Judicial Notice of Internet Evidence — Wayback Machine — If Judicial Notice Independently Taken by Court, Need to Give Parties Notice Per Rule 201(e)

DistributorsOutlet.com LLC v. Glasstree, Inc., 2016 U.S. Dist. LEXIS 76248 (E.D.N.Y. June 10, 2016):

Plaintiff DistributorsOutlet.com, LLC, an online merchant, brought this action in December 2011 against Glasstree, Inc., a web hosting and design company; two Glasstree principals; and Glasstree Racing LLC (collectively, "Defendants").1 Plaintiff is based in Staten Island and alleges that Defendants, based in Michigan, provided slipshod and incomplete website design services to Plaintiff. Presently before the Court is Defendants' motion to dismiss for forum non conveniens and improper venue. (See Dkts. 67, 68; 5/19/16 Order.) For the reasons set forth below, Defendants' motion is DENIED, subject to Defendants filing an objection by June 17, 2016, to the Court's taking of judicial notice as to certain information relating to [*2]  this dispute.

 

1   In its March 31, 2016 Order, however, this Court dismissed Defendants Carl Brown and Glasstree Racing from the action with prejudice. (See Dkt. 65 at ECF 16, 18.)

 

DISCUSSION

I. Forum Non Conveniens

The Court previously found potentially dispositive the fact that the Terms of Usage policy submitted by Defendants (Dkt. 59-3) contained a forum selection clause providing that "Customer [DistributorsOutlet.com LLC] consents and agrees that venue shall be in Kalamazoo County, Michigan for any action brought with regard to this Agreement." (Dkt. 59-3 at ECF 7; see Dkt. 65 at ECF 18.) Defendants represented that Dkt. 59-3 was "a true and correct copy of the Terms of Usage which were incorporated by reference into both the First Contract and the Second Contract" (i.e., the two contracts executed by Plaintiff that are at issue in this litigation). (Dkt. 59 ¶ 9.) Accordingly, on May 9, 2016, the Court sought additional briefing on whether the Martinez-Starkey factors were met so as to warrant enforcement of the forum selection clause under the doctrine of forum non conveniens. See Atl. Marine Const. Co. v. U.S. Dist. Court for W Dist. of Tex., 134 S. Ct. 568, 580 (2013) ("[T]he appropriate way to enforce a forum-selection clause pointing to a [state forum] is through the doctrine [*3]  of forum non conveniens."); Starkey v. G Adventures, Inc., 796 F.3d 193 (2d Cir. 2015) (setting forth framework for evaluating enforcement of forum selection clauses); Martinez v. Bloomberg LP, 740 F.3d 211, 218 (2d Cir. 2014).

In its opposition, however, Plaintiff asserts that "the terms of service that the defendants rely on did not even exist when the contracts were entered into. They are dated March 23, 2012--some 6 years after the contracts were executed." (Dkt. 68 at ECF 2.) Although Plaintiff offers no evidence of the Terms of Usage that existed in 2006, the Court notes that the Terms of Usage submitted by Defendants is indeed dated "3/23/2012." The Court took the additional step of searching for historical versions of the Terms of Usage used by Defendants at the URL "http://glasstree.com/hosting_terms.asp " using the Internet Archive Wayback Machine (https://archive.org/web/ ). That search reveals that snapshots of the Terms of Usage contract as of July 19, 2006 and August 13, 2006--roughly around the time that the two contracts in question were executed--did not, in fact, contain a forum selection clause. Rather, it appears to the Court that the clause was not added until some time between March 14, 2008 and May 9, 2008.

With respect to its reliance on the Wayback Machine, the Court notes that courts have taken judicial notice of the contents of web pages [*4]  available through the Wayback Machine as facts that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned under Federal Rule of Evidence 201. See, e.g., Hepp v. Ultra Green Energy Servs., LLC, No. 13-cv-4692, 2016 WL 1073070, at *2 & n.1 (N.D. Ill. Mar. 18, 2016); Erickson v. Nebraska Mach. Co., No. 15-cv-1147, 2015 WL 4089849, at *1 n.1 (N.D. Cal. July 6, 2015); Pond Guy, Inc. v. Aquascape Designs, Inc., No. 13-cv-13229, 2014 WL 2863871, at *4 (E.D. Mich. Jun. 24, 2014); In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., MDL No. 1358, 2013 WL 6869410, at *4 n.65 (S.D.N.Y. Dec. 30, 2013); Martins v. 3PD, Inc., No. 11-cv-11313, 2013 WL 1320454, at *16 n.8 (D. Mass. Mar. 28, 2013) (taking judicial notice of "the various historical versions of [a website] available on the Internet Archive at Archive.org as facts readily determinable by resort to a source whose accuracy cannot reasonably be questioned"). However, because under Federal Rule of Evidence 201(e), Defendants are entitled to be heard on the propriety of taking judicial notice of the Wayback Machine, Defendants may submit a letter by June 17, 2016 on this issue. In the absence of such a letter, the Court finds that the 2006 versions of the Terms of Usage that Plaintiff executed did not contain a forum selection clause, and therefore denies Defendants' motion to dismiss under the doctrine of forum non conveniens.2

2   The Court additionally notes that to the extent Defendants rely on the Terms of Usage language that "Glasstree may [*5]  amend, modify or update this agreement or The Terms of Usage Policy at our sole discretion [without notice to the customer], and customer shall be bound by any such amendment, modification or update" to argue that the later-added forum selection clause applies, the Court rejects that language as insufficient to establish that the forum selection clause was "reasonably communicated" to the end-user. See Martinez, 740 F.3d at 218.

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