Almeida v. Google, Inc.

Filing 44

Statement of Non-Opposition re 39 MOTION to Dismiss PLAINTIFFS NOTICE OF NONOPPOSITION TO DEFENDANT GOOGLE, INC.S MOTION TO DISMISS filed byDavid Almeida. (Attachments: # 1 Declaration of Michael V. Storti)(Related document(s) 39 ) (Storti, Michael) (Filed on 3/12/2010)

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BRIAN S. KABATECK, SBN 152054 ([e-mail]) RICHARD L. KELLNER, SBN 171416 ([e-mail]) ALFREDO TORRIJOS, SBN 222458 ([e-mail]) KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, California 90017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff and the Proposed Class

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION David Almeida, on behalf of himself and all others similarly situated, Plaintiff, vs. Google Inc., a Delaware Corporation, and Does 1 through 10, inclusive, Defendant. CASE NO. C 08-02088 RMW

PLAINTIFF'S NOTICE OF NONOPPOSITION TO DEFENDANT GOOGLE, INC.'S MOTION TO DISMISS Date: April 2, 2010 Time: 9:00 a.m. Dept: 6 Judge: Hon. Ronald M. Whyte

PLAINTIFF'S NOTICE OF NON-OPPOSITION TO DEFENDANT GOOGLE, INC.'S MOTION TO DISMISS (CASE NO. C 08-02088 RMW)

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NOTICE IS HEREBY GIVEN by and through Plaintiff David Almeida's ("Plaintiff") counsel of record, that Plaintiff does not oppose Defendant Google Inc.'s ("Google") Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Google moves to dismiss the action, with prejudice, for lack of subject matter jurisdiction based on Plaintiff's lack of standing to represent the putative class. Plaintiff does not oppose the dismissal of the action pursuant to FRCP 12(b)(1). However, the Ninth Circuit has held that if a district court dismisses an action for lack of subject matter jurisdiction, the dismissal must be made without prejudice. See Kelly v. Fleetwood Enterprises, Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (stating that the district court should have dismissed the action without prejudice because it lacked subject matter jurisdiction); see also Kendall v. Dept. of Veterans Affairs, 2009 WL 5184127, *1 (9th Cir. 2009). Moreover, Plaintiff has been attempting to stipulate to a dismissal of this action since June 2009. [Storti Decl., ¶¶ 3-6.] Accordingly, Plaintiff does not oppose the dismissal of this action but requests that the dismissal be made without prejudice. DATED: March 12, 2010 By: /s/ KABATECK BROWN KELLNER LLP Brian S. Kabateck Richard L. Kellner Alfredo Torrijos Counsel for Plaintiff and proposed class

-2PLAINTIFF'S NOTICE OF NON-OPPOSITION TO DEFENDANT GOOGLE, INC.'S MOTION TO DISMISS (CASE NO. C 08-02088 RMW)