Parler: “Well THAT didn’t work. Time to try a different court.”

Parler is a self-described “conservative microblogging alternative and competitor to Twitter.” At its height of popularity, it took a notably lax attitude toward the messages that were posted, stating “we prefer that removing community members or member-provided content be kept to the absolute minimum.” 

Beginning around the November election and through the lead up to the January 6 Capital invasion, Amazon Web Services (AWS), the provider of Parler’s cloud computing services, “claims that it received reports that Parler was failing to moderate posts that encouraged and incited violence, in violation of the terms” of its ”acceptable use policy.” After “Parler failed to respond to those concerns in a timely or adequate manner,” AWS suspended Parler’s services on January 10, 2021.

Parler sued AWS on January 11^th in the Western Washington U.S. District Court, asserting a variety of federal and breach of contract claims. Parler also asked for a preliminary injunction to force AWS to resume hosting services while the matter was being litigated.

It took only ten days for the District Court to deny Parler’s injunction request, finding that Parler had met none of the requirements for issuing an injunction. Although the court did not rule specifically on the underlying claims made by Parler, it does not take much reading between the lines to figure out which way the court was leaning.

Parler had a decision to make. It could either let the lawsuit run its course and run the risk of losing, or it could voluntarily dismiss the case. Parler took the latter option on Tuesday. With the District Court case finished, Parler immediately filed suit against AWS in Washington STATE court. This suit repeats a couple of arguments from the Federal suit and adds in others that are specifically related to Washington state law.

There is nothing improper about this maneuver. In fact, there is a term for it—forum shopping. When there is a choice of courts in which to file suit, it makes sense to pick the court where you think you have a greater chance of success. Timing, of course, can be critical. Therefore, dismissing the first case before it was decided on the merits was the correct move. It remains to be seen whether the Washington state court takes a more favorable view of Parler’s arguments.

As an aside, courts understand the reasons for forum shopping and will generally not hold it against a party who chooses a different path in good faith. However, some litigants misuse the process and file meritless litigation in as many places as they can. Courts take a dim view of burdening the legal system and may punish litigants accordingly. This is why Sidney Powell and Lin Wood are facing possible court sanctions for their post-election litigation.