Motise v. AOL

Citation: Motise v. America Online, Inc., 346 F.Supp.2d 563 (S.D.N.Y. 2004).

Factual Background
Plaintiff, Michael Motise, used AOL services to sign his stepfather, Joeseph Perretta, up for an AOL account. Plaintiff alleges that after signing up for the account, AOL unlawfully released his screen name “aaa12465” on a listserv that was “illegally publishing private information about the Plaintiff, including daily transcripts of electronic eavesdropping of his private telephone conversations and other activities at his home in Pennsylvania."

As part of the sign-up process, the plaintiff was required to accept the America Online Member Agreement, which stated that by initiating an AOL membership or using AOL products members agree to be bound by the Member Agreement. Furthermore, "[users] expressly agree that exclusive jurisdiction for any claim or dispute arising out of AOL membership services . . . resides in the courts of Virginia. . . ."

Trial Court Proceedings
Motise brought suit against AOL in the U.S. District Court in the Southern District of New York. AOL moved to dismiss the case for improper venue or, in the alternative transferred to the proper venue.

At trial, the district court looked to see if Motise was subject to the forum selection clause in AOL’s Member Agreement and, if so, whether dismissal of the case was warranted for improper venue. First, the court had to determine whether Motise, a third-party user of AOL’s software, was subject to the forum selection clause found in the Member Agreement. In reaching the conclusion that he was, the court determined that allowing the plaintiff to escape the terms of service merely because he was acting on behalf of his stepfather would have the effect of giving him greater rights than actual users of the service. Allowing Motise to escape enforcement of the forum selection clause would encourage individuals to avoid AOL’s Member Agreement simply by having third parties create accounts and then use them as the plaintiff did. For this reason, the trial court determined that Motise was subject the forum selection clause in the Member Agreement in the same manner that his stepfather would be.

Since the forum selection clause was applicable, the court’s next task was to determine whether AOL’s motion to dismiss should be granted. The court determined that the plaintiff’s clear preference for litigating his case in federal court coupled with the convenience of transferring the case to a Virginia court, where AOL’s headquarters and most of AOL’s witnesses would be, would be in the interest of justice. Therefore, dismissal was not warranted and the case was transferred to the U.S. District Court for the Eastern District of Virginia.