Goodard v. Google, Inc.

Filing 60

MOTION for Leave to File Supplemental Authority In Support Of Her Opposition to Googles Motion to Dismiss the First Amended Complaint filed by Jenna Goodard. Motion Hearing set for 6/19/2009 09:00 AM. (Himmelfarb, Alan) (Filed on 5/15/2009)

Alan Himmelfarb 1 KAMBEREDELSON LLC 2757 Leonis Blvd. 2 Los Angeles, CA 90058 [phone] 3 [e-mail] 4 Michael J. McMorrow (Pro Hac Vice) KAMBEREDELSON LLC 5 350 North LaSalle, Ste 1300 Chicago, Illinois 60654 6 [phone] [e-mail] 7 8 COUNSEL FOR PLAINTIFF 9 10 11 12 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 08-2738 JF (PVT) PLAINTIFF'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY IN SUPPORT OF HER OPPOSITION TO GOOGLE'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT Date: June 19, 2009 Time: 9:00 a.m. Judge: The Hon. Jeremy Fogel

13 JENNA GODDARD, on her own behalf and on behalf of all others similarly situated, 14 Plaintiff, 15 v. 16 GOOGLE, INC., a Delaware corporation, 17 Defendant. 18 19 20 21 22 23 24 25 26 27 28

Case No. C 08-2738 JF (PVT) Motion for Leave to File Sup. Authority

1

NOTICE OF MOTION AND MOTION

2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on June 19, 2009 at 9:00 a.m. or as soon thereafter as the

4 matter may be heard, in the courtroom of the Honorable Jeremy Fogel, United States District 5 Court, 280 S. First Street, San Jose, CA 95113, Plaintiff will move the court for leave pursuant 6 to Local Civil Rule 7-3(d) to file supplemental authority in support of her Opposition to Google 7 Inc.'s Motion to Dismiss the First Amended Complaint. This motion is based on the Notice of 8 Motion and Motion, all pleadings on file in this action, oral argument of counsel, and any other 9 matter that may be submitted at the hearing. 10 1. On January 16, 2009, Plaintiff filed her Amended Class Action Complaint

11 against Defendant Google Inc., alleging violations of Cal. Bus. & Prof. Code § 17200, Breach 12 of Contract, Negligence, and Aiding & Abetting. (Dkt. 49.) 13 2. On February 5, 2009, Defendant Google Inc., filed a Motion to Dismiss the

14 Amended Complaint arguing, inter alia, that Plaintiff's state law claims are barred by Section 15 230 of the Communications Decency Act, 47 U.S.C. § 230 and that Plaintiff has not properly 16 pleaded a claim for Breach of Contract. (See Dkt. 50.) 17 3. Google's Motion to Dismiss the Amended Complaint was fully briefed and the

18 Court heard oral argument on April 3, 2009. (See Dkt. 53, 57, and 58.) Upon conclusion of 19 oral argument, Google's Motion to Dismiss the Amended Complaint was taken under 20 submission. (Dkt. 58.) 21 4. At the time of filing, the Court has not issued a ruling on the Motion to Dismiss

22 the Amended Complaint. 23 5. Local Civil Rule 7-3(d) provides that "once a reply is filed, no additional

24 memoranda, papers or letters may be filed without prior Court approval." 25 6. On May 7, 2009, the United States Court of Appeals for the Ninth Circuit issued

26 its Opinion in Barnes v. Yahoo!, Inc., No. 05-36189, 2009 WL 1232367 (9th Cir. May 7, 2009). 27 In its decision, the Court addresses two topics that are at issue in the present litigation: (1) that 28 Section 230 provides only an affirmative defense and cannot be the basis for dismissal under

Case No. C 08-2738 JF (PVT) Motion for Leave to File Sup. Authority

1 Fed. R. Civ. P 12(b)(6); and (2) that a Defendant's own promissory conduct altering the 2 baseline immunity established by Section 230 may be sufficient to impose liability on a 3 contractual theory of liability. Barnes, 2009 WL 1232367, at *2, 11. Plaintiff believes that the 4 Barnes decision prevents the Court from dismissing Plaintiff's claim pursuant to Section 230, as 5 argued by Defendant, and that the decision provides an additional basis for the denial of 6 Defendant's motion as to Count II of the Amended Complaint (Breach of Contract). 7 WHEREFORE, Plaintiff respectfully requests the Court grant her leave to file a short

8 memorandum, not to exceed 5 pages, addressing the effect of the Barnes decision on the present 9 motion to dismiss, or for such other relief as this Court deems reasonable and just. 10 11 12 13 Dated: May 15, 2009 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By: /s/ Alan Himmelfarb Alan Himmelfarb KAMBEREDELSON LLC 2757 Leonis Boulevard Los Angeles, California 90058 [phone] [e-mail] Michael McMorrow (Pro Hac Vice) KAMBEREDELSON LLC 350 North LaSalle, Ste 1300 Chicago, Illinois 60654 [phone] [e-mail]

Case No. C 08-2738 JF (PVT) Motion for Leave to File Sup. Authority