Doe v. Mg Freesites Ltd

1

JANE DOE, on behalf of herself and all others similarly situated, Plaintiff, v. MG FREESITES, LTD, d/b/a “PORNHUB”, a foreign entity; MG FREESITES II LTD, a foreign entity; MINDGEEK, S.A.R.L., a foreign entity; MINDGEEK USA, INCORPORATED, a Delaware corporation; MG CY HOLDINGS LTD, a foreign entity; MINDGEEK CONTENT RT LIMITED, a foreign entity; 9219-1568 QUEBEC INC. d/b/a MINDGEEK, a foreign entity; MG BILLING LTD, a foreign entity, Defendants.

No. 7:21-cv-00220-LSC

United States District Court, N.D. Alabama, Western Division

March 9, 2024

MEMORANDUM OF OPINION AND ORDER

L Scott Coogler United States District Judge

Before this Court is Defendants' Motion to Transfer Venue to the U.S. District Court for the Central District of California. (Doc. 160). Plaintiff has responded in opposition to the motion. (Doc. 171.) Defendants filed a reply in support. (Doc. 174.) For the reasons set forth below, the motion is due to be denied.

I. BACKGROUND^[1]

This is a class action asserting claims against a group of interrelated entities that own and operate www.Pornhub.com and other pornography websites alleging that the entities illegally received, distributed, and benefitted from child sex abuse material (“CSAM”) that they made publicly available for viewing on their websites.

On February 11, 2021, Plaintiff initiated this action against Defendants MG Freesites LTD d/b/a “Pornhub,” MG Freesites II LTD, Mindgeek S.A.R.L., Mindgeek USA Incorporated, MG CY Holdings LTD, Mindgeek Content RT Limited, 9219-1568 Quebec Inc. d/b/a Mindgeek, and MG Billing LTD (collectively, “MindGeek”). Eight days later, a different plaintiff in California filed a class action complaint against all but two of the same MindGeek defendants, asserting the same federal claims as this action and additional California state law claims. Doe v. MindGeek USA, Inc., No. 8:21-cv-00338-CJC-ADS (C.D. Cal.).

The parties have actively litigated these actions for the past three years. MindGeek brought and lost motions to dismiss the complaints in both cases, the parties have conducted considerable discovery in their respective cases, MindGeek has produced more than 95,000 documents in both cases, the parties have conducted multiple depositions throughout the United States and Canada. In this case, the Court has implemented a CSAM discovery protocol enlisting the Alabama Attorney General's Office as the repository for CSAM or suspected CSAM in MindGeek's possession. The Court is not aware of a similar protocol in the California action.

On August 29, 2023, Plaintiff filed a motion to intervene in the California action, seeking to stay or transfer the California action to this Court pursuant to the first-to-file rule. MindGeek neither opposed nor supported the motion. On September 28, 2023, the California court denied Plaintiff's motion, finding that the motion was untimely because the California plaintiff had “amended her complaint multiple times and substantially defeated Defendants' motion to dismiss,” the parties had “undertaken significant discovery, and the Court ha[d] addressed related disputes,” and because the Alabama plaintiff waited over two years to seek a stay or transfer of the California action. See California action, Doc. 160 at 6, 8. The California court also noted the prejudice the California plaintiff would suffer should her case be transferred to this district, explaining that “forc[ing her] to litigate in Alabama, a forum she did not choose, thousands of miles away” would “impose[] unreasonable burdens and expenses on her.” Id. at 8.

On November 17, 2023, the California court granted class certification in the California action. On December 19, 2023, this Court granted class certification in this case. In both cases, MindGeek filed petitions for permission to appeal the class certification rulings pursuant to Fed.R.Civ.P. 23(f). The Ninth Circuit denied MindGeek's Rule 23(f) petition in the California action on January 23, 2024, and the Eleventh Circuit denied MindGeek's Rule 23(f) petition in this case on February 12, 2024. The California court recently approved a notice plan and opt-out procedure for the class. Plaintiff filed a motion for approval of her notice plan in this case on March 6. (Doc. 179.)

Fact discovery is set to conclude within the month. Trial is scheduled for August 20, 2024, in the California action (see California action doc. 99 at 2), and although Plaintiff has requested an expedited schedule, trial is currently set for late December 2024. (Doc. 66.) MindGeek now seeks transfer of this action to California under 28 U.S.C. § 1404(a).

II. LEGAL STANDARD

“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). The decision to transfer a case is left to “the sound discretion of the trial court,” Brown v. Connecticut Gen. Life Ins. Co., 934 F.2d 1193, 1197 (11th Cir. 1991), and should be based upon “an individualized, case-by-case consideration of convenience and fairness,” S. Mills, Inc. v. Nunes, 586 Fed.Appx. 702, 705 (11th Cir. 2014) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).

To assess transfer under § 1404(a), courts in the Eleventh Circuit employ a two-part test: (1) whether the plaintiff could have filed the action in the venue to which the defendant seeks transfer; and (2) whether the balance of convenience to the parties and the interest of justice favors transfer. Cook v. Publix Supermarkets, Inc., 2020 WL 13157798, at *1 (N.D. Ala. Apr. 24, 2020). Where instructive, courts consider the following nine factors in applying the two-part test: (1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances. See Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005).

III. DISCUSSION

Plaintiff does not dispute that this case could have been brought in the Central District of California, thus satisfying the first requirement under § 1404(a). However, for the following reasons, the Court finds that the second factor-whether the balance of convenience to the parties and the interest of justice favors transfer- is not met here.

1. the convenience of witnesses

This factor is neutral, as neither party identifies any witnesses who would be inconvenienced by the Alabama or California forum.

2. the location of relevant documents and the relative ease of access to sources of proof

This factor weighs heavily against transfer to California. MindGeek cites Halbert v. Credit Suisse AG, 358 F.Supp.3d 1283 (N.D. Ala. 2018), in which the district court noted that “the physical location of [] documents is no longer a significant factor in the transfer analysis” given “‘the predominance of electronic discovery in the modern era[.]'” Id. at 1287. MindGeek argues that since the documents are electronic, Plaintiff will have equal ease of access to evidence in California as here.

Not so. As noted, this Court has established a CSAM discovery protocol, appointing the Alabama Attorney General's Office as the repository for CSAM and suspected CSAM that MindGeek possesses or controls, and MindGeek's counsel has confirmed that MindGeek already has begun to produce CSAM to the Alabama Attorney General pursuant to that protocol. This Court is not aware of a similar CSAM discovery protocol in the California action, and Plaintiff states that MindGeek has not produced any CSAM or suspected CSAM in discovery in the California action whatsoever. This is not an ordinary case where the parties can easily transport all relevant documents to California. If this case were transferred to California, it is unclear whether or how the Alabama CSAM protocol and the discovery of CSAM would be handled in the California court, including whether the California court would have the same interest in working with, the Alabama Attorney General in this regard. Therefore, because transferring this action would create a litany of issues regarding the CSAM currently in the Alabama Attorney General's possession, this factor weighs significantly against transfer. Cf. Operating Sys. Sols., LLC v. Apple Inc., 2012 WL 12906518, at *3 (M.D. Fla. Jan. 30, 2012) (location of relevant documents factor weighed against transfer where protective order “explicitly designate[d] New York as the location for discovery” and “New York is closer to this district than the Northern District of California”).

3. the convenience of the parties

This factor weighs against transfer to California. Plaintiff would undoubtedly be inconvenienced if this action is transferred across the country to California. Plaintiff resides in Alabama and chose to file this action in her home state. Moreover, none of the attorneys representing Plaintiff are located, or barred, in California, so Plaintiff's counsel would have to retain local counsel, who would have to familiarize themselves with the case. See Abreu v. Pfizer, Inc., 2022 WL 2355541, at *19 (S.D. Fla. June 22, 2022) (allowing the court to consider “to some extent, the appearance of counsel” in considering the “convenience of the parties” factor in the transfer analysis, and stating, “Plaintiff's counsel does not reside in...