eBay Inc. v. Digital Point Solutions, Inc. et al

Filing 28

MOTION to Dismiss First Amended Complaint Pursuant to Fed. R. Civ. Proc. 12(b) by Defendants Todd Dunning and Dunning Enterprise, Inc. filed by Todd Dunning. Motion Hearing set for 12/12/2008 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Foreman, Stewart) (Filed on 10/27/2008)

eBay Inc. v. Digital Point Solutions, Inc. et al

Doc. 2

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FREELAND COOPER & FOREMAN LLP

Stewart H. Foreman (CSB #61149) Daniel T. Bernhard (CSB #104229) FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] Attorneys for Defendants Todd Dunning and Dunning Enterprise, Inc. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

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150 Spear Street, Suite 1800 San Francisco, California 94105

EBAY, INC., Plaint iff, v. DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, BRIANDUNNING.COM, and DOES 1-20, Defendants.

CASE NO.: CV-08-4052 JF NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. PROC. 12(b) BY DEFENDANTS TODD DUNNING AND DUNNING ENTERPRISE, INC. Date: Time: Place: December 12, 2008 9:00 a.m. Courtroom 3, 5th Floor 280 South First Street San Jose, CA 95113

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TO THE PARTIES AND THEIR COUNSEL OF RECORD: Please take notice that on December 12, 2008, at 9:00 a.m. before The Honorable Jeremy Fogel in Courtroom Number 3, 5th Floor, Federal Court House located at 280 South First Street, San Jose, California 95113, defendants Todd Dunning and Dunning Enterprise, Inc. will and hereby do move the Court for an order dismissing the First Amended Complaint filed by plaintiff eBay, Inc. pursuant to Federal Rule of Civil Procedure 12(b)(1), (3) and (6).

1 NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. PROC. 12(b) BY DEFENDANTS TODD DUNNING AND DUNNING ENTERPRISE, INC.
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Dockets.Justia.com

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FREELAND COOPER & FOREMAN LLP

This Motion is based on the following: (1) there is no federal question on which to base jurisdiction in this Court; (2) the First Amended Complaint fails to state any claim on which relief can be granted by this Court; (3) venue in this Court is improper under 28 U.S.C. Section 1391; and (4) the First Amended Complaint makes claims that are substantially identical to those made in a pending action filed by eBay's agent, Commission Junction, Inc., against these defendants in the Superior Court of the State of California, County of Orange. This Motion is based upon this Notice and Motion, the attached Memorandum of Points and Authorities, the accompanying Request for Judicial Notice, and the Declaration of Stewart H. Foreman In Support thereof. Defendants Todd Dunning and Dunning Enterprise, Inc. request that this Court grant their Motion to Dismiss the First Amended Complaint.

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150 Spear Street, Suite 1800 San Francisco, California 94105

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Dated: October 27, 2008

FREELAND COOPER & FOREMAN LLP

By:

________________/s/______________ STEWART H. FOREMAN Attorneys for Defendants Todd Dunning and Dunning Enterprise

2 NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. PROC. 12(b) BY DEFENDANTS TODD DUNNING AND DUNNING ENTERPRISE, INC.
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