Xiaoning et al v. Yahoo! Inc, et al

Filing 67

MOTION for More Definite Statement filed by Yahoo! Inc.. Motion Hearing set for 11/1/2007 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Petrocelli, Daniel) (Filed on 8/27/2007)

Xiaoning et al v. Yahoo! Inc, et al

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Case 4:07-cv-02151-CW

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Filed 08/27/2007

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DANIEL M. PETROCELLI ^s.^. ^^a^^o^ï dpetrocelli @ omm.com MATTHEW T. KLINE fs.t^. #z^^^^o^ mkline^a omm.co O'MELVENY & MYERS LLP 1999 Avenue of the Stars , 7th Floor Los Angeles, CA 90067-6035 {31fl} 553-5700 Telephone : Facs^rnile : (310) 24^-6779 Attorneys foc Deferzda^nt YAHOO, INC and Special Appearing Defendant YAHOO! HONG KONG, LTD. UNITED STATES DISTRICT COURT NORTIERN DISTRICT OF CALIFORNIA OAKLAND DIVISION WANG XIAONING, YU LING, SHI TAO, and ADDITIONAL PRESENTLY UNNAMED AND TO BE IDENTIFIED INDIVIDUALS, Plaintiffs, Case No. C07-02151 CW DEFENDANT ^AHOOi, ING'S ALTERNATIVE MOTION FOR A MORE DEFINITE STATEMENT; PROPOSED ORDER Date: Time: linge: November I, 2007 2 p.m. Hon. Claudia Wilken

13 v. 14 YA ^ OO! INC., a Delaware Corporation, YAHOO! HONG KONG, LTD., a Foreign Subsidiary of Yahoo', AND OTHER PRESENTLY UNNAMED AND TO BE IDENTIFIED INDIVIDUAL EMPLOYEES OF SAID CORPORATIONS, Defendants. 19 20 21 TO PLAIN`^IFFS ANDTHEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT ON November ^, 2007, at 2 p.m., defendant Yahool, Inc. ("Yahoo!"} wí11 and Mereby does mave, as an alternatïve to ïts concurrently filed motion to dïsmïss, with prejudice, Plaintíffs' Second Amended Cozxzplaint fir Tort Damages ("complaint"), for a cz^^re definite statement pursuant to Rule 12(e} of the Federal Rules of Cívíl Proced ^re. This motion is based on this notice of motion and mation, the following Memorandum of Points and Authorities, the pleadings ^n file ín this smatter, the reply memorandum Yaho©! intends to file, ard any further argument the Court might allow. Without waiving its objection to the exercise of personal jurisdíctian in this case, specially
C07-D2 ] 5 l C W YAHOOI'S ALTERNATIVE ^ilOTl01`^ FOR A MORE DEFINITE STATEMENT

Location: Courtroom 2

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Dockets.Justia.com

Case 4:07-cv-02151-CW

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appearing defendant Yahoo+. Hong Kong , Ltd. ("YIiKL "} joins this motion. Dated: August 27, 2007 DANSEL M. I?ETR^CELLI MATTHEW T. KLINE O'MELVENY & MYER^ LLP

By: Daniel M. I'etrocelli Attorneys for Defendant Yahoo! Inc and far specially appearíng defendant Yahoo! Hong Kong, Ltd.

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YAOOi'S ALTERNATIVE M©TION FOR A MORE DEFINITE STATEMENT

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I.

DEFENDANTS ARE ENTITLED TO A MORE DEFINITE STATEMENT Defendants believe the entire complaint should be dismissed 'with pre}ud^ce pursuant to

Rule 12(10. However, if the Caurt ís not inclined to dismiss the complaint in its entirety, defendants ask, ire this alternative motion, that ít order a more definite statement pursuant to Rule 12(e}. The pleading rules are liberal, but a "plaintiff rr^ust disclose sufficient ínfaratíor^ to permit the defendant to have a fair understanding of what the plaintiff is complaining about." Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cír. 2000). A. The Camnlaínt Is Fatally Ambí^uuus As Ta What "Facts" Are Alleged.

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The complaint's mast serious defect ís its failure to allege a^ythrng-ever plairtiffs' ^w^ circumstances--as fàet. The first sentence states: "Plaintiffs . , .allege upon personal knowledge ^^d beliefas to their own circ^^mstances, and upon ánfornaatáon a^^d belief ... as to all other matters, that substantial evidentiary suppori exists or wí11 exist ... ín support of the following." Compl. 2:2-^. Every "fact" that "follows]" carries this qual^f^er,' Thís is inappropriate: · "^T]he framers of the rules did not intend to permit a plaintiff to subject a defendant to

the various processes of the court without first stating definite facts upon which a judgment might be based." Fleming v. Dierks Lumber & Cowl Co., 39 F. Supp. 237, 240 {W.D. Ark. 1941). "[I]f a pleader cannot allege definitely and in good faith the existence of an essential elezx^ent o f his claim, it is difficult to see why this basic deficiency should not be exposed at the point of minimum expenditure of tírne and ^naney by the parties and the court." Daves v. Hawaáían Dredging C`o., 114 F. Supp. 643, 645 (D. Haw. 1953}.
· A plaintiffmay base his allegations upon "belief,'' but only when the facts are

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"peculiarly within the knowledge of defendants." ßertucellá v. C^rreras, 467 F.2d 214, 215 {9th Cír. 1972}; 5 CHA^ZL,ES ^^VR1GI-1T & ARTHUR MILLER, FEDERAL, PRAC` `IC AND PI^OCED^^^^E § 1 224 (1990); 2-8 Moo^E's F^^^^^A^J P[^AC^^cE, C^v^t, § 8.04(4) (2007). · And a plaintiff must identify every allegation he makes that lacks evidentiary support.

See QED. R. Clv. P^oc. 11 {b).

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^ Although plaintiffs do, in their most recent amendment, identify some allegations that lack "evidentiary support,'' Compl. ¶ 143, they never disclaim their initial statement.

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The corr^plaint violates all these basic rules. 2 3 4 5 B. The C©^n lai^^t Fails Ade uateív to Alle a Plaintiffs' In'uríes.

Plaintiffs' ATS and TVPA claims are vague and conclusory. For example, even íf plaintiffs could bring torture claims against defendarts--^--and ^efendants vigarously dispute this---it is not enough far plaíntiffs merely to say they were "tortured." Whether conduct amounts to "torture" ís a fact-intensive inquiry. See Qí, 349 F. Supp. 2d at 1278, ^ 316.
Shí alleges no s^ecífic facts-only the bare conclusions that he was tortured, forced to labor, and held at a prison notorious for abuse. See Compl. ^^; 12, 59, 66. Although Wang alleges he has been kept indaors, .malnourished, subjected to "psychological tactics," and was "repeatedly" "beaten" and "kícked" ín the early part of his detention, see Compl. ¶10, 39, 4^, substantially identical allegations were held to be too indefinite ín Price v. Socì^líst People's L^^yan Arab Jan^ahiríya, 294 F.^d 82, 93 (D.C. Cir. 2002}. T'hís Court, in Qá, 349 F. Supp. 2d at 1316, relied on Price to assess several torture claims. In Price, 294 F. ^d at 86, plaíntiffs alleged they were kept in a "political prison" during trial; held in a "cramped cell with substandard plumbing that they were forced to share with seven other inmates''; endured "a lack of medical care, and inadequate food"; were "kícked, clubbed and beaten"; and "interrogated and subjected to physical, mental and verbal abuse.'' Because there was no inforrriation about the "frequency, duration and parts of the body at which the beatings were aimed [nor] information. about weapons used to carry therr^ out,'' Price held there was "no way to discern ...whether plaíntiffs' complaint merely alleges police brutality that falls short of tartare." Id. at 93-94. As in Price, plaintiffs' TVPA and ATS claims are "insufficient to survive [a] motion to dis^x^íss." Id. At the very least, a more defmíte statement is regaíred.

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C.

The C©^nnlaint Fails tc^ Ide^ntífy Wl^icl^ Defendants Did What.

Rule 8 requires plaíntiffs to clearly identify the basis for their claims against "each defendant." R^sidescu v. Mádl^^d Credit Mgmt., Inc., 435 F. Sapp. 2d 1090, 1098-99 (S.D. Cal. 200} ("[E]very complaint mast, at ^ minimam, give fair entice and state the elements of each claim against e ch defendant plainly and succinctly."). Plaintiffs' complaint indiscriminately lumps "defendants'' together and falls to "allege, with at least some degree of particularity, overt col-^^^sl cw
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actions taken by each defendant which support [their] claims." Íd. at 1099. Plaintiffs must plead more specifically. D. The C©m^laínt Fails tó A^le^e HawDefe^dar^ts Allegedly Injured Plaintiffs.

The corr^plaínt also fails to allege how defendants' alleged disclosures could have caused. plaintiffs' injuries. First, the complaint makes na specific allegation that Yahoo! Inc. disclosed any ínformatínn regarding the named plaíntíffs. Only YHKL (a party aver which this Court has no personal jurisdiction) is alleged to have disclosed any information regarding Wang Xíaoning ar Shi Tao, Second, while there ís a generic allegation that the disclosures "served as a basis for [theírj acts of persecution and torture," (Compl., ¶ 2), the complaint ís silent about the causal connection, if any, between the disclosures and plaíntíffs' arrests, convictions, imprisonment, and alleged torture by Chinese authoríties.^ But ín order "to give each defendant `fair notice' of what they are being accused of," plaíntíffs must "allege, with at least some degree of particularity, overt actions taken by each defendant which support his claims." Raside.scu, 435 F. Supp. 2d at 1099. The co^nplaí^^t d^^es not do so. II. C4NCL^SION if the Court allows any claim to proceed-and we submit it should not-----plaintiffs should

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be r^quíred to file a ^x^ore defzníte statement pursuant to Rule 12(e).

Dated: August 27, 2007

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I7ANIÉL M. PETROCELLI MATTHEW T. KLINE O'MELVENY & MYERS LLP By:

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Daniel M. Petrocellí
Attorneys for Defendant Yahaa! lnc and for specially appearing defendant Yahoo! Hong Kong, Ltd.

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Mareover, the dacu^nents died ín the complaint strongly suggest no causal connection. Each judgment, attached to defendants ' Mat. to Dismiss as Apex. A, Exs. B and C, respectively, shows that the information provided by Yahoo! was one of many pieces of evidence against plaintiffs. C[}7-02 ] S 1 C W
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