eBay User Agreement Upheld–Nazaruk v. eBay

By Eric Goldman

Nazaruk v. eBay, 2006 WL 2666429 (D. Utah Sept. 14, 2006)

Another lawsuit involving the eBay feedback forum. In this case, the pro se plaintiff alleges that eBay and the feedback submitter deprived her of her civil rights (per 42 USC 1983 and 1985) because the posted feedback denigrated her national origin. eBay moved to dismiss on several grounds, including improper venue based on the mandatory California venue clause in eBay’s user agreement. The court says that the plaintiff became bound by the mandatory clickthrough user agreement when she registered with eBay, so the court makes short work of her arguments, finding eBay’s contract valid, the mandatory venue clause binding and the venue inappropriate.

As a result of the dismissal based on venue, the plaintiff can refile in CA (an unlikely development given her pro se status, but weirder things have happened). I’m sure eBay would have preferred to shut down this lawsuit definitively, but on the bright side, eBay has to like having another court bless its contract and the mandatory venue clause. The other cases I know of: Bergraft, Grace (now depublished) and Ploharski–so this may be the first (currently) published case upholding eBay’s contract/clause.

At the same time, the court had the ability to dismiss this lawsuit entirely on 47 USC 230 grounds (see here and here). If the plaintiff chooses to refile, her prospects of success are very, very dim…and I see an anti-SLAPP motion in her future.