Black et al v. Google Inc.

Filing 34

Memorandum in Opposition re 32 MOTION to Stay re 26 Order on Motion to Dismiss, Order on Motion for Judgment on the Pleadings filed byGoogle Inc.. (Kramer, David) (Filed on 9/15/2010) Modified on 9/16/2010 (cp, COURT STAFF).

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Black et al v. Google Inc. Doc. 34 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 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: (650) 493-9300 Facsimile: (650) 565-5100 dkramer@wsgr.com 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 TO STAY DEF. GOOGLE INC.'S OPP'N TO MOTION TO STAY CASE NO. C 10-02381 CW -1Dockets.Justia.com 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 OPPOSITION TO MOTION TO STAY On September 10, 2010, Plaintiffs filed a motion to stay this Court's August 13, 2010 Order granting Google's motion to dismiss with prejudice ("Dismissal Order"). Plaintiffs' motion should be denied because a stay would serve no purpose: the Dismissal Order did not alter the status quo or impose any obligations on Plaintiffs from which they need relief. Moreover, Plaintiffs cannot demonstrate any of the requirements for entry of a stay. A district court considers the following factors when deciding whether to stay an order during appeal: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The first two factors are "the most critical." Nken v Holder, 129 S.Ct. 1749, 1761 (2009). These considerations militate against a stay here. First, Plaintiffs are unlikely to prevail on appeal. The Dismissal Order carefully analyzed the law and came to the correct conclusion that Plaintiffs' claims are barred by Section 230(c). Indeed, Plaintiffs' rambling motion to stay itself demonstrates how unlikely it is that they will prevail on appeal by ignoring the governing law and making bizarre and inscrutable factual assertions. Second, Plaintiffs have failed to show irreparable injury. That is not surprising given that their claims are based on the alleged presence of a third-party review of their roofing business that has been removed from the Google Places service. Third, a stay would cause injury to Google by calling into question the broad protections of Section 230(c) that the Dismissal Order recognized. Fourth, the public interest cuts against a stay because providers and users of interactive computer services are entitled to the certainty that attaches to dismissals of lawsuits that seek to hold them liable for third-party content in direct contravention of a federal immunity. DEF. GOOGLE INC.'S OPP'N TO MOTION TO STAY CASE NO. C 10-02381 CW -2- 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 See 47 U.S.C. 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."). For these reasons, Plaintiffs' motion to stay should be denied. Respectfully submitted, Dated: September 15, 2010 WILSON SONSINI GOODRICH & ROSATI Professional Corporation By: /s/ David H. Kramer David H. Kramer Attorneys for Defendant Google Inc. DEF. GOOGLE INC.'S OPP'N TO MOTION TO STAY CASE NO. C 10-02381 CW -3- 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, Deborah Grubbs, declare: I am employed in Santa Clara County, State of California. I am over the age of 18 years and not a party to the within action. My business address is Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto, California 94304-1050. On this date I served: DEFENDANT GOOGLE INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO STAY VIA U.S. MAIL: By placing the document(s) in a sealed envelope for collection and mailing with the United States Postal Service on this date addressed to the person(s) listed below. I am familiar with our business practices for collecting and processing of mail for the United States Postal Service. Mail placed by me within the office for collection for the United States Postal Service would normally be deposited with the United States Postal Services that same day in the ordinary course of business. NON-ECF FILERS Gary Black Holli BeamBlack 101 Auld Court Green Valley Falls, CA 94534 BY E-MAIL: by causing to be transmitted via e-mail the document(s) listed above to the addressee(s) at the e-mail address(es) listed below. NON-ECF FILERS Gary Black Holli BeamBlack Email: gerald@raymondavich.com I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed at Palo Alto, California on September 15, 2010. /s Deborah Grubbs Deborah Grubbs CERTIFICATE OF SERVICE CASE NO.: C 10-02381 CW -1-

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