Broadway, Suite 1760 100 Spectrum Center Drive, Suite 1500 9 San Diego, CA 92101 Irvine, California 92618 10 Telephone: (858) 209-6941 Telephone:949.622.2722 Email: jnelson@milberg.com E-mail: ron.reather@troutman.com 11 Attorneys for Defendant Filmsupply, LLC 12 HAMMOND LAW, PC
13 By: _s/Julian Hammond_________________ 14 Julian Hammond, Esq. 1201 Pacific Ave., Suite 600 15 Tacoma, WA 98402 Telephone: 310-601-6766 16 Email: jhammond@hammondlawpc.com
17 Attorneys for Plaintiff Jonathan Trimboli 18
20 L.R. 5-1(i)(3) Attestation 21 The undersigned hereby attests that each of the other Signatories hereto have concurred in 22 the filing of this document. All necessary records supporting this concurrence have been 23 maintained, as required by the Local Rules. 24 25 By: s/ Ronald I. Raether, Jr. Ronald I. Raether, Jr., Esq. 26 27 28 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 Case No. 3:24-cv-06752-JD 6 JONATHAN TRIMBOLI, (Assigned to the Honorable James Donato) 7 Plaintiff, ORDER GRANTING STIPULATED MOTION TO TRANSFER VENUE TO 8 v. THE NORTHERN DISTRICT OF TEXAS 9 AND TO EXTEND THE DEADLINE TO ANSWER, MOVE, OR OTHERWISE 10 FILMSUPPLY, LLC, a Texas Limited PLEAD Liability Company 11 Complaint served: September 26, 2024 Defendant. Current response date: November 27, 2024 12 New response date: January 11, 2025 13 14 Before the Court is the Parties’ Stipulated Motion to Transfer Venue to the Northern 15 District of Texas and to Extend the Deadline to Answer, Move, or Otherwise Plead in Response 16 to the Complaint. The undersigned Parties hereto have consented to transfer venue to the 17 Northern District of Texas and stipulated that the transfer will enhance the convenience of the 18 parties and witnesses and is in the interest of justice. The Parties also agree to extend the time for 19 Defendant to answer, move, or otherwise plead in response to the Complaint from November 27, 20 2024 to January 11, 2025. 21 Having considered the Stipulated Motion and for good cause appearing, the Court hereby 22 ORDERS as follows: 23 1) The Stipulated Motion to Transfer Venue to the Northern District of Texas and to 24 Extend the Deadline to Answer, Move, or Otherwise Plead in Response to the 25 Complaint is GRANTED. 26 2) The Clerk is directed to TRANSFER this case to the United States District Court for 27 the Northern District of Texas. 28 1 3) Defendant’s responsive pleading deadline is extended forty-five (45) days up to and 2 including January 11, 2025. 3 Upon transfer, the Clerk shall CLOSE this case. 4 5 || SO ORDERED this 25trday of November, 2024 6 7 BY THE COU 8 9 10 Hon. J Donato UnitedfAtates District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION TO TRAN: SPER VENUE ANI D EXTEND TIME