Virginia Lawyers Weekly//December 5, 2022
Virginia Lawyers Weekly//December 5, 2022//
Where a customer agreed that any disputes with her bank would be litigated in the Eastern District of Virginia, her suit was transferred from Texas to the Alexandria Division. Although the customer claimed to not recall agreeing to the venue clause, the evidence showed that she had done so, and the customer failed to show that transfer was unwarranted.
Kacy Lynn Young sued Capital One for alleged violations of (1) the Texas Debt Collection Act, (2) common law prohibitions on intrusions on seclusion, solitude and private affairs and (3) the Fair Credit Reporting Act, or FCRA. Plaintiff alleges that Capital One has attempted to collect debt that was discharged through “coercion and deception” in the form of “regular and systematic illegal access to Plaintiff’s credit reports” and “a relentless stream of unsolicited and unwanted emails,” including emails from Capital One’s credit monitoring system, called CreditWise.
Capital One moved to transfer the case to the Eastern District of Virginia, Alexandria Division, pursuant to 28 U.S.C. § 1404(a), arguing that plaintiff signed up for CreditWise, and in doing so, she agreed to terms and conditions containing a mandatory forum selection clause. The court allowed limited discovery related to whether plaintiff agreed to the CreditWise terms and conditions, including the mandatory forum selection clause. After conducting limited discovery, each side submitted supplemental briefing, including deposition testimony of plaintiff and Amshuman Ramachandran, a Capital One Senior Business Manager.
Defendants assert plaintiff agreed to the forum selection clause contained in the CreditWise terms and conditions when she enrolled in CreditWise. In response, plaintiff does not expressly deny that she accessed or enrolled in CreditWise, opened a CreditWise account or accepted the CreditWise terms and conditions. Nor does she contend that she somehow accessed CreditWise without agreeing to the terms and conditions.
Instead, plaintiff states in her supplemental declaration “I never intended to enroll in CreditWise,” and that, “[t]o my knowledge, I did not see, read, or agree to any Terms and Conditions for CreditWise.” Plaintiff couches other statements in her declaration with similar qualifying language.
The evidence indicates that plaintiff’s CreditWise account was created on Sept. 6, 2018, and that there was no means of enrolling in CreditWise without agreeing to the CreditWise terms and conditions, which included the forum selection clause. Plaintiff does not contend that she did not enroll in CreditWise or that she somehow enrolled in CreditWise without accepting the terms and conditions. Instead, plaintiff appears to simply not remember whether she enrolled in CreditWise, and asks the court to credit her retrospective, post-hoc belief that she would not have agreed to any terms and conditions.
However, in the absence of any actual factual dispute as to whether plaintiff enrolled in CreditWise, the court finds that, for the limited purposes of resolving the motion to transfer, the weight of the evidence indicates that when plaintiff accessed CreditWise, she necessarily agreed to the CreditWise terms and conditions, including the forum selection clause.
Plaintiff does not dispute that the forum selection clause — which states that the parties “irrevocably and unconditionally submit to the jurisdiction and venue of the United States District Courts for the Eastern District of Virginia” — is mandatory. Accordingly, as the party defying application of the mandatory, agreed-to forum selection clause, plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.
Plaintiff primarily argues that transfer is inappropriate because plaintiff resides in Texas, and it would be inconvenient for her to prosecute her case in Virginia. However, such inconvenience would exist in any litigation taking place outside one’s home forum, and accordingly does not constitute “extraordinary” circumstances that would justify disregarding the forum selection clause.
In addition, plaintiff does not meaningfully rebut Capital One’s evidence that administrative difficulties and whether the forum is “at home” with the law favor transfer, in light of the fewer cases pending and shorter time to disposition in the Eastern District of Virginia, in comparison to the Northern District of Texas, and the Supreme Court’s recognition that federal judges routinely apply the law of different jurisdictions.
Defendant’s motion to transfer granted.
Young v. Capital One Bank USA NA, Case No. 3:22-cv-00647, Nov. 18, 2022. NDTX at Dallas (Lynn). VLW 022-3-532. 8 pp.