Bradley v. Google, Inc. et al

Filing 23

Reply Memorandum re 12 MOTION to Dismiss Amended Complaint filed byGoogle, Inc., Google AdSense. (Shen, Andrew) (Filed on 12/7/2006)

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Bradley v. Google, Inc. et al Doc. 23 Case 3:06-cv-05289-WHA Document 23 Filed 12/07/2006 Page 1 of 4 1 KEKER& VANNEST, LLP ASHOK RAANI - #200020 2 ANDREW N. SHEN - #232499 710 Sansome Street 3 San Francisco, CA 94111-1704 Telephone: (415) 391-5400 4 Facsimile: (415) 397-7188 5 Attorneys for Defendants GOOGLE, INC., GOOGLE ADSENSE 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 10 11 12 THERESA B.BRADLEY, Psy.D./JD, 13 Case No. C-06-05289- WHA Plaintiff, v. REPLY IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS AMENDED 14 COMPLAINT SENSE, Date: Time: Dept: Judge: December 21, 2006 8:00 a.m. 15 GOOGLE, INC., GOOGLE AD 16 Defendants. 17 18 Courtroom 9 The Hon. WiliamH. Alsup Date Compo Filed: August 28, 2006 Trial Date: TBD 19 20 21 22 23 24 25 26 27 28 1 385829.01 REPLY IN SUPPORT OF DEFENDANTS' MOTION AND MOTION TO DISMISS AMENDED COMPLAINT CASE NO. C-06-05289-WH Case 3:06-cv-05289-WHA Document 23 Filed 12/07/2006 Page 2 of 4 1 INTRODUCTION 2 Dr. Bradley's opposition does not dispute a single argument advanced in Google's 3 opening presentation. Instead, Dr. Bradley tries to offer new facts-that she allegedly would not 4 have violated her agreement with Google AdSense had she seen the materials submitted with 5 Google's motion, and that Google and its counsel concocted those documents to disadvantage 6 her case. See, e.g., Plaintiffs Response to Defendants' Motion to Dismiss at irir 3-8. Setting 7 aside the supermarket-tabloid nature of her accusations, even if true, the new facts do not save 8 her causes of action from their legal defects. If anything, Dr. Bradley's new assertions further 9 undermine her case, because she has admitted that she breached her agreement with Google by 10 clicking on advertisements shown on her website. 11 Dr. Bradley also has not disputed Google's description of her repeated, nationwide filing 12 of what amounts to vexatious litigation. Google respectfully urges this Court to take Judge jurisdiction, Bradley v. Yahoo, Inc., and 13 Whyte's example in Dr. Bradley's other frolic in this 14 dismiss the instant case. 15 ARGUMENT 16 A. 17 18 Dr. Bradley offers no reason to deny Google's motion to dismiss. Defendants' motion to dismiss provided the Cour with a variety of legal arguments highlighting the insuffciencies of plaintiff s claims. Even the most charitable review of plaintiff s response demonstrates that she has not responded to any of those arguments. 19 20 21 Instead, Dr. Bradley chooses to offer new factual assertions. Notably, she does not so much as mention the core factual allegations found in her amended complaint, that she was duped by allegedly false advertising, that Google entered her Gmail account and deleted email in retaliation for her having fied this case, or even that she was unable to access the websites of 22 23 her 24 25 supposed "competitors" without clicking on their advertisements. Dr. Bradley has seemingly abandoned her amended complaint altogether. The thrst of 26 27 28 Dr. Bradley's opposition is that defendants have purosefully hidden the Google AdSense Online Standard Terms and Conditions, see Defendants' Request for Judicial Notice ("RJ"), Exh. A, until confronted with her complaint. But in its consideration of a Rule 2 385829.01 REPLY IN SUPPORT OF DEFENDANTS' MOTION AND MOTION TO DISMISS AMENDED COMPLAINT CASE NO. C-06-05289-WH Case 3:06-cv-05289-WHA Document 23 Filed 12/07/2006 Page 3 of 4 1 12(b)(6) motion to dismiss, "conclusory allegations and unwaranted inferences are insufficient 2 to defeat a motion to dismiss for failure to state a claim." County of Santa Clara v. Astra u.s., 3 Inc., 428 F. Supp. 2d 1029, 1032 (N.D. CaL. 2006) (Alsup, J.) (quotations omitted). Dr. Bradley 4 does not explain what exactly she did see when she agreed to the AdSense Terms and 5 Conditions, .nor does she explain exactly what provisions from the version Google submitted 6 differed from what she had seen. Thus, the Court should reject Dr. Bradley's conclusory factual 7 allegations. 8 B. Plaintiff has not denied her history of vexatious litigation. has fied meritless cases across 9 As described in defendants' motion to dismiss, plaintiff 10 the country, harassing a multitude of private individuals, governental entities, and businesses. 11 Plaintiff has not disputed defendants' description. Nor could she. Indeed, her other venture into 12 this federal district recently ended in dismissal-on November 22,2006, Judge Whyte dismissed 13 plaintiffs case against Yahoo, Bradley v. Yahoo, Inc., No. 06-04662, for failure to pay her filing 14 fee and summarily entered judgment for defendant, after having granted Yahoo's motion to 15 dismiss Dr. Bradley's complaint a few weeks earlier. Thus, on yet another instance, plaintiffs 16 abusive litigation efforts has wasted the valuable time and resources of a federal district court. 17 Defendants again urge the Court, if it grants the instant motion to dismiss, to refuse to grant 18 leave to amend - an option well within its discretion. See Grimes v. Sprint PCS, 2001 WL 20 CONCLUSION 21 For the foregoing reasons, the Court should grant Defendants' motion to dismiss 22 amended complaint without leave to amend. 23 Dated: December 7,2006 19 35036 *2 (N.D. CaL. Jan. 2, 2001). KEKER & VAN NEST, LLP 24 25 By: Isl Ashok Ramani 26 27 28 3 385829.01 REPLY IN SUPPORT ASHOK RAMANI Attorneys for Defendants GOOGLE, INC., GOOGLE AD SENSE OF DEFENDANTS' MOTION AND MOTION TO DISMISS AMENDED COMPLAINT CASE NO. C-06-05289-WH Case 3:06-cv-05289-WHA Document 23 Filed 12/07/2006 Page 4 of 4 1 PROOF OF SERVICE 2 3 4 5 I am employed in the City and County of San Francisco, State of Californa in the office of a member of the bar of this court at whose direction the following service was made. I am over the age of eighteen years and not a party to the within action. My business address is Keker & Van Nest, LLP, 710 Sansome Street, San Francisco, California 94111. On December 7, 2006, I served the following document: Reply in Support of 6 7 8 Defendants' Motion to Dismiss Amended Complaint 9 10 11 by regular UNITED STATES MAIL by placing a true and correct copy in a sealed envelope Keker & Van Nest, LLP for addressed as shown below. I am readily familiar with the practice of collection and processing of correspondence for mailing. According to that practice, items are deposited with the United States Postal Service at San Francisco, California on that same day with postage thereon fully prepaid. I am aware that, on motion of the pary served, service is presumed invalid if the postal cancellation date or the postage meter date is more than one day after the date of deposit for mailing stated in this affidavit; and by EMAIL via PDF, by transmitting a true and correct copy scanned into an electronic file in Adobe "pdf' format to the email address below. Theresa B. Bradley 4500 Connecticut Avenue NW, Suite 309 Washington, DC 20008 Email: bravacorp( 12 13 14 15 16 17 18 Executed on December 7, 2006, at San Francisco, Californa. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 19 0''. ri t°( .~~ ' l; \On CA- W/J l \AI 'žjc 20 21 Robert W. Thomas 22 23 24 25 26 27 28

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