Texas judge says florist case must be tried in New York

Marilyn Tennissen Oct. 16, 2007, 8:22am

A Houston man sent a bouquet of roses to his girlfriend, and then sued the florist for letting his wife find out. But a federal judge in Texas dismissed the case on Oct. 15, leaving the man with the option to refile his suit in another state.

U.S. District Judge Nancy Atlas of the Southern District of Texas dismissed the suit by Leroy Greer of Houston against 1-800-flowers.com. Atlas said Greer can refile in New York where the florist is located.

Greer filed the federal suit against 1-800-flowers.com in August in the Southern District of Texas. His complaint alleged that in April he called and ordered long-stemmed red roses and a stuffed animal for his girlfriend. Greer claims he was promised that the florist would send nothing to his home regarding the transaction.

But 1-800-flowers.com sent a discount coupon and a thank-you card to Greer's house, where it was seen by Greer's wife. The couple is separated and has had a divorce pending in Fort Bend County since 2005.

When Mrs. Greer saw the card, she called the florist and was faxed a copy of the receipt, which contained the name of the woman that Greer was seeing.

She also saw the message on the card that accompanied the flowers: "Just wanted to say that I love you and you mean the world to me! Leroy."

Greer's wife then faxed the copy of the receipt to him at work and included her own note: "Be a man! If you got caught red handed then don't still lie."

Greer alleges that the florist breached the contract made when he called and ordered the flowers and broke its own privacy policy. He is asking the company to pay for his mental anguish and for the increased amount he believes he will have to pay in his divorce case, now that his wife has proof of his relationship with another woman.

Judge Atlas found that if Greer wants to argue that 1-800-flowers.com is in breach of contract, then he is also subject to the contract. The company's Terms of Use, posted on its Web site, requires users to file claims against the company in Nassau County, N.Y., or in neighboring Suffolk County, N.Y.

Greer "was given notice that the privacy policy, on which he claims to have been relying when purchasing flowers for his girlfriend, was part of a broader terms-of-use which he apparently chose not to review," Atlas wrote. "Had he done so, he would have been given notice - on the first page and in all capital letters - that by accessing the Web site he agreed to be bound by the Terms of Use and that any 'claim relating to the Web site' or its content was subject to a forum selection clause."

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