Goodard v. Google, Inc.

Filing 61

ORDER GRANTING 60 MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING. Signed by Judge Jeremy Fogel on 5/18/09. (jflc3, COURT STAFF) (Filed on 5/18/2009)

Goodard v. Google, Inc.

Doc. 61

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**E-Filed 5/18/09**

IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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JENNA GODDARD, individually and on behalf of all others similarly situated, Plaintiff, v.

Case Number C 08-2738 JF (PVT) ORDER1 GRANTING MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING RE: Docket No. 60.

GOOGLE, INC., a Delaware corporation, Defendant.

Plaintiff Jenna Goddard ("Plaintiff") has filed a motion for leave to file supplemental opposition to Defendants' earlier-argued and -submitted motion to dismiss in light of the Ninth Circuit's recent decision in Barnes v. Yahoo!, __ F.3d __, 2009 WL 1232367 (9th Cir. May 7, 2009), which interprets§ 230 of the Communications Decency Act. In particular, Plaintiff wishes to address the Ninth Circuit's holdings that (1) § 230 provides an affirmative defense and may not serve as the basis for dismissal pursuant to Rule 12(b)(6), and (2) certain promissory conduct by a defendant may remove it from the scope of immunity provided by § 230.

This disposition is not designated for publication in the official reports.

C a s e No. C 08-2738 JF (PVT) O R D E R GRANTING MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING ( JF L C 3 )

Dockets.Justia.com

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The Court has read Barnes and finds that supplemental briefing would be useful. While Plaintiff's breach of contract claim­which is predicated not on any "clear and well defined [promise] . . . that could serve as an offer . . . or . . . otherwise . . . give rise to a traditional contract supported by consideration," but on a "general [content] policy. . . on the part of [the] interactive computer service," id. at 9-10­bears little or no resemblance to the promissory estoppel claim at issue in Barnes and in fact appears to be foreclosed as a matter of law by the CDA as interpreted by the court in Barnes, there is a legitimate question as to whether Google now must assert CDA immunity as an affirmative defense through a responsive pleading. Goddard may file a five-page supplemental opposition brief addressing either issue not later than Friday, May 29, 2009. Google may file a five-page supplemental reply brief not later than Friday, June 12, 2009.

IT IS SO ORDERED. DATED: 5/18/09

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C a se No. C 08-2738 JF (PVT) O R D E R GRANTING MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING ( JF L C 3 )

JEREMY FOGEL United States District Judge

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This Order has been served electronically upon the following persons: Alan Himmelfarb Ethan Mark Preston Karen Johnson-McKewan Nancy E. Harris Nikka Noel Rapkin [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

This Order has NOT been served by other means upon the following persons: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
C a se No. C 08-2738 JF (PVT) O R D E R GRANTING MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING ( JF L C 3 )

Kikka N. Rapkin Orrick Herrington & Sutcliffe LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669