With the parties' consent, on March 20, 2002, this case has been referred and reassigned to the

undersigned for all purposes, including trial and the entry of judgment, pursuant to 28 U.S.C. §636(c).

America Online, Inc.'s Statement of Undisputed Facts (Local Rule 56.1) (#48),

Defendant America Online, Inc.'s Memorandum in Support of its Motion for

Summary Judgment on the Forum Selection Clause (#49), the Declaration of

Carrie Davis (#51) and the Appendix to Defendant America Online, Inc.'s

Memorandum in Support of its Motion for Summary Judgment on the Forum

Selection Clause (#50). Although the period for opposing the motion has elapsed

under D. Mass., Local Rule 7.1(B)(2), Hughes has not filed an opposition. AOL's

motion (#47) is in a posture for resolution. For the reasons stated in section IV,

infra, the Court will treat AOL's summary judgment motion as a motion to

dismiss for failure to state a claim upon which relief may be granted pursuant to

Fed. R. Civ. P. 12(b)(6).

II. THE STANDARD

The standard to be applied when deciding a motion to dismiss under Rule

12(b)(6), Fed. R. Civ. P., has often been repeated. It is incumbent upon the court

to "accept the complaint's allegations as true, indulging all reasonable inferences

in favor of [the plaintiff]." Kiely v. Raytheon Co., 105 F.3d 734, 735 (1 Cir.,

1997); Hogan v. Eastern Enterprises/Boston Gas, 165 F. Supp. 2d 55, 57 (D.

Mass., 2001). Indeed, more than forty years ago the Supreme Court declared

that "a complaint should not be dismissed for failure to state a claim unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46

(1957).

Pursuant to Fed. R. Civ. P. 10(c), "[a] copy of any written instrument

which is an exhibit to a pleading is a part thereof for all purposes." Similarly,

when "a complaint's factual allegations are expressly linked to – and admittedly

dependent upon – a document (the authenticity of which is not challenged), that

document effectively merges into the pleadings and the trial court can review it

in deciding a motion to dismiss under Rule 12(b)(6)." Beddall v. State St. Bank

and Trust Co., 137 F.3d 12, 17 (1 Cir., 1998); see also Blackstone Realty LLC v.

Federal Deposit Insurance Corporation, 244 F.3d 193, 195 n.1 (1 Cir., 2001).

III. THE FACTS

On June 8, 2001, Hughes filed suit against AOL and Officer Thomas

McMenamon of the Methuen Police Department, alleging various causes of acting

arising from AOL's release of Hughes' name, address and age to Officer

McMenamon. Complaint (#1) ¶¶22, 45-104. AOL released the information in

response to a request from Officer McMenamon, who had received a print-out of

a threatening electronic mail message ("e-mail") allegedly sent from an AOL

account. #1 ¶¶19, 21.

At all times relevant to this action, AOL provided e-mail service to Hughes.

#1 ¶¶18, 41. The Terms of Service contract pursuant to which AOL provides email

service to its members consists of three portions: the Member Agreement, the

Community Guidelines, and the Privacy Policy. #10, Exh. B, C, D; #51, Exh. A.

Section 8 of the Member Agreement includes a forum selection clause which reads

as follows: "You expressly agree that exclusive jurisdiction for any claim or

dispute with AOL or relating in any way to your membership or your use of AOL

resides in the courts of Virginia . . . ." #10, Exh. B; #51, Exh. A.

IV. DISCUSSION

AOL originally filed a Fed. R. Civ. P. 12(b)(6) motion (#9) alleging

grounds for dismissal including the forum selection clause. Hughes filed a

document titled "Plaintiff's Motion to Defer a Hearing on America Online, Inc.'s

Motion to Dismiss" (#14). In an abundance of caution and in consideration of

the pro se status of the plaintiff, the Court construed that document as

questioning the authenticity of the document which AOL alleged to be the contract

between the parties. See Johnson v. Rodriguez, 943 F.2d 104, 107 (1 Cir.,

1991), cert. denied, 502 U.S. 1063 (1992) (construe pro se pleadings liberally).

In an Order dated March 29, 2002, the Court denied AOL's motion to dismiss

without prejudice to filing a motion supported by evidence satisfying the

requirements of Fed. R. Civ. P. 56(e). #44.

AOL responded by filing a summary judgment in which it seeks dismissal

of the claims asserted against it based on the forum selection clause. Hughes did

not file an Opposition, or any other document disputing the authenticity of the

document alleged to be the contract between the parties. The contract is integral

to the claims made in the Complaint, and its content is relied upon therein. See

#1 ¶¶17, 18, 41, 44. Accordingly, the Court may consider the entirety of the

contract as part of the pleadings. Beddall, 137 F.3d at 17; see also Blackstone

Realty LLC, 244 F.3d at 195.

In the First Circuit, a motion seeking dismissal of an action for failure to

comply with a forum selection clause is considered a motion to dismiss for failure

to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). See Silva v. Encyclopedia

Britannica Inc., 239 F.3d 385, 387 (1 Cir., 2001). The proper remedy for an

action which is filed in disregard of a valid forum selection clause is dismissal of

the action. See Silva, 239 F.2d at 389; LFC Lessors, Inc. v. Pacific Sewer

Maintenance Corp., 739 F.2d 4, 8 (1 Cir., 1984). Now that it is clear there is no

dispute as to the contract between the parties, the Court will treat AOL's current

motion as being brought pursuant to Fed. R. Civ. P. 12(b)(6). See Lambert v.

Kysar, 983 F.2d 1110, 1112 n.1 (1 Cir., 1993) (treating 12(b)(3) motion

seeking dismissal based on a forum selection clause as a 12(b)(6) motion); see

also Farnham v. Daar, Inc., 184 F. Supp. 809, 812 (W.D. Mo., 1960) (treating

summary judgment motion as motion to dismiss in Fed. R. Civ. P. 17(a) context);

Rosenfeld v. Continental Building Operating Co., 135 F. Supp. 465, 470 (W.D.

Mo., 1955) (same).

"The prevailing view towards contractual forum-selection clauses is that

'such clauses are prima facie valid and should be enforced unless enforcement is

shown by the resisting party to be "unreasonable" under the circumstances.'"

Silva, 239 F.3d at 387(quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S.

1, 10 (1972)). Forum selection clauses of the type used by AOL, sometimes

referred to as "clickwrap" agreements, have been upheld as valid and enforceable.

See, e.g., Caspi v. Microsoft Network, L..L.C., 323 N.J. Super. 118, 126, 732 A.2d

528, 532, cert. denied, 162 N.J. 199, 743 A.2d 851 (1999); Celmins v. America

Online, Inc., 748 So.2d 1041, 1041-42 (Fla. Dist. Ct. App. 1999).

It is undisputed that Hughes agreed to the Terms of Service contract when

he became a subscriber to AOL's services. It is clear from the facts alleged in the

Complaint, taken in the light most favorable to Hughes, that his claims are

"claims or disputes with AOL" which relate to his membership and/or his use of

in the Terms of Service contract is enforceable and Hughes' claims are within its

scope. See #10, Exh. B; #51, Exh. A. Accordingly, Hughes' claims against AOL

fail to state claims upon which relief may be granted and AOL is entitled to their

dismissal, without prejudice to Hughes refiling them in a Virginia court.

V. ORDER

For all the reasons stated, it is ORDERED that Defendant America Online,

Inc.'s Motion for Summary Judgment on the Forum Selection Clause (#47) be,

and the same hereby is, ALLOWED to the extent that the claims against America

Online, Inc. are DISMISSED pursuant to Fed. R. Civ. P. 12(b)(6). The dismissal

is without prejudice to bringing the action against America Online, Inc. in a court

which is in compliance with the forum selection clause of the contract.

____________________________

ROBERT B. COLLINGS

United States Magistrate Judge

May 28, 2002.