Miller v. Facebook, Inc. et al

Filing 120

MOTION for Summary Judgment RE FIRST COUNTERCLAIM FOR BREACH OF CONTRACT filed by Facebook, Inc.. Motion Hearing set for 4/7/2011 08:00 AM in Courtroom 9, 19th Floor, San Francisco before Hon. William Alsup. (Attachments: # 1 Proposed Order)(Avalos, Julio) (Filed on 3/3/2011) Modified on 3/4/2011 (wsn, COURT STAFF).

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Miller v. Facebook, Inc. et al Doc. 120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. NEEL CHATTERJEE (State Bar No. 173985) nchatterjee@orrick.com JULIO C. AVALOS (State Bar No. 255350) javalos@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, California 94025 Telephone: +1-650-614-7400 Facsimile: +1-650-614-7401 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION DANIEL M. MILLER, Plaintiff, v. FACEBOOK, INC. and YAO WEI YEO, Defendants. Case No. 3:10-CV-00264 (WHA) NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES FOR SUMMARY JUDGMENT OF FACEBOOK'S FIRST COUNTERCLAIM FOR BREACH OF CONTRACT Date: Time: Court: Judge: April 7, 2011 8:00 A.M. Courtroom 9, 19th Floor Honorable William Alsup FACEBOOK'S NOM & MSJ RE COUNTERCLAIMS CASE NO.: 3:10-CV-00264 (WHA) Dockets.Justia.com 1 2 3 4 NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 7, 2011 at 8:00 a.m. or as soon thereafter as the matter may be heard, in the courtroom of the Honorable William Alsup, United States District 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 FACEBOOK'S NOM & MSJ RE COUNTERCLAIMS CASE NO.: 3:10-CV-00264 (WHA) Court, 450 Golden Gate Avenue, San Francisco, CA 94102, Facebook, Inc. ("Facebook") will move the court for summary judgment on Facebook's first counterclaim for breach of contract against Counterdefendant Daniel M. Miller ("Miller"). This motion is based on the Notice of Motion and Motion, the supporting Memorandum of Points and Authorities, the Declaration of Krista Holt filed in support thereof, the Declaration of Julio C. Avalos in support thereof, all pleadings on file in this action, and any other matter that may be submitted at the hearing. Dated: March 3, 2011 ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Julio C. Avalos Julio C. Avalos Attorneys for Defendant FACEBOOK, INC. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Counter-Plaintiff Facebook, Inc. ("Facebook") moves this court for Summary Judgment with respect to its first counterclaim for breach of contract. The facts here are simple, undisputed, and, in large part, already law of the case. Counter-Defendant Daniel M. Miller ("Miller") became a registered Facebook user on February 12, 2006. As a condition of registering, Miller agreed to Facebook's Terms of Use. In so doing, Miller contractually agreed that if any dispute arose between Miller and Facebook about or involving Facebook, "you [Miller] agree that the dispute will be governed by the laws of the State of California ...[and] you [Miller] also agree to the exclusive jurisdiction and venue of the courts of the state and federal courts of Santa Clara County, California." In breach of this term, Miller subsequently sued Facebook in the Northern District of Georgia on an alleged dispute "about or involving Facebook." On January 15, 2010, the Honorable Judge Vining found that Miller had agreed to the forum-selection provision, that the provision was enforceable against Miller, and consequently transferred this matter here to this Court. It follows from these findings that Miller breached his contract with Facebook by suing Facebook in an improper forum. Because no material facts are disputed, Facebook is entitled to summary judgment and a finding of liability on its breach of contract counterclaim. II. STATEMENT OF UNISPUTED MATERIAL FACTS A. Miller's Breach Of Facebook's Terms Of Use Miller registered for a Facebook account on February 12, 2006. See Dkt. 71, Facebook's Answer to Plaintiff's Second Amended Complaint and Counterclaims ("Counterclaims") at 15; see also Dkt. 111, 2. In doing so, Miller agreed to Facebook's Terms of Use. Id; see also Dkt. 17 at 2 ("The plaintiff [Miller] does not dispute that he agreed to the terms of the [Terms of Use]"). Despite agreeing to the Terms of Use and its requirement that disputes about or involving Facebook be pursued, if at all, in California, on October 9, 2009, Miller initiated this action against Facebook in the Northern District of Georgia. Dkt. 1. Facebook subsequently moved to enforce the parties' forum selection clause and thus transfer the case to the Northern District of California. Dkt. 13. 1 FACEBOOK'S NOM & MSJ RE COUNTERCLAIMS CASE NO.: 3:10-CV-00264 (WHA) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On January 15, 2010, the Court granted Facebook's motion to enforce the forum selection provision. Dkt. 17. In so doing, the Court noted that Miller "does not dispute that he agreed to the [Terms of Use]." Id. at 2. It then ruled that Facebook's Terms of Use was an enforceable contract, that the forum-selection clause was an enforceable contract term that the parties had agreed to, that Miller's complaint fell within the scope of that clause, and that the case should therefore be transferred to this Court. Id. at 3-4. III. ARGUMENT A. Summary Judgment Standard Summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "Material facts are those which may affect the outcome of the case." ViCHIP Corp. v. Lee, 438 F. Supp.2d 1087, 1092-93 (N.D. Cal. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment." Greenwich Ins. Co. v. Media Breakaway, LLC, No. CV08-937 CAS (CTx), 2009 U.S. Dist. LEXIS 63454, at *13 (C.D. Cal. Jul. 22, 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "If the moving party has sustained its burden, the nonmoving party must then identify specific facts, drawn from materials on file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested." Id. at *13 -14, citing Fed. R. Civ. P. 56(c). Based upon the uncontested facts from the pleadings and from Miller's testimony, there are no material facts in dispute. B. Miller Breached His Contract With Facebook. This is a simple breach of contract matter. To prevail on such a claim, Facebook must establish: (1) the existence of a contract, (2) Facebook's performance or excuse for nonperformance, (3) Miller's breach, and (4) the resulting damages to Facebook. See Andrew Smith Co. v. Paul's Pak, Inc., No. C-08-048202 RMW, 2010 U.S. Dist. LEXIS 122023, at *4-5 (N.D. Cal. 2010) (citing Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1367 (2010)). -2FACEBOOK'S NOM & MSJ RE COUNTERCLAIMS CASE NO.: 3:10-CV-00264 (WHA) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Based on the undisputed facts, Facebook has established all the elements for its breach of contract claim against Miller. First, it is undisputed that Miller is a registered Facebook user and that he agreed to the Terms of Use contract. See Dkt. 111, 2; Dkt. 17 at 2. It is further undisputed--and indeed law of the case--that the Terms of Use is a contract that is valid and enforceable against Miller in this litigation. Dkt. 17 at 3 ("[i]t is standard contract doctrine that when a benefit is offered subjected to stated conditions, and the offeree makes a decision to take the benefit with the knowledge of the terms of the offer, the taking constitutes an acceptance of the terms, which accordingly become binding to the offeree") (citing Register.com, Inc., v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004) (finding defendant's online terms of service binding on plaintiff where "benefit [was] offered subject to stated conditions, and the offeree [made] a decision to take the benefit with knowledge of the terms of the offer") (other citations omitted). The law of the case doctrine requires this Court to recognize and adopt issues previously decided in the same litigation, including those relating to contract enforcement. See DiSimone v. Browner, 121 F.3d 1262, 1266-67 (9th Cir. 1997) ("no litigant deserves an opportunity to go over the same ground twice, hoping that the passage of time or changes in the composition of the court will provide a more favorable result the second time"); Shum v. Intel Corp., No. C-02-03262-DLJ, 2008 U.S. Dist. LEXIS 83005 (N.D. Cal. Sept. 26, 2008) (court found that where it had already made several pretrial rulings on the meaning of contract terms, they remained "law of the case"); see also Maxit Designs, Inc. v. Coville, Inc., No. CIV. S-05-1040 WBS DAD, 2006 U.S. Dist. LEXIS 68838 (E.D. Cal. Sept. 25, 2006) ("law of the case" doctrine applied to enforce arbitration clause found in numerous contracts between the parties where the court had previously enforced an identical arbitration clause in a different contract between the parties). Second, there is no dispute regarding Facebook's performance; Miller has enjoyed access to Facebook since 2006 (including access to Facebook's Platform where he made at least one application available presumably for profit) and has testified that he is today an active Facebook user. See Declaration of Julio Avalos, Ex. A. -3- FACEBOOK'S NOM & MSJ RE COUNTERCLAIMS CASE NO.: 3:10-CV-00264 (WHA) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Third, there is no dispute that Miller breached the forum selection clause he initiated this action in Georgia rather than California. Dkt. 1. The Georgia court's decision to transfer this case to this court definitively establishes that Miller breached the parties' forum-selection clause when he sued where he did, and, as the court in E & J Gallo Winery v. Andina Licores S.A., 440 F. Supp. 2d 1115, 1132 (E.D. Cal. 2006), held, a breach of a forum-selection clause constitutes breach of contract. Finally, Facebook was harmed by the breach, in that it expended considerable time and resources, including attorneys' fees and costs, in order to enforce the contract and transfer this case to the agreed-upon jurisdiction. Id. at *9 (awarding attorney fees and costs in defending action filed in Ecuador); see also Declaration of Krista Holt ("Holt Decl."). IV. CONCLUSION For the foregoing reasons, Facebook respectfully requests that the Court grant Facebook's Motion for Summary Judgment on its first breach of contract counterclaim. Dated: March 3, 2011 ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Julio C. Avalos Julio C. Avalos Attorneys for Defendant FACEBOOK, INC. -4- FACEBOOK'S NOM & MSJ RE COUNTERCLAIMS CASE NO.: 3:10-CV-00264 (WHA)

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