McKinney v. Google, Inc. et al

Filing 121

REPLY (re 113 MOTION to Dismiss NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' CONSOLIDATED AMENDED COMPLAINT ) DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT filed byGoogle, Inc., HTC Corp.. (Larrabee, Matthew) (Filed on 11/28/2011)

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MATTHEW L. LARRABEE (No. 97147)
[e-mail]
DECHERT LLP
One Maritime Plaza, Suite 2300
San Francisco, California 94111-3513
Telephone: [phone]
Facsimile: 415.262.4555
STEVEN B. WEISBURD (No. 171490)
[e-mail]
DECHERT LLP
300 West 6th Street, Suite 2010
Austin, Texas 78701
Telephone: [phone]
Facsimile: 512.394.3001
Attorneys for Defendant
GOOGLE INC.

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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Lead Case No. 5:10-CV-01177-EJD
(Consolidated with No. 5:10-CV-03897-EJD)

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In re Google Phone Litigation
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DEFENDANTS’ REPLY BRIEF IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED
AMENDED COMPLAINT
Date:
Time:
Dept:
Judge:

February 3, 2012
9:00 a.m.
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Hon. Edward J. Davila

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DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

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TABLE OF CONTENTS

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Page

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I.

INTRODUCTION .............................................................................................................. 1

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II.

ARGUMENT ...................................................................................................................... 3
A.

Plaintiffs’ Misrepresentation-Based Claims Under The UCL And CLRA
Must Be Dismissed, This Time Without Leave To Amend.................................... 3

B.
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Plaintiffs’ Implied Warranty Of Merchantability Claim Also Fails For
Multiple Reasons, And Should Be Dismissed With Prejudice ............................... 6

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1.

Plaintiffs’ Implied Warranty Claim Remains Preempted ........................... 7

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2.

Plaintiffs Fail To Plead Facts Showing The Nexus One Is Not
Merchantable............................................................................................... 9

3.

Google’s Lawful Disclaimer Of Any Implied Warranty Of
Merchantability Also Defeats The Claim ................................................. 12

4.

Plaintiffs’ Implied Warranty Claim Against HTC Also Fails
Because Plaintiffs Lack Privity With HTC............................................... 13

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C.

All Of Plaintiff’s Claims Are Preempted Under The FCA ................................... 14

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II.

CONCLUSION ................................................................................................................. 15

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-iDEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

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TABLE OF AUTHORITIES

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Page(s)

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FEDERAL CASES

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Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) .............................................................................................................. 9

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Baltazar v. Apple, Inc.,
2011 U.S. Dist. LEXIS 13187 (N.D. Cal. Feb. 10, 2011)......................................................... 6
Baltazar v. Apple, Inc.,
2011 U.S. Dist. LEXIS 96140 (N.D. Cal. Aug. 26, 2011).............................................. 2, 6, 11
Bastien v. AT&T Wireless Servs., Inc.,
205 F.3d 983 (7th Cir. 2000)............................................................................................. 14, 15
Birdsong v. Waggoner,
590 F.3d 955 (9th Cir. 2009)............................................................................................... 9, 11
In re iPhone Application Litig.,
2011 WL 4403963 (N.D. Cal. Sept. 20, 2011) ....................................................................... 13
Inter-Mark USA, Inc. v. Intuit, Inc.,
2008 U.S. Dist. LEXIS 18834 (N.D. Cal. Feb. 27, 2008)................................................. 12, 13

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Kearns v. Ford Motor Co.,
567 F.3d 1120 (9th Cir. 2009)........................................................................................... 3, 4, 5
Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005)................................................................................................... 6
Legrama v. Fremont Inv. & Loan,
2010 WL 5071600 (N.D. Cal. Dec. 7, 2010) .......................................................................... 13

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Long v. Hewlett-Packard Co.,
2007 U.S. Dist. LEXIS 79262 (N.D. Cal. July 27, 2007) ....................................................... 12
Metropolitan Life Ins. Co. v. Taylor,
481 U.S. 58 (1987) .................................................................................................................... 9
Rosenberg v. Nextel Communs.,
2001 U.S. Dist. LEXIS 19147 (N.D. Ill. Nov. 13, 2001).......................................................... 9

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Russell v. Sprint Corp.,
264 F. Supp. 2d 955 (D. Kan. 2003) ......................................................................................... 9
Salsgiver Communs., Inc. v. Consol. Communs. Holdings, Inc.,
2008 U.S. Dist. LEXIS 50320 (W.D. Pa. June 30, 2008) ......................................................... 9
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CASE NO. 5:10-CV-01177-EJD

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Siemens Credit Corp. v. Newlands,
905 F. Supp. 757 (N.D. Cal. 1994) ......................................................................................... 13
Stearns v. Select Comfort Retail Corp.,
2009 WL 1635931 (N.D. Cal. 2009)....................................................................................... 11

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Tietsworth v. Sears, Roebuck & Co.,
720 F. Supp. 2d 1123 (N.D. Cal. 2010) ........................................................................ 2, 10, 11

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CALIFORNIA CASES

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Aron v. U-Haul Co. of California,
143 Cal. App. 4th 796 (2006).................................................................................................. 13

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Isip v. Mercedes-Benz USA, LLC,
155 Cal. App. 4th 19 (2007).................................................................................................... 12
FEDERAL STATUTES
47 U.S.C. § 332(c)(3)............................................................................................................ 1, 7, 15

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CALIFORNIA STATUTES
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CAL. COM. CODE § 1201(b)(10) .................................................................................................... 12
OTHER AUTHORITIES
Federal Rule of Civil Procedure 9(b) ..................................................................................... passim

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- iii DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

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I.

INTRODUCTION
Plaintiffs’ Opposition (“Opp.”) merely underscores why the motion to dismiss filed by

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Defendants Google Inc. (“Google”) and HTC Corporation (“HTC”) should be granted, this time

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without leave to amend. In their attempt to evade dismissal, Plaintiffs are forced to run away

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from the actual allegations of their own Consolidated Amended Complaint (“CAC”) and seek

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refuge in new-found assertions in their Opposition that are contradicted by their own pleading and

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their own counsel’s prior statements on the record. Once again, Plaintiffs again have no credible

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responses to Defendants’ many independently dispositive arguments for dismissal.

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In accordance with Ninth Circuit law and this Court’s own orders in McKinney and

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Nabors, Plaintiffs’ misrepresentation-based claims under the CLRA and UCL (Second and Third

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Causes of Action) must be dismissed for failure to satisfy Federal Rule of Civil Procedure 9(b).

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As before, the CAC fails to plead with particularity any misrepresentations about the Nexus One

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by Google or HTC, and also fails to plead with particularity facts sufficient to show Plaintiffs’

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actual reliance thereon. Remarkably, Plaintiffs ignore this Court’s Rule 9(b) rulings in this case,

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and merely repeat, verbatim, the same failed arguments they advanced before.

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For multiple reasons, Plaintiffs’ “implied warranty of merchantability” claim (First Cause

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of Action) also must be dismissed. Despite Plaintiffs’ rhetoric in their Opposition, the claim pled

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in the CAC remains preempted under 47 U.S.C. § 332(c)(3) because, as before, it is inextricably

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intertwined with preempted attacks on the sufficiency of T-Mobile’s 3G network – a wireless

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network that, as the CAC continues to allege, “was not designed” to and in fact “did not” provide

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consistent 3G connectivity for Nexus One users. CAC, ¶¶ 51, 52; see also id., ¶ 58 (alleging that

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3G connectivity problems were caused by T-Mobile’s deficient network “and/or” the Nexus One

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device itself). Supported by nothing but their counsel’s ipse dixit, Plaintiffs pretend that the CAC

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omits any reference to T-Mobile’s 3G network as wholly or partially responsible for the Nexus

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One’s alleged failure to provide consistent 3G connectivity, and that their CAC identifies an

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actual “defect” in the Nexus One that is solely responsible. Opp. at 1, 5. But these assertions are

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refuted by the CAC’s allegations. The CAC does not plead any new and different facts

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establishing that any “actual defect” in the Nexus One is what caused the alleged 3G connectivity

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DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

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problems. Rather, it contains the same conclusory allegations as those in prior versions of this

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claim, which Judge Ware and this Court dismissed on preemption grounds.

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Plaintiffs’ Opposition also fails to rebut Defendants’ other independently dispositive state-

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law grounds for dismissal of the CAC’s implied warranty claim. Indeed, Plaintiffs have no

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credible response to Defendants’ argument that Plaintiffs’ attack on the consistency of the Nexus

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One’s “3G” connectivity – as well as related allegations about dropped calls or slower data

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transfer when the device switches to a 2G/EDGE network because 3G coverage is unavailable –

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cannot support an implied warranty of merchantability claim. As the CAC alleges, the Nexus

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One’s phone and data functions still operate in those instances when the Nexus One switches to a

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2G/EDGE network because 3G service is unavailable. See CAC, ¶¶ 46, 57. The CAC’s

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allegations also undermine Plaintiffs’ new contention that the “heart” of the claim “is that the

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[Nexus One] does not work at all.” Opp. at 7 (emphasis in original). This unpled (and untrue)

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theory also flies in the face of their counsel’s own statement on the record to Judge Ware that the

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claim in this case is “not [that] the phone won’t operate at all” but “that the phone vacillates

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between 2G and 3G.”1

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There is no legal merit to Plaintiffs’ unprecedented claim that the Nexus One is not

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“merchantable” to the extent it fails to maintain consistent 3G connectivity, or users experience

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dropped or lost calls or slower data transfer when the device switches to a 2G network because

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3G coverage is unavailable. Neither the inconvenience that Plaintiffs allegedly experience from

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slower data transfer or having to re-initiate a call that is dropped when the device switches to a

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2G/EDGE network, nor the fact that the Nexus One does not live up to Plaintiffs’ expectation that

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it would maintain consistent 3G connectivity, can support any claim for breach of the implied

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warranty of merchantability. See American Suzuki Motor Corp. v. Superior Court (Carney), 37

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Cal. App. 4th 1291, 1296 (1995); Baltazar v. Apple, Inc., 2011 U.S. Dist. LEXIS 96140, *10

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(N.D. Cal. Aug. 26, 2011); Tietsworth v. Sears, Roebuck & Co., 720 F. Supp. 2d 1123, 1142-43

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(N.D. Cal. 2010).2

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Nov. 1, 2010 McKinney Hr’g Tr. at 24:3-5 (statements of Plaintiff’s counsel; emphasis added).

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While smartphones (like the Nexus One and others) are a major technological advance that
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DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

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Finally, Google’s disclaimer of any implied warranties in its Nexus One “Terms of Sale”

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agreement with Plaintiffs, and Plaintiffs lack of privity with HTC, also require dismissal of the

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claim. Google’s conspicuous disclaimer of any implied warranty of merchantability is entirely

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enforceable, and no different than comparable disclaimers courts routinely enforce in dismissing

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implied warranty claims. Further, Plaintiffs do not dispute that they are not in “privity” with

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HTC, and instead rely on baseless third-party beneficiary arguments that are not even pled in the

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CAC. As explained further below, Defendants’ motion should be granted, with prejudice.

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II.

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ARGUMENT
A.

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Plaintiffs’ Misrepresentation-Based Claims Under The UCL And CLRA
Must Be Dismissed, This Time Without Leave To Amend.

Plaintiffs repeatedly have been warned that their misrepresentation-based claims and

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allegations must be pled with Rule 9(b) particularity or they will be dismissed. One year ago,

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Judge Ware granted leave to amend only upon Plaintiff counsel’s assurance that they would

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identify with particularity some “representation” actually made by Google and HTC that the

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Nexus One “will consistently function at 3G all of the time.”3 After Plaintiffs’ counsel failed to

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do so, Google and HTC again filed motions to dismiss Plaintiffs’ misrepresentation-based claims

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under Rule 9(b), which this Court granted in both McKinney and Nabors. As this Court’s orders

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made clear, Rule 9(b) applies to all claims premised on “misrepresentations” and related

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omissions under Kearns v. Ford Motor Co., 567 F.3d 1120, 1125-27 (9th Cir. 2009), including

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Plaintiffs’ CLRA and UCL claims in this case.4 The Court then dismissed both claims for failure

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enable users to talk on the phone and use data services with vastly greater mobility than
traditional land-based lines and devices, an inconvenience accompanying this innovation is that
mobile calls may be dropped or lost at times, as smartphone users have commonly experienced
and come to expect from time to time.
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Nov. 1, 2010 McKinney Hr’g Tr. at 24:24-25:4; see also Nov. 16, 2010 McKinney Order, at 17.
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See, e.g., Aug. 30, 2011 McKinney Order, at 8 (“Because McKinney’s California Consumer
Legal Remedies Act (‘CLRA’) claims are based on alleged misrepresentations, they must be pled
with Rule 9(b) particularity.”); id. at 9-10 (dismissing under Rule 9(b) FAL and UCL claims
premised on alleged misrepresentations); see also Aug. 30, 2011 Nabors Order, at 8-11 (same).
“A claim based on a nondisclosure or omission is a claim for misrepresentation,” and “must be
pleaded with particularity under Rule 9(b).” Aug. 30, 2011 McKinney Order, at 7 (citing Kearns,
567 F.3d at 1127); Aug. 30, 2011 Nabors Order, at 7 (same).
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to satisfy Rule 9(b) because Plaintiffs did not plead with particularity any misrepresentations by

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Google or HTC, or facts sufficient to show their actual reliance on any such misrepresentations.5

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Google and HTC again move to dismiss the CAC’s misrepresentation-based CLRA and UCL

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claims because they are still not pled with Rule 9(b) particularity. See Opening Brief at 8-15.

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Given the procedural history in this case, Plaintiffs’ Opposition is simply incredible.

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Plaintiffs literally ignore Defendants’ arguments and this Court’s Rule 9(b) rulings in its August

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30, 2011 orders in McKinney and Nabors, and just reassert the same failed arguments they

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advanced before. Compare Opp. at 9-14; with McKinney Opp. to Defs.’ Motion to Dismiss

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Second Amended Complaint (“SAC”) (Doc. No. 88, dated Apr. 4, 2011), at 7-12; Nabors Opp. to

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Google’s Motion to Dismiss First Amended Complaint (“FAC”) (Doc. No. 30, dated Apr. 4,

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2011), at 7-11.

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Plaintiffs’ suggestion that their misrepresentation-based claims under the CLRA and UCL

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are “not subject to Rule 9(b)” (Opp. at 9) is meritless. Plaintiffs’ CLRA claim in the CAC is

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premised entirely on Google and HTC’s claimed misrepresentations and related omissions in

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advertisements for the Nexus One, and Plaintiffs’ UCL claim attacks the same supposed

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misrepresentations under section 17200’s “fraudulent” prong while also borrowing the CLRA

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claim in support of its allegation that Google and HTC violated section 17200’s “unlawful” and

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“unfair” prongs. See CAC, ¶¶ 97-114; Opening Brief at 8-9. Thus, Rule 9(b) clearly applies to

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the CAC’s misrepresentation-based claims, just as the Ninth Circuit held that the

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misrepresentation-based CLRA and UCL claims in Kearns were governed by Rule 9(b).6

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See Aug. 30, 2011 McKinney Order, at 7-11; Aug. 30, 2011 Nabors Order, at 6-11. Along with
their other misrepresentation-based claims, Plaintiffs’ CLRA and UCL claims were dismissed
under Rule 9(b) because, inter alia, Plaintiffs “fail[ed] to identify a single advertisement or
commercial in which HTC or Google made any statements about the phone and 3G wireless
network connections,” nor did they plead with particularity facts sufficient to show their actual
reliance thereon. Id. Plaintiffs “failed to allege any facts showing that [Defendants] actually
stated that [the Nexus One] would provide 3G connectivity, much less any consistent level of 3G
connectivity”; Plaintiffs “[did] not allege that the phone does not function at least some of the
time by connecting to a 3G network”; and Plaintiffs nowhere pled with particularity any instance
in which Google or HTC “claimed that the phone would connect to 3G for any specific period of
time.” Aug. 30, 2011 McKinney Order, at 9-11; accord Aug. 30, 2011 Nabors Order, at 8-11.
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Indeed, in its McKinney and Nabors orders, this Court has already ruled, correctly, that Rule
9(b) applies to Plaintiffs’ claims of misrepresentation and related omissions in this case –
including their CLRA and UCL claims. See p. 3 & n.3, supra. The few authorities Plaintiffs
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It is equally clear that, as before, Plaintiffs’ CLRA and UCL claims in the CAC based on

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alleged “misrepresentations” and related “omissions” must be dismissed under Rule 9(b). This

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Court’s McKinney and Nabors orders detailed the multiple ways in which Plaintiffs’ conclusory

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allegations in their prior complaints failed to satisfy Rule 9(b). See Aug. 30, 2011 McKinney

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Order, at 8-11; Aug. 30, 2011 Nabors Order, at 7-11. The CAC’s allegations do not remotely

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cure any of these deficiencies, or respond to Defendants’ arguments why they still fail to satisfy

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Rule 9(b). See Opening Brief at 8-15. Plaintiffs ignore both Defendants’ arguments and this

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Court’s prior orders, and merely assert (in the same words as before) that they “have satisfied

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Rule 9(b)’s pleading requirements” because they supposedly have “discussed adequately the

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representations made by Defendants” and “made clear that they relied on Defendant’s

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misrepresentations and omissions.” Opp. at 9, 11.

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It is dispositive that the CAC fails to plead with Rule 9(b) particularity any instance in

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which either Google or HTC misrepresented that the Nexus One would maintain any particular

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level of 3G connectivity, let alone “consistent” connectivity to 3G wireless networks, including

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T-Mobile’s 3G wireless network. Nor does the CAC plead with particularity any other

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misrepresentation by Google or HTC about the Nexus One. Plaintiffs’ Opposition simply ignores

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that – as with their prior complaints – the CAC fails to identify any statement by HTC about the

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Nexus One, and the only Google statement identified with any particularity in the CAC is the

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same entirely non-actionable statement from Google’s website that Plaintiffs quoted in their prior

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complaints, which says merely: “Experience Nexus One, the new Android phone from Google.”

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CAC, ¶ 28. As to Plaintiffs’ “omission”-based allegations, it is dispositive that the CAC fails to

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plead with particularity any statement by Google or HTC about the subject matter of the alleged

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omissions (i.e., the extent of the Nexus One’s 3G connectivity), given that “‘to be actionable,’” an

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again cite suggest merely that some elements of a common law fraud claim – such as “intent” –
need not be pled with Rule 9(b) particularity or at all under the UCL. But, as before, that in no
way excuses Plaintiffs’ failure to identify and plead with particularity some actionable
misrepresentation by Google and HTC – as required by Rule 9(b) under this Court’s orders,
Kearns, and the other authorities cited by Google and HTC. As Defendants explained in their
Opening Brief, any remaining aspect of the CAC’s UCL claim under the “unlawful” or “unfair”
prongs fails in accordance with this Court’s prior rulings, or falls along with Plaintiffs’ legally
deficient claim for breach of implied warranty. See Opening Brief, at 6, 10, 16-17.
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“‘omission must be contrary to a representation actually made by the defendant.’” Aug. 30, 2011

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McKinney Order, at 9 (quoting Daugherty v. American Honda Motor Co., 144 Cal. App. 4th 824,

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835 (2006)); Aug. 30, 2011 Nabors Order, at 8-9 (same); see also Baltazar v. Apple, Inc., 2011

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U.S. Dist. LEXIS 13187, *11 (N.D. Cal. Feb. 10, 2011).7

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Finally, the CAC fails to plead with particularity facts sufficient to show that Plaintiffs

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actually relied on any supposed misrepresentation about the Nexus One made by Google or HTC.

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See Opening Brief at 14-16. As before, Plaintiffs “merely assert[] that [they] based [their]

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decision to buy the [Nexus One] on Google and HTC’s misrepresentations but ha[ve] not

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particularly identified any representation upon which [they] relied or alleged facts showing [their]

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actual and reasonable reliance on any such representations.” Aug. 30, 2011 McKinney Order at 8;

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Aug. 30, 2011 Nabors Order at 8 (same). Plaintiffs also have no credible response to Defendants’

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arguments that the terms and disclaimers in the parties’ agreements refute the Plaintiffs’

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misrepresentation and reasonable reliance allegations. Opening Brief at 15-16.8

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B.

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Plaintiffs’ Implied Warranty Of Merchantability Claim Also Fails For
Multiple Reasons, And Should Be Dismissed With Prejudice.

Unable to plead with Rule 9(b) particularity any actual promise by Google and HTC that
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As this Court has ruled, to plead the circumstances of an omission with Rule 9(b) particularity,
Plaintiffs must “‘describe the content of the omission and where the omitted information should
or could have been revealed, as well as provide representative samples of advertisements, offers,
or other representations that plaintiff relied on to make her purchase and that failed to include the
allegedly omitted information.’” Aug. 30, 2011 McKinney Order at 7-8 (quoting Marolda v.
Symantec Corp., 672 F. Supp. 2d 992, 1002 (N.D. Cal. 2009)). Plaintiffs ignore this aspect of the
Court’s orders as well as Defendants’ arguments based on it. See Opening Brief at 13.
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At most, Plaintiffs argue that the Court should not consider the HTC Limited Warranty because
it “was neither referenced in, nor attached to, the complaint or any previous complaint.” Opp. at
4. But this argument fails – given that the Ninth Circuit “has extended the ‘incorporation by
reference’ doctrine to situations in which the plaintiff’s claim depends on the contents of a
document, the defendant attaches the document to its motion to dismiss, and the parties do not
dispute the authenticity of the document, even though the plaintiff does not explicitly allege the
contents of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.
2005). It is beside the point, in other words, that Plaintiffs have avoided alleging or attaching the
HTC Limited Warranty. Because HTC attached the warranty to Defendants’ joint motion to
dismiss, Plaintiffs do not contest its authenticity, and, as in Baltazar, 2011 U.S. Dist. LEXIS
96140, at *13, the disclaimers therein undermine Plaintiffs’ claim, the HTC Limited Warranty is
properly before the Court under Knievel. Moreover, the “Terms of Sale” with Plaintiffs, which
Plaintiffs did attach to their original complaint, itself incorporates by reference the HTC Limited
Warranty. See Exh. 1 to Opening Brief at 4.
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the Nexus One would provide consistent 3G connectivity and never experience any dropped or

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missed calls, Plaintiffs attempt to imply such a guarantee based on the “implied warranty of

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merchantability.” The effort fails for multiple reasons. Indeed, the implied warranty claim pled

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in the CAC remains preempted by the Federal Communications Act, 47 U.S.C. § 332(c)(3)

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(“FCA”), and also fails under state law because (i) the CAC fails to allege facts showing that the

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Nexus One is not merchantable under the governing authorities; (ii) Google’s legally enforceable

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disclaimer of implied warranties undermines the claim; and (iii) Plaintiffs’ lack privity with HTC.

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Opening Brief at 17-21. Plaintiffs’ Opposition offers no credible response to these independently

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dispositive arguments.

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1.

Plaintiffs’ Implied Warranty Claim Remains Preempted.

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As pled, the CAC’s implied warranty of merchantability claim alleges that the Nexus One

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is supposedly defective because it fails to maintain “consistent” connectivity to T-Mobile’s “3G”

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wireless network, and allegedly results in “a number of missed and dropped phone calls” when

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the device switches to a slower 2G/EDGE network when T-Mobile’s 3G wireless network is

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unavailable. CAC, ¶¶ 86-87; see also Opening Brief at 6. Both Judge Ware and this Court

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dismissed Plaintiffs’ prior claims as preempted under 47 U.S.C. § 332(c)(3), and the CAC’s

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barely modified version of the same claim remains preempted. It is inextricably tied to, and

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inseparable from, FCA-preempted issues related to the alleged insufficiency of T-Mobile’s 3G

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wireless network to provide consistent 3G connectivity. See Opening Brief at 17-19.

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Plaintiffs’ Opposition wrongly asserts that they have “cured the defects in their previous

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complaints” because – according to Plaintiffs – the CAC “no longer allege[s] that T-Mobile’s

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network” failed to provide sufficient 3G connectivity for Nexus One users, and instead

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“specifically allege[s] that the 3G connectivity issues are the result of a defect in the phone, and

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not with T-Mobile’s 3G network.” Opp. at 1-2 & n.1; see also id. at 5. These assertions of

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Plaintiffs’ counsel are unsupported and contradicted by the CAC itself – which indisputably

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alleges, once again, that (1) “T-Mobile’s 3G network” was “not designed to provide consistent

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connectivity to its 3G network for Google Phone users” and in fact “did not provide consistent 3G

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-7DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
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performance for Google Phone purchasers,” CAC, ¶¶ 51,9 52 (emphasis added); and (2) the 3G

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connectivity problems Plaintiffs allegedly experienced were caused by T-Mobile’s “inferior” 3G

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network “and/or” some possible problem with the Nexus One device itself. Id., ¶¶ 58, 63. This

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Court cited these allegations in Plaintiffs’ prior complaints as supporting FCA preemption, and

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they again support preemption of the CAC’s implied warranty claim. See Opening Brief at 17-18.

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Equally baseless is Plaintiffs’ contention that the CAC alleges a claim based on an “actual

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defect” in the Nexus One. Opp. at 6. Plaintiffs added no new allegations to the CAC that

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identify any “actual defect” in the Nexus One, as distinct and separable from the numerous

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alleged deficiencies in T-Mobile’s 3G network, that supposedly caused the device’s failure to

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provide consistent 3G connectivity. Plaintiffs ignore Defendants’ extensive showing that the

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CAC’s allegations are either the same or not materially different from the conclusory and

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insufficient allegations in Plaintiffs’ prior preempted versions of the same claim. See Opening

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Brief, at 5-6, 18-19.10 Thus, Plaintiffs still have nothing but mere possibilities to support any

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claim that there is some identifiable defect in the Nexus One that is even partially responsible –

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much less independently and entirely responsible – for Plaintiffs’ alleged failure to receiving

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“consistent” connectivity to T-Mobile’s 3G network. Id. at 18-19; see also McKinney Opp. to

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Mot. to Dismiss SAC (April 4, 2011), at 18 (“it is possible that the [T-Mobile] cellular network

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was the cause of McKinney’s [failure to obtain consistent 3G connectivity],” but “also is possible

19

that her problems were caused by failures of the [Nexus One]”); Nov. 1, 2010 Hr’g Tr. 26:20-

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27:2) (Plaintiff’s counsel does not know “whether or not it was the phone or the network”: “It

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could have been either, … or it could have been both.”). Nothing has changed – and the CAC

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Plaintiffs’ Opposition fastens on a typo in the Opening Brief that cited paragraph 59 instead of
51 of the CAC. See Opp. at 5 (claiming that paragraph 59 of their complaint does not challenge
T-Mobile’s network and that any such allegations were “removed” from the complaint). The
precise language Defendants quote appears in paragraph 51. Plaintiffs’ suggestion that they
“removed” from the CAC the language Defendants had quoted, which this Court previously
pointed to in support of its FCA preemption ruling, is demonstrably false.
10

Rather than cite to any new allegations to support their contention, Plaintiffs continue to rely on
prior assertions and allegations that have merely been cut and pasted from their prior complaints.
Compare CAC ¶¶ 1, 8, 21, 43, 47, 48, 50, 57, 86, 99; with McKinney SAC ¶¶ 1, 4, 13, 50, 54, 55,
57, 64, 101, 95. Also compare CAC ¶¶ 15, 61; with Nabors FAC, ¶¶ 7, 62.
-8DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
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most certainly does not include allegations sufficient to state a viable implied warranty claim that

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is “plausible on its face” and not just a “possibility.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

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(2009).

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Finally, Plaintiffs’ reliance on “complete preemption” cases (Opp. at 4-5) is misplaced. In

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those cases, courts remanded to state court improperly removed cases because section 332(c)(3)

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of the FCA does not “completely preempt all state law claims.” Id. at 4. The “complete

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preemption” doctrine is not at issue here. It applies when Congress intends the preemptive force

8

of federal law to be so “extraordinary” that it “converts an ordinary state common law complaint

9

into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metro. Life Ins.

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Co. v. Taylor, 481 U.S. 58, 65 (1987). As Plaintiffs’ cited cases confirm, the “jurisdictional

11

doctrine of complete preemption” is “distinct” from, and “should not be … confused” with, the

12

substantive question of whether a state-law claim is preempted – the precise issue here. Salsgiver

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Communs., Inc. v. Consol. Communs. Holdings, Inc., 2008 U.S. Dist. LEXIS 50320, **15, 19-20

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(W.D. Pa. June 30, 2008). “Even if the complete preemption [doctrine] does not apply, the

15

defendant may nonetheless claim federal preemption as [a] defense” to the state-law claims

16

asserted. Id. (citation omitted). Here, McKinney was removed to federal court under the Class

17

Action Fairness Act (“CAFA”), and Nabors was filed in federal court under CAFA; in neither

18

case does jurisdiction depend upon the presence of a federal question. Thus, Plaintiffs’ “complete

19

preemption” cases are inapposite. Russell v. Sprint Corp., 264 F. Supp. 2d 955, 960 (D. Kan.

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2003) (“Section 332 and related provisions do not serve as a basis for removal under the

21

complete preemption doctrine.”) (emphasis added); Rosenberg v. Nextel Communs., 2001 U.S.

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Dist. LEXIS 19147, *4-5 (N.D. Ill. Nov. 13, 2001) (same).

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2.

Plaintiffs Fail To Plead Facts Showing The Nexus One Is Not
Merchantable.

As Plaintiffs admit, the implied warranty of merchantability guarantees that products have
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only “a minimum level of quality” and are free of fundamental defects “so basic” that they render
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the product not “merchantable” and “unfit for its ordinary purpose.” American Suzuki Motor
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Corp., 37 Cal. App. 4th at 1295-96; see also Birdsong v. Apple, Inc., 590 F.3d 955, 958 (9th Cir.
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-9DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
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2009); Tietsworth, 720 F. Supp. 2d at 1142. Plaintiffs’ “inconsistent” 3G connectivity allegations

2

cannot support any claim for breach of the implied warranty of merchantability given that, as

3

Plaintiffs admit in the CAC, the Nexus One’s phone and data functions can and do function and

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operate when 3G connectivity is unavailable and the device switches to a 2G network. CAC, ¶¶

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46, 57.

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Plaintiffs now pretend that the “heart” of the CAC’s implied warranty claim is that the

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Nexus One “does not work at all.” Opp. at 7. But the claim pled in the CAC is not that the

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Nexus One does not work at all; rather, it is that the Nexus One is supposedly defective because it

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fails to maintain “consistent” connectivity to T-Mobile’s “3G” wireless network, and allegedly

10

results in “a number of missed and dropped phone calls” when that network is unavailable and the

11

device switches to a slower 2G/EDGE network. CAC, ¶¶ 86-87.11 Plaintiffs’ revisionist theory

12

that the Nexus One “does not work at all” also flies in the face of their counsel’s statement to

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Judge Ware that their claim is “not the phone won’t operate at all” but “that the phone vacillates

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between 2G and 3G.” Nov. 1, 2010 Hr’g Tr. at 24:3-5.

15

In any event, the fact that the Nexus One switches to a 2G/EDGE network when 3G

16

coverage is unavailable is not a defect in the device. Rather, as Plaintiffs admit in the CAC, this

17

is how the Nexus One (like other smartphones) is “designed” to operate. CAC, ¶ 57. As Judge

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Likewise, Plaintiffs new-found contention that their claim is based on the Nexus One’s
complete failure to connect at all to “any wireless network” (Opp. at 6) is contrary to the
consistent 3G connectivity allegations actually pled in the First Cause of Action, CAC, ¶ 86, and
also refuted by countless other allegations in the Consolidated Amended Complaint. See, e.g.,
CAC ¶ 47 (“Plaintiffs and other members of the Class experience connectivity on the 3G
wireless network only a fraction of the time they are connected to the T-Mobile’s 3G wireless
network, or receive no 3G connectivity at all for a significant portion of time”); ¶ 48 (McKinney
has had “3G service on later Google Phones that can best be described as sporadic and
inconsistent”); ¶ 51 (“T-Mobile’s network did not provide consistent 3G performance for Google
Phone purchasers”); ¶ 52 (“T-Mobile 3G network was not designed to provide consistent
connectivity to its 3G network for Google Phone users”); ¶ 55 (Nexus One “cannot maintain
consistent 3G service”); ¶ 63 (class members are “locked” into service plan “with inferior TMobile 3G wireless network connectivity”); ¶ 72 (“Plaintiffs have received, at best, sporadic 3G
speed or connection to a 3G network with their respective Google Phones”); ¶ 86 (Nexus One
“cannot perform its ordinary and represented purpose because it does not provide consistent
connection to a 3G wireless network”) (emphases added). Moreover, given that both Plaintiffs
have used the Nexus One only on T-Mobile’s cellular network, they plainly “lack standing” to
assert claims and make allegations about the Nexus One’s operation on the wireless networks of
any other cellular providers. Opening Brief at 4 & n.5.
- 10 DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

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Ware observed, it arguably would be a “weakness in the phone” if the Nexus One was not

2

designed to connect to a slower 2G/EDGE network when 3G coverage is unavailable. Nov. 1,

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2010 Hr’g Tr. at 24:3-19 (addressing plaintiff’s criticism of the Nexus One for “vacillat[ing]

4

between 2G and 3G,” and stating that it “might be a weakness in the phone” if it connected only

5

to a 3G network because users may “need 2G” to ensure that they have “consistent connectivity at

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whatever speed”). This aspect of the Nexus One’s design and operation is thus hardly a “defect”

7

– particularly given Plaintiffs’ allegations that T-Mobile’s 3G network was not designed to and

8

does not provide consistent 3G connectivity for Nexus One users. See CAC, ¶¶ 51, 52.

9

But even if the complained-of aspects of the Nexus One could somehow be construed as a

10

product defect, they do not constitute the sort of “fundamental” defect that renders the Nexus One

11

not “merchantable” under the governing authorities. Tietsworth, 720 F. Supp. 2d at 1142; see

12

also Birdsong, 590 F.3d at 958; Baltazar v. Apple, Inc., 2011 U.S. Dist. LEXIS 96140, at *10.

13

Even if it were somehow Plaintiffs’ subjective expectation that the they would receive

14

“consistent” 3G connectivity and that the Nexus One would never have any dropped calls (which

15

no reasonable consumer could expect from the Nexus One or other smartphones), the implied

16

warranty of merchantability does not guarantee that the product will “precisely fulfill the

17

expectation of the buyer.” American Suzuki, 37 Cal. App. 4th at 1296. Likewise, any

18

inconvenience Plaintiffs experience when the Nexus One switches between to 2G and 3G

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networks and allegedly drops or misses calls cannot support an implied warranty of

20

merchantability claim. See Baltazar, 2011 U.S. Dist. LEXIS 96140, at *10 (inconvenience

21

insufficient); Tietsworth, 720 F. Supp. 2d at 1142-43 (same).12 The Nexus One’s alleged failure

22

to maintain “consistent” 3G connectivity and resulting dropped/missed calls bear no resemblance

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to the “moldy beds” in Stearns v. Select Comfort Retail Corp., 2009 WL 1635931, *8 (N.D. Cal.

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Contrary to Plaintiffs’ assertions, Nexus One users surely can re-initiate any “dropped calls”
that they might experience – just as smartphone users do with other wireless devices that
necessarily and routinely experience connectivity issues and resulting dropped calls. Compare
Tietsworth, 720 F. Supp. 2d at 1142-43 (inconvenience in having to “restart” allegedly defective
washing machine does not support claim for breach of the implied warranty of merchantability).
If Plaintiffs’ consistent 3G connectivity and dropped/missed call allegations were sufficient, then
virtually every smartphone on the market today would not be “merchantable.”
- 11 DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

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2009), or the “vehicle that smells, lurches, clanks, and emits smoke” due to its “malodorous air-

2

conditioning,” “leaking transmission,” and “cranking brake problem” in Isip v. Mercedes-Benz

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USA, LLC, 155 Cal. App. 4th 19, 27 (2007). See Opp. at 6 (trying to rely by analogy on Stearns

4

and Isip). No merchantable new bed is moldy, nor does any merchantable new car smell, lurch,

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clank and emit smoke. But it defies law, logic and experience to say that a smartphone designed

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to operate on both 2G and 3G networks is only merchantable if users receive consistent 3G

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connectivity and never experience dropped or missed calls. Accordingly, Plaintiffs’ implied

8

warranty of merchantability claim fails as a matter of law.

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3.

Google’s Lawful Disclaimer Of Any Implied Warranty Of
Merchantability Also Defeats The Claim.

Google’s disclaimer of any implied warranty of merchantability in its “Terms of Sale”
11
agreement with Plaintiffs also defeats the First Cause of Action. As Plaintiffs do not dispute,
12
California law permits merchants to disclaim any implied warranty of merchantability so long as
13
they do so in a conspicuous fashion and specifically mention merchantability. Opening Brief at
14
22 (citing CAL. COM. CODE § 2316(2)). Courts in this district have repeatedly enforced warranty
15
disclaimers indistinguishable from the one in the Terms of Sale. See, e.g., Inter-Mark USA, Inc.
16
v. Intuit, Inc., 2008 U.S. Dist. LEXIS 18834, *21 (N.D. Cal. Feb. 27, 2008); Long v. Hewlett17
Packard Co., 2007 U.S. Dist. LEXIS 79262, *16 (N.D. Cal. July 27, 2007). Plaintiffs incorrectly
18
argue that Google’s disclaimer should not be enforced because, they say, it is not “conspicuous”
19
enough. Opp. at 8. After a bold “Disclaimer of Warranties” heading in larger font, the Terms
20
of Sale “DISCLAIMS ALL WARRANTIES” including specifically “ANY IMPLIED
21
WARRANTIES OF MERCHANTABILITY,” in language set forth in contrasting all-capitals
22
font. RFJN, Exh. 1 at p. 4. This comports with the definition of “conspicuous” in the California
23
Commercial Code – which provides that terms are “conspicuous” if they involve “language in the
24
body” of a document “in contrasting type” as compared to its “surrounding text,” following “a
25
heading” that is “in contrasting type, font, or color to the surrounding text of the same or lesser
26
size.” CAL. COM. CODE § 1201(b)(10). Plaintiffs’ assertion that Google’s warranty disclaimer
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cannot be “conspicuous” because it is on “the fourth page of a six page document,” Opp. at 8, is
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- 12 DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

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not only unsupported by section 1201(b)(10), but also contrary to law in the Northern District of

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California. See Inter-Mark USA, Inc., 2008 U.S. Dist. LEXIS 18834, at **22-23 (disclaimer “on

3

the fourth and fifth pages of a ten-page contract” held conspicuous and enforceable); accord

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Siemens Credit Corp. v. Newlands, 905 F. Supp. 757, 764-65 (N.D. Cal. 1994).13

5

While the Opposition asserts that Google’s warranty disclaimer is “unconscionable,” Opp.

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at 8, “Plaintiffs have not met their burden of establishing either procedural or substantive

7

unconscionability, both of which are required” by law. Legrama v. Fremont Inv. & Loan, 2010

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WL 5071600, **17-18 (N.D. Cal. Dec. 7, 2010); see also In re iPhone Application Litig., 2011

9

WL 4403963, *7 (N.D. Cal. Sept. 20, 2011). In fact, Plaintiffs have not even tried to satisfy their

10

burdens on either requirement, much less both, here.14 Thus, Google’s legally enforceable

11

disclaimer of any implied warranty of merchantability defeats Plaintiffs’ implied warranty claim.

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4.

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Plaintiffs’ Implied Warranty Claim Against HTC Also Fails Because
Plaintiffs Lack Privity With HTC.

Plaintiffs argue there is no requirement of vertical privity here because they are third-party
beneficiaries “of the relationship between” HTC and Google. Opp. at 8. This exception to the
13

Plaintiffs’ speculation that Google’s Terms of Sale might not have been “presented prior to”
Plaintiffs’ “purchases of their phones” (Opp. at 8) is baseless. As stated on the very first page of
the Terms of Sale, Plaintiffs “must first agree to these Terms by checking the box indicating your
acceptance of these Terms” to “place an order for the Device” on Google’s website (RJN, Exh. 1
at p. 1), and both Plaintiffs allege they bought their Nexus One devices from Google’s website,
see CAC, ¶¶ 6, 14. Moreover, Plaintiffs’ counsel themselves attached to McKinney’s original
state-court complaint the exact copy of the Terms of Sale that is before this Court, and alleged
that it constitutes and reflects the “agreement” between Google and Plaintiffs. See McKinney
Doc. No. 2 (Pl.’s Class Action Complaint (filed Jan. 20, 2010), ¶ 11 & Exh. A).
14

Nor could Plaintiffs establish that Google’s warranty disclaimer is “both procedurally and
substantively unconscionable.” Legrama, 2010 WL 5071600, at *17. Substantive
unconscionability requires a showing that the particular provision at issue is so “‘overly harsh’”
and extraordinary as to “‘shock the conscience,’” In re iPhone Application Litig., 2011 WL
4403963, at *7 (quoting Aron v. U-Haul Co. of California, 143 Cal. App. 4th 796, 808 (2006)) –
which the commonly used warranty disclaimer in the Terms of Sale most certainly is not. While
this alone is dispositive, Plaintiffs have not established procedural unconscionability either –
which demands proof of the sort of “‘oppression and surprise’” that is absent from the record
here. Id. at 8 (emphasizing that the “‘availability of alternative sources’” of competing products
or services “‘defeats any claim of oppression, because the consumer has a meaningful choice,’”
including to forego the product or service altogether) (citation omitted). In any event, courts
applying California law have repeatedly rejected assertions of unconscionability where – as here
– the claimant ignores or fails to establish either element. See id. at **7-8; Legrama, 2010 WL
5071600, at **17-18; see also Aron, 143 Cal. App. 4th at 808-09.
- 13 DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

1

vertical privity requirement, however, applies only when “a plaintiff pleads that he or she is the

2

third-party beneficiary to a contract that gives rise to the implied warranty of merchantability.”

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See In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Prac., and Prods. Liab.

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Litig., 754 F. Supp. 2d 1145, 1185 (C.D. Cal. 2010) (emphasis added). Here, by contrast, the

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CAC does not allege any such contract between HTC and Google; the best it can do is cite to an

6

online article reporting the Nexus One was “[d]eveloped in partnership with hardware

7

manufacturer HTC.” CAC, ¶ 25. Another court in this district dismissed an implied warranty

8

claim against a manufacturer on exactly this basis, rejecting the plaintiffs’ argument that no

9

vertical privity was required based on third-party beneficiary principles because the plaintiffs had

10

“failed to allege the existence of a contract involving [the manufacturer] for which Plaintiffs are

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third party beneficiaries.” In re NVIDIA GPU Litig., 2009 WL 4020104, *6-7 (N.D. Cal. Nov.

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19, 2009); see also Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023-24 (9th Cir. 2008)

13

(affirming dismissal of consumer’s implied warranty claims against automobile manufacturer,

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cautioning that “a federal court sitting in diversity is not free to create new exceptions” to the

15

requirement of vertical privity). Accordingly, and because Plaintiffs do not deny that they are not

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in privity with HTC, the implied warranty claim against HTC must be dismissed.

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C.

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Finally, Plaintiffs’ mere reprise of their prior arguments against preemption at the end of

19

their Opposition fails once again. Plaintiffs’ state-law claims still rest upon allegations that – in

20

substance – are inextricably intertwined with issues regarding the adequacy of T-Mobile’s 3G

21

network, the determination of which are preempted under the FCA. Shroyer v. New Cingular

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Wireless Servs., Inc. confirms – consistent with the FCC’s own interpretation of Bastien v. AT&T

23

Wireless Servs., Inc., 205 F.3d 983 (7th Cir. 2000) – that preemption under section 332(c) turns

24

on the “substance” of the claims at issue, not their “form.” 622 F.3d 1035, 1040 (9th Cir. 2010).

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As Shroyer notes, the Bastien plaintiffs’ claim was preempted because it relied on state consumer

26

protection law in a manner that would embroil the court in assessing the sufficiency of AT&T’s

27

cellular network. Id. By contrast, the plaintiff’s claims in Shroyer were not preempted because

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the adequacy of the challenged service was to be measured only against AT&T’s specific
- 14 -

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All Of Plaintiffs’ Claims Are Preempted Under The FCA.

DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

1

contractual obligations, and other “misrepresent[ations about] the level of service it would

2

provide” that were pled with Rule 9(b) particularity. Id. Moreover, “Bastien dealt with market

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entry” while Shroyer’s non-preempted claims did not. Id.

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Here, unlike the non-preempted claims in Shroyer, the substance of Plaintiff’s challenged

5

state-law claims are inextricably intertwined with and cannot be separated from FAC-preempted

6

questions related to the alleged insufficiency of T-Mobile’s 3G network to provide consistent 3G

7

connectivity. Plaintiffs’ continued inability to plead their misrepresentation-based allegations

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with Rule 9(b) particularity not only further distinguishes this case from Shroyer, but also makes

9

their claims even more like the preempted claims in Bastien where the plaintiffs similarly failed

10

to plead any “particular promises or representations” made by the defendant in support of their

11

conclusory “misrepresentation” allegations. Bastien, 205 F.3d at 989-90. Moreover, Plaintiffs

12

continue to ignore the CAC’s allegations that T-Mobile’s 3G network is “not designed to provide

13

consistent connectivity to its 3G network for Google Phone users” and in fact “did not provide

14

consistent 3G performance for Google Phone purchasers.” CAC, ¶¶ 51-52. Nor do Plaintiffs

15

refute Google and HTC’s argument that the CAC’s state-law claims will inescapably result in

16

protracted litigation about the adequacy or inadequacy of T-Mobile’s 3G network, and implicate

17

preempted assessments about 3G market entry and rates charged in connection with 3G service

18

and the Nexus One. Opening Brief at 17-19, 23-24. As before, the “substance” (Shroyer, 622

19

F.3d at 1040) of Plaintiffs’ claims is what triggers preemption under 47 U.S.C. § 332(c)(3), and

20

Plaintiffs’ attempt to elevate form over substance necessarily fails.

21

II.

22

CONCLUSION
The CAC is the third attempt by Plaintiffs’ counsel to state a claim against Google and

23

HTC, but like Plaintiffs’ prior complaints, it entirely fails to do so. They should not be allowed

24

yet another – fourth – bite at the apple. Google and HTC’s motion to dismiss Plaintiffs’

25

Consolidated Amended Complaint should be granted without leave to amend.

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- 15 DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD

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Dated: November 28, 2011,

Respectfully submitted,

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DECHERT LLP

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By: /s/ Steven B. Weisburd
.
Steven B. Weisburd (No. 171490)
One Maritime Plaza, Suite 2300
San Francisco, California 94111-3513
Telephone: [phone]
Facsimile: 415.262.4555

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Counsel for Defendant GOOGLE INC.

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MUNGER, TOLLES & OLSON LLP

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By: /s/ Rosemarie T. Ring
.
Rosemarie T. Ring (No. 220769)
560 Mission Street, 27th Floor
San Francisco, California 94105-2907
Telephone: [phone]
Facsimile: 415.644.6908

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Counsel for Defendant HTC CORPORATION
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- 16 DEFENDANTS’ REPLY ISO MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT
CASE NO. 5:10-CV-01177-EJD