Gomelsky v. Apple, Inc.

Filing 58

MOTION to Dismiss APPLE INC.S NOTICE OF MOTION AND MOTION TO DISMISS THE SECOND AMENDED COMPLAINT filed by Apple, Inc.. Motion Hearing set for 2/5/2010 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Preovolos, Penelope) (Filed on 11/5/2009)

Gomelsky v. Apple, Inc.

Doc. 58

Case5:08-cv-04969-JF Document58

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PENELOPE A. PREOVOLOS (CA SBN 87607) ([e-mail]) ANDREW D. MUHLBACH (CA SBN 175694) ([e-mail]) ALEXEI KLESTOFF (CA SBN 224016) ([e-mail]) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: 415.268.7522 Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
APPLE'S NOTICE OF MOTION AND MOTION TO DISMISS THE SAC CASE NOS. C-08-04969 JF, C-09-01649 JF sf-2741542

REUBEN BERENBLAT, ANDREW PERSONETTE, EARL C. SIMPSON, LAURA MILLER, On behalf of themselves and all others similarly situated, Plaintiffs, v. APPLE INC., Defendant. THOMAS WAGNER, SCOTT MEYERS, On behalf of themselves and all others similarly situated, Plaintiffs, v. APPLE INC., Defendant.

Case No. Case No.

C-08-04969 JF C-09-01649 JF

APPLE INC.'S NOTICE OF MOTION AND MOTION TO DISMISS THE SECOND AMENDED COMPLAINT Date: February 5, 2010 Time: 9:00 am Courtroom: 3

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Dockets.Justia.com

Case5:08-cv-04969-JF Document58

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PLEASE TAKE NOTICE that on February 5, 2010 at 9:00 am, in the courtroom of the Honorable Jeremy Fogel, San Jose, California, defendant Apple Inc. ("Apple") will move to dismiss all of Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Apple moves to dismiss Plaintiffs' claims on the following grounds: (1) Plaintiffs fail to state a claim for breach of the implied warranty of merchantability because the alleged defect in plaintiffs' computers manifested itself after any implied warranties had expired; (2) Plaintiffs fail to state a claim for violation of the Unfair Competition Law because Apple's actions were not unlawful, unfair, or fraudulent; (3) Plaintiffs fail to state a claim for unjust enrichment because no such cause of action exists in California and because nothing about Apple's actions was unjust. This motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities that follows, the Request for Judicial Notice ("RJN"), and the declaration of Alexei Klestoff filed concurrently herewith, all pleadings and papers filed herein, oral argument by counsel, and such other and further matter that properly may be received by the Court.

Dated: November 5, 2009

PENELOPE A. PREOVOLOS ANDREW D. MUHLBACH ANNE M. HUNTER ALEXEI KLESTOFF MORRISON & FOERSTER LLP By: /s/ Penelope A. Preovolos Penelope A. Preovolos Attorneys for Defendant APPLE INC.

APPLE'S NOTICE OF MOTION AND MOTION TO DISMISS THE SAC CASE NOS. C-08-04969 JF, C-09-01649 JF sf-2741542

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CERTIFICATE OF SERVICE BY MAIL (Fed. R. Civ. Proc. rule 5(b)) I declare that I am employed with the law firm of Morrison & Foerster LLP, whose address is 425 Market Street, San Francisco, California 94105-2482; I am not a party to the within cause; I am over the age of eighteen years and I am readily familiar with Morrison & Foerster's practice for collection and processing of correspondence for mailing with the United States Postal Service and know that in the ordinary course of Morrison & Foerster's business practice the document described below will be deposited with the United States Postal Service on the same date that it is placed at Morrison & Foerster with postage thereon fully prepaid for collection and mailing. I further declare that on the date hereof I served a copy of: APPLE INC.'S NOTICE OF MOTION AND MOTION TO DISMISS THE SECOND AMENDED COMPLAINT APPLE INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS THE SECOND AMENDED COMPLAINT DECLARATION OF ALEXEI KLESTOFF REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF APPLE INC.'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT [PROPOSED] ORDER GRANTING APPLE INC.'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT on the following by placing a true copy thereof enclosed in a sealed envelope addressed as follows for collection and mailing at Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105-2482, in accordance with Morrison & Foerster's ordinary business practices: Douglass J. McNamara Cohen Mistein Hausfeld & Toll PLLC 1100 New York Avenue, Suite 500 Washington D.C. 20005-3964 I declare under penalty of perjury that the above is true and correct. Executed at San Francisco, California, this 5th day of November, 2009.

Mia R. Gimenez (typed)

/s/ Mia Gimenez (signature)

ATTESTATION OF E-FILED SIGNATURE I, Penelope A. Preovolos, am the ECF User whose ID and password are being used to file this Certificate of Service. In compliance with General Order 45, X.B., I hereby attest that Mia Gimenez has read and approved this Certificate of Service and consents to its filing in this action. Dated: November 5, 2009. MORRISON & FOERSTER LLP _____/s/ Penelope A. Preovolos_____ Penelope A. Preovolos
CERTIFICATE OF SERVICE CASE NOS. C-09-01649 JF (PVT), C-09-01649 JF (PVT) sf-2762365

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