CLRB Hanson Industries, LLC et al v. Google Inc.

Filing 85

First MOTION for Summary Judgment or in the Alternative, for Summary Adjudication filed by Google Inc.. Motion Hearing set for 11/6/2006 09:00 AM in Courtroom 8, 4th Floor, San Jose. (Jhang, Christopher) (Filed on 10/2/2006)

Download PDF
CLRB Hanson Industries, LLC et al v. Google Inc. Doc. 85 Case 5:05-cv-03649-JW Document 85 Filed 10/02/2006 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 DAVID T. BIDERMAN, Bar No. 101577 JUDITH B. GITTERMAN, Bar No. 115661 M. CHRISTOPHER JHANG, Bar No. 211463 PERKINS COIE LLP Four Embarcadero Center, Suite 2400 San Francisco, CA 94111-4131 Telephone: (415) 344-7000 Facsimile: (415) 344-7050 Email: DBiderman@perkinscoie.com Email: JGitterman@perkinscoie.com Email: CJhang@perkinscoie.com Attorneys for Defendant Google Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION CLRB HANSON INDUSTRIES, LLC d/b/a INDUSTRIAL PRINTING, and HOWARD STERN, on behalf of themselves and all others similarly situated, Plaintiffs, CASE NO. C O5-03649 JW GOOGLE INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION Fed. R. Civ. P. 56 15 v. 16 GOOGLE, INC., 17 Defendant. 18 19 20 21 22 23 24 25 26 27 28 Date: Time: Place: Judge: November 6, 2006 9:00 a.m. Courtroom 8 Honorable James Ware GOOGLE INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION CASE NO. 05-03649 [41063-0023/BY062750.056] Dockets.Justia.com Case 5:05-cv-03649-JW Document 85 Filed 10/02/2006 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 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on November 6, 2006, at 9:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 8 of the United States District Court for the Northern District of California, San Jose Division, defendant Google Inc. ("Google") will, and hereby does, move the Court for summary judgment, for Google and against plaintiffs CLRB Hanson Industries, LLC, d/b/a Industrial Printing, and Howard Stern ("Plaintiffs"), on Plaintiffs' claims for breach of contract, breach of implied covenant of good faith and fair dealing, unfair competition, untrue and misleading advertising, and unjust enrichment, pursuant to Federal Rules of Civil Procedure 56(c). In the alternative, Google will, and hereby does, move for summary adjudication of the following issues of fact and law: (1) that Google is entitled, under Google's advertising Agreement, to exceed an advertiser's daily budget by up to 20% on any given day and (2) that Google may base an advertiser's charges in a given billing period on the number of days in that month multiplied by the advertiser's daily budget. In addition, Google will, and hereby does, move for summary adjudication that Plaintiffs' claims, and the claims of the putative class members, be barred for alleged breaches occurring more than 60 days prior to the date the original complaint was filed, August 3, 2005. This motion is made on grounds that the undisputed facts show that Plaintiffs' claims are unsupported by the express terms of the parties' Agreement, that the Agreement fully discloses the calculation of advertisers' advertising charges, that Google billed Plaintiffs consistently with the terms of their Agreement, and that a valid enforceable agreement exists between the parties. This motion is also made on the undisputed fact that advertisers do not accrue charges when their ad campaigns are "paused," and that pausing does not affect the calculation of an advertiser's monthly budget, which is based in a billing period on the number of days in that month times the advertiser's daily budget, as long as the campaign is active (i.e., not deleted and the term of the campaign has not ended). Finally, this motion is made on the ground that Plaintiffs' claims are barred in part by the limitations period in the Agreement, which limits advertisers' claims to those asserted within 60 days of the contested charge. -2GOOGLE INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION [41063-0023/BY062750.056] Case 5:05-cv-03649-JW Document 85 Filed 10/02/2006 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 Google's motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the supporting Declarations of M. Christopher Jhang, Michael Schulman, and Leslie Altherr, the [Proposed] Order Granting Google Inc.'s Motion for Summary Judgment, or in the Alternative, for Summary Adjudication, the pleadings on file in this action, and such other matters and arguments as may be presented to the Court prior to or at the hearing on the motion. Dated: October 2, 2006 PERKINS COIE LLP By: __________/S/_______________________ David T. Biderman Attorneys for Defendant Google Inc. -3GOOGLE INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION [41063-0023/BY062750.056]

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?