Almeida v. Google, Inc.

Filing 46

Supplemental MOTION to Dismiss SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION TO DISMISS [Fed. R. Civ. P. 12(b)(1)] filed by Google, Inc.. Motion Hearing set for 4/2/2010 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Silbert, David) (Filed on 4/1/2010)

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KEKER & VAN NEST, LLP CHRISTA M. ANDERSON - #184325 DAVID J. SILBERT - #173128 REBEKAH PUNAK - #248588 710 Sansome Street San Francisco, CA 94111-1704 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

DAVID ALMEIDA, individually and on behalf of all others similarly situated, Plaintiff, v. GOOGLE INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants.

Case No. C 08-02088 RMW DEFENDANT GOOGLE INC.'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION TO DISMISS [Fed. R. Civ. P. 12(b)(1)] Date: Time: Dept: Judge: April 2, 2010 9:00 a.m. 6 Hon. Ronald M. Whyte April 22, 2008

Date Comp. Filed: Trial Date: None set.

484974.01

SUPP. MEMORANDUM IN SUPPORT OF DEFENDANT GOOGLE INC.'S MOTION TO DISMISS CASE NO. C 08-02088 RMW

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Google submits this supplemental memorandum to apprise the Court of the parties' efforts to stipulate to the dismissal of this action. The parties have met and conferred but have been unable to agree on the terms of a stipulation. Accordingly, Google requests that the Court dismiss the action pursuant to Google's motion. Further, for the reasons stated in its moving papers, Google requests that the dismissal be with prejudice, as Almeida now acknowledges that he never used the allegedly misleading interface that is the subject of the action, even though he falsely alleged in his Complaint that he did. See Complaint (Doc. 1) at ¶ 15; P.'s Mtn. for Leave to Amend (Doc. 27), at 1:9-11. Yesterday, Almeida sent a letter to the Court requesting that Google's motion to dismiss be submitted without oral argument, or alternatively, that Almeida's counsel be permitted to appear telephonically. As Google has already stated, it would be pleased to submit this matter without oral argument. If the Court wishes to hear argument, Google's counsel will appear in person, but Google does not object to Almeida's counsel appearing by telephone.

Respectfully submitted Dated: April 1, 2010 KEKER & VAN NEST, LLP

By: /s/ David J. Silbert DAVID J. SILBERT Attorneys for Defendant GOOGLE INC.

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484974.01

SUPP. MEMORANDUM IN SUPPORT OF DEFENDANT GOOGLE INC.'S MOTION TO DISMISS CASE NO. C 08-02088 RMW