Advanced Internet Technologies, Inc. v. Google, Inc.

Filing 11

Reply Memorandum re 8 MOTION to Dismiss Reply Memorandum In Support of Motion to Dismiss filed byGoogle, Inc.. (Kent, Ryan) (Filed on 8/19/2005)

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Advanced Internet Technologies, Inc. v. Google, Inc. Doc. 11 Case 5:05-cv-02579-RMW Document 11 Filed 08/19/2005 Page 1 of 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 KEKER & VAN NEST, LLP DARALYN J. DURIE - #169825 CLEMENT S. ROBERTS - #209203 RYAN M. KENT - #220441 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Email: djd@kvn.com; rmk@kvn.com Attorneys for Defendant GOOGLE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CLICK DEFENSE INC., a Colorado corporation, Individually and on behalf of all others similarly situated, Plaintiffs, v. GOOGLE, INC., a Delaware corporation, and DOES 1 through 100, Inclusive, Defendants. Case No. C 05 02579 RMW E-FILING GOOGLE, INC.'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Date: Time: Judge: September 2, 2005 9:00 a.m. Hon. Ronald M. Whyte June 24, 2005 Date Comp. Filed: 1 357154.01 GOOGLE, INC.'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. C 05 02579 RMW Dockets.Justia.com Case 5:05-cv-02579-RMW Document 11 Filed 08/19/2005 Page 2 of 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 Defendant Google, Inc. moves the Court to dismiss plaintiff Click Defense Inc.'s negligence and unjust enrichment causes of action for failure to state a claim. Dismissal is appropriate for two reasons. First, plaintiff failed to timely oppose this motion. On July 27, 2005, Google filed its motion to dismiss and noticed that motion for hearing on September 2, 2005. Under the Local Rules, if plaintiff wished to oppose the motion, its opposition was due by August 12, 2005 -- 21 days before the hearing. Civil L.R. 7-3(a). But plaintiff filed its opposition today, the day that Google's reply was due. Indeed, counsel for Google received plaintiff's opposition mere moments before filing its reply.1 Because plaintiff failed to comply with the rules of this Court, its negligence and unjust enrichment causes of action should be dismissed. See Fed. Rule Civ. Proc. 41(b). Second, plaintiff's causes of action fail on their merits. Plaintiff concedes that its negligence action fails to state a claim, but argues that its unjust enrichment should survive because a plaintiff may allege inconsistent causes of action. Plaintiff's argument, however, misses the point. While a party may allege an inconsistent cause of action, it still must allege facts sufficient to support that particular cause of action. See Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). Plaintiff failed to do so here. To state an unjust enrichment cause of action, plaintiff had to allege in some manner that an explicit contract did not define the rights of the parties. See Paracor Finance, Inc. v. General Elec. Capital Corp., 96 F.3d 1151, 1167 (9th Cir. 1996) ("Under both California and New York law, unjust enrichment is an action in quasi-contract, which does not lie when an enforceable, binding agreement exists defining the rights of the parties."). But Plaintiff alleged the opposite in its complaint, alleging that the parties entered into a legally binding contract that governs the parties' respective rights, including what advertisers Upon seeing plaintiff's opposition, Google quickly halted its filing and altered its reply to preliminarily address plaintiff's arguments. Because plaintiff filed its opposition on the day Google's reply was due, however, Google was not given a fair opportunity to respond to those arguments and reserves its right to file a supplemental memorandum in support of its motion. 1 2 357154.01 GOOGLE, INC.'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. C 05 02579 RMW Case 5:05-cv-02579-RMW Document 11 Filed 08/19/2005 Page 3 of 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 should be charged. See Compl. 37 ("Every member of the Class is a party to the AdWords Program Terms."). Therefore, Google respectfully requests that the Court dismiss plaintiff's negligence and unjust enrichment causes of action. Moreover, because no amendment could negate the existence of the AdWords contract that governs the parties' respective rights and because that contract precludes any unjust enrichment claim, the Court should dismiss plaintiff's unjust enrichment claim without leave to amend. See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004). Dated: August 19, 2005 KEKER & VAN NEST, LLP By: /s/ Ryan M. Kent RYAN M. KENT Attorneys for Defendant GOOGLE, INC. 3 357154.01 GOOGLE, INC.'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO. C 05 02579 RMW

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