Pimental v. Google, Inc. et al

Filing 29

MOTION to Dismiss Consolidated Class Action Complaint filed by Google, Inc., Slide, Inc.. Motion Hearing set for 2/28/2012 01:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Saundra Brown Armstrong. Responses due by 10/28/2011. Replies due by 11/4/2011. (Attachments: # 1 Proposed Order)(Wilson, Bobbie) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF).

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PERKINS COIE LLP
BOBBIE J. WILSON (Bar No. 148317)
JOSHUA A. REITEN (Bar No. 238985)
Four Embarcadero Center, Suite 2400
San Francisco, CA 94111-4131
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]

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DEBRA R. BERNARD (Pro hac vice)
131 S. Dearborn St. Suite 1700
Chicago, Il 60603
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]
Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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NICOLE PIMENTAL and JESSICA
FRANKLIN, individually and on behalf of
all others similarly situated,

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Plaintiffs,
v.
GOOGLE INC., a Delaware corporation,
and SLIDE, INC., a Delaware corporation,

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Defendants.
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This Document Relates to All Actions.

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[PROPOSED] ORDER
Case No. 11-cv-02585-SBA

Case No. 11-cv-02585-SBA
[PROPOSED] ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS
PLAINTIFFS’ CONSOLIDATED CLASS
ACTION COMPLAINT

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On October 14, 2011, Defendants filed a Motion to Dismiss Plaintiffs’ Consolidated Class

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Action Complaint (the “Motion”). Upon consideration of the Motion, Defendants’ request for

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judicial notice, Plaintiffs’ response to the Motion, and the arguments of counsel on these matters,

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IT IS HEREBY ORDERED that the Motion is GRANTED, for the following reasons:

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(1) The Consolidated Class Action Complaint (the “Complaint”) fails to state a claim

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upon which relief can be granted under Federal Rules of Civil Procedure 8 and 12(b)(6) because

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it does not sufficiently allege an essential element of a claim for violation of the Telephone

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Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Specifically, the Complaint does not state

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well-pleaded factual allegations to support Defendants’ use of an “automatic telephone dialing

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system,” as that term is defined by the TCPA. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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555 (2007); Ashcroft v. Iqbal, 556 U.S. --, 129 S. Ct. 1937, 1949-50 (2009).

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(2) In addition, and as an independent ground for dismissal, under a narrow construction

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of the applicable provisions of the TCPA, the communications at issue here—informational,

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noncommercial text messages sent by Defendants—do not violate the TCPA and, therefore, the

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Complaint fails to state a claim upon which relief can be granted.

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Accordingly, the Complaint is hereby DISMISSED WITH PREJUDICE.

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IT IS SO ORDERED.

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DATED: _________________________

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HON. SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT COURT JUDGE

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-1[PROPOSED] ORDER
Case No. 11-cv-02585-SBA