Doe v. Xytex Corp.

          ORDER HOLDING IN ABEYANCE DEFENDANTS’ MOTION TO TRANSFER

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this 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.

         STATEMENT

         Plaintiffs 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 artificial insemination.

         Xytex 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).

         An image of the website as it appeared at the time in question is reproduced below^[1]:

         (Image Omitted)

         The following is an image of the "About Us" pull-down menu:

         (Image Omitted)

         Users 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 immediately.

         Section XV included a choice-of-law and forum-selection provision, as follows:

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 ...