United States District Court, N.D. California
ORDER HOLDING IN ABEYANCE DEFENDANTS’ MOTION TO
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
product-liability action involving the sale of human semen
for artificial insemination, one defendant moves to transfer
the action based on a forum-selection clause. For the reasons
stated below, the motion is Held in abeyance, pending limited
discovery regarding the appearance of defendant’s
website at the time in question and plaintiffs’ actual
knowledge of the forum-selection clause.
Jane Doe 1 and Jane Doe 2, a same-sex couple, are San
Francisco residents. In 2004, they registered to use
xytex.com, a website operated by defendant Xytex Corporation.
Xytex, through its website, sold human semen for use in
Corporation posted a written "Site Usage and Information
Agreement" on its website. That agreement could be
accessed from xytex.com by first pulling down a menu
labeled "About Us" on the main toolbar of the
website and then selecting the "Site Usage" button
that appeared in that menu. The "About Us" menu
appeared second in a toolbar of six menus, including
"Home, " "Patient Section, "
"Physicians Info, " "Become a Donor, "
and "XTS: Xytex Tissue Services." The toolbar
appeared in the same location on every page of the site
(Scholer Reply Decl. ¶¶ 2-3).
image of the website as it appeared at the time in question
is reproduced below:
following is an image of the "About Us" pull-down
could browse the website, register for the site, and purchase
Xytex's services without reading or affirmatively
consenting to the terms of the agreement. Section I of the
agreement provided, in pertinent part (Scholer Decl., Exh. B)
(emphasis in original):
I. IMPORTANT! THIS IS A BINDING LEGAL AGREEMENT (this
"Agreement"). PLEASE READ THESE TERMS AND
CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE.
The Agreement governs your use of this site (collectively,
the "Site") and is by and between Xytex Corporation
(referred to herein as "Xytex", "we",
"us", or "our") and you, on behalf of
yourself and the buyer, member or supplier for which your
have registered ("you"). By using, viewing,
transmitting, caching, storing and/or otherwise using the
Site, the services or functions offered in or by the Site
and/or the contents of the Site in any way, you have agreed
to each and all of the terms and conditions set forth below,
and waive any right to claim ambiguity or error in this
Agreement. If you do not agree to each and all of these terms
and conditions please do not use the Site and leave the Site
XV included a choice-of-law and forum-selection provision, as
This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, without
giving effect to any principles of conflicts of law. You
agree that any action at law or in equity arising out of or
relating to the terms of this Agreement shall be filed only
in the state or federal courts located in Richmond County,
Georgia and you hereby consent and submit ...