Black et al v. Google Inc.

Filing 17

Memorandum in Opposition re 15 MOTION for Judgment on the Pleadings filed byGoogle Inc.. (Kramer, David) (Filed on 7/22/2010) Modified on 7/23/2010 (cp, COURT STAFF).

Black et al v. Google Inc.

Doc. 17

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DAVID H. KRAMER, State Bar No. 168452 BART E. VOLKMER, State Bar No. 223732 JACOB T. VELTMAN, State Bar No. 247597 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Google Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION GARY BLACK, et al., Plaintiffs, v. GOOGLE INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 10-02381 CW DEFENDANT GOOGLE INC.'S OPPOSITION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS Hearing Date: August 12, 2010 Hearing Time: 2:00 p.m. Courtroom: 2 (Hon. Claudia Wilken)

DEF. GOOGLE INC.'S OPP'N TO PLS.' MOTION FOR JUDGMENT ON THE PLEADINGS CASE NO. C 10-02381 CW

Dockets.Justia.com

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OPPOSITION MEMORANDUM INTRODUCTION Plaintiffs' motion for judgment on the pleadings is procedurally improper and fails on the merits. A party may file a Rule 12(c) motion only "after the pleadings are closed." But Google has not answered the complaint; it moved to dismiss it. Accordingly, the pleadings are open and plaintiffs' motion is premature. It should be denied on that basis alone. To the extent it can be parsed, the motion is also meritless. As Google's motion to dismiss shows, Google is immune from suit under Section 230(c) and plaintiffs fail to state a claim for relief. Accordingly, even if plaintiffs' motion for judgment on the pleadings were proper, it would fail completely on the merits. PROCEDURAL BACKGROUND On May 28, 2010, plaintiffs filed a complaint against Google. (Docket No. 1). The parties stipulated that Google's deadline to answer, move, or otherwise respond to the Complaint would be July 2, 2010. (Docket No. 8). On July 2, 2010, Google moved to dismiss the complaint. (Docket No. 10). On July 8, 2010, plaintiffs opposed Google's motion to dismiss and filed a motion for judgment on the pleadings. (Docket No. 15). Google has not answered the complaint. ARGUMENT Plaintiffs' Motion For Judgment On The Pleadings Should Be Denied As Premature Under Controlling Ninth Circuit Law.

A party may file a motion for judgment on the pleadings "[a]fter the pleadings are closed." Fed. R. Civ. P. 12(c). At the earliest, the pleadings close when the defendant answers the plaintiff's complaint. See Fed. R. Civ. P. 7(a) (setting forth the pleadings allowed under the Federal Rules). Plaintiffs' motion for judgment on the pleadings is premature because Google has not filed an answer. Under controlling Ninth Circuit law, their motion must be denied. See Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005) (ruling that a motion for
DEF. GOOGLE INC.'S OPP'N TO PLS.' MOTION FOR JUDGMENT ON THE PLEADINGS CASE NO. C 10-02381 CW

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judgment on the pleadings that was filed before an answer and during the pendency of a motion to dismiss was "procedurally premature and should have been denied."). B. Plaintiffs' Motion For Judgment On The Pleadings Lacks Merit.

Plaintiffs' motion should also be denied because it lacks merit. The substantive basis for plaintiffs' motion for judgment on the pleadings is nearly impossible to decipher. Plaintiffs seem to contend that they are entitled to judgment if the factual allegations in the complaint and a free-floating declaration are accepted as true. But that is not how Rule 12(c) works. The Court does not consider materials extraneous to the pleadings and accepts as true only those matters that are admitted by the defendant in its answer when deciding a plaintiff's Rule 12(c) motion. See Qwest Commc'ns Corp. v. City of Berkeley, 208 F.R.D. 288, 291 (N.D. Cal. 2002). Applying that standard here, there are no facts which can be found in plaintiffs' favor to support their motion because Google has not answered the complaint. More fundamentally, Google's motion to dismiss shows that Google is immune from liability under 47 U.S.C. § 230(c) and that plaintiffs have failed to state a claim upon which relief can be granted under Rule 12(b)(6) and Rule 12(b)(1). (Docket No. 10). Accordingly, even setting aside the procedural flaws in plaintiffs' motion, there is no conceivable basis for a judgment in their favor (on the pleadings or otherwise). /// /// /// /// /// /// /// ///
DEF. GOOGLE INC.'S OPP'N TO PLS.' MOTION FOR JUDGMENT ON THE PLEADINGS CASE NO. C 10-02381 CW

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DEF. GOOGLE INC.'S OPP'N TO PLS.' MOTION FOR JUDGMENT ON THE PLEADINGS CASE NO. C 10-02381 CW

CONCLUSION For the foregoing reasons, Google respectfully requests that the Court deny plaintiffs' motion for judgment on the pleadings.

Dated: July 22, 2010

WILSON SONSINI GOODRICH & ROSATI Professional Corporation By: /s/ David H. Kramer David H. Kramer

Attorneys for Defendant Google Inc.

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