McKinney v. Google, Inc. et al

Filing 42

Request for Judicial Notice re 41 MOTION to Dismiss FIRST AMENDED COMPLAINT filed by Google, Inc., HTC Corp.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 41 ) (Larrabee, Matthew) (Filed on 7/12/2010) Modified on 7/13/2010 (cv, COURT STAFF).

McKinney v. Google, Inc. et al

Doc. 42

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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, TX 78701 Telephone: [phone] Facsimile: 512.394.3001 Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

MARY MCKINNEY, Individually and on behalf of All others Similarly Situated, Plaintiff, v. GOOGLE INC., a Delaware Corporation; HTC CORP., a Delaware Corporation; and TMOBILE USA, INC., a Delaware Corporation, Defendants.

Case No. 5:10-CV-01177-JW REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS GOOGLE INC. AND HTC CORPORATION'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT Date: Time: Dept: Judge: November 1, 2010 9:00 a.m. 8 Hon. James Ware

DEFENDANTS' REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT CASE NO. 5:10-CV-01177-JW Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In support of their joint Motion to Dismiss the First Amended Complaint ("FAC"), Defendants Google Inc. and HTC Corporation hereby respectfully request that this Court take judicial notice, pursuant to Federal Rule of Evidence 201, of the following documents: (1) Google's Terms of Sale for the Nexus One ("Terms of Sale"), a true and correct copy of which is attached hereto as Exhibit 1; and (2) HTC's express limited warranty for the Nexus One ("HTC Limited Warranty"), a true and correct copy of which is attached hereto as Exhibit 2. As explained below, both documents are properly subject to judicial notice under settled law. I. Google's Terms Of Sale and HTC's Limited Warranty Are Properly Subject To Judicial Notice Under The Doctrine Of "Incorporation By Reference." Google's Terms of Sale and HTC's Limited Warranty may properly be considered by the Court on Defendants' joint motion to dismiss, and are subject to judicial notice under the doctrine of "incorporation by reference," Knievel v. ESPN, 393 F.3d 1068, 1076-77 (9th Cir. 2005), because they are referenced in the FAC and their authenticity cannot reasonably be questioned. As this Court has held, any documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss without converting the motion into one for summary judgment." Long v. Hewlett-Packard Co., No. 06-02816, 2007 U.S. Dist. LEXIS 79262, at **17-18 n.3 (N.D. Cal. July 27, 2007) (considering actual terms of defendant's limited warranty and disclaimer in ruling on motion to dismiss even though the agreement was not physically attached to complaint referencing it); accord Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (overruled on other grounds) (document is not "outside" complaint where its authenticity is not questioned and complaint references it). 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 2
DEFENDANTS' REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT CASE NO. 5:10-CV-01177-JW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

explicitly allege the contents of that document in the complaint." Knievel 393 F.3d at 1076-77 (under this doctrine, courts may consider on motions to dismiss any authentic documents not attached to complaint if they are central or intergral to claims asserted); see also Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (incorporation by reference applies where complaint necessarily relies on document or the contents of document are alleged in a complaint). In her FAC, Plaintiff alleges that she "entered into agreements with Defendants or their agents and received uniform warranties in connection with the purchase of [the Nexus One]." FAC, ¶ 61 (emphasis added). As Plaintiff does not and cannot dispute, her only agreement with Google is set forth and embodied in the "Terms of Sale" attached hereto as Exhibit 1. Indeed, Plaintiff and her counsel themselves attached the Google "Terms of Sale" as an exhibit to Plaintiff's original complaint in this action, which was filed in California state court and removed to this Court. That copy of the Google "Terms of Sale" is also contained in this Court's records because it is attached as Exhibit A to the Declaration of Steven K. Taylor in support of Defendant's Notice of Removal. See Docket No. 2. With respect to HTC, the only agreement or warranty Plaintiff received in connection with her purchase of the Nexus One is set forth and embodied in the "Limited Warranty," attached hereto as Exhibit 2. 1 Accordingly, Google's Terms of Sale and HTC's Limited Warranty are subject to judicial notice under the doctrine of "incorporation by reference" and may properly be considered by the Court in connection with Google and HTC's Motion to Dismiss. Indeed, courts in this district routinely use the incorporation by reference doctrine to take judicial notice of warranties that are referenced in or integral to claims, but that plaintiffs have not attached to their complaints. See, e.g., Long, supra; Hovsepian v. Apple, Inc., No. 08-5788, 2009 U.S. Dist. LEXIS 80868, **7-19 (N.D. Cal. Aug. 21, 2009) (taking judicial notice of express warranty where complaints

HTC's Limited Warranty is also attached as an exhibit to the Declaration of Rosemarie T. Ring, which establishes the authenticity of the document. The authenticity of HTC's Limited Warranty is not reasonably subject to dispute by Plaintiff. 3
DEFENDANTS' REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT CASE NO. 5:10-CV-01177-JW

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

referenced warranty and claims for relief would depend at least in part on enforceability of warranty); Datel Holdings Ltd. v. Microsoft Corp., No. 09-05535, 2010 U.S. Dist. LEXIS 40021, **14-20 (N.D. Cal. April 23, 2010) (taking judicial notice of existence and content of warranty documents where complaint alleged that contractual right with customers was not "knowingly given" at time of purchase and therefore claim depended "at least in part, on the contents of the documents"). II. The Copy Of The Google Terms of Sale That Is Part Of This Court's File Is A "Public Record" Subject To Judicial Notice. Google's Terms of Sale is also subject to judicial notice because it is contained within this Court's own public court files. Judicial notice of matters of public record ­ including the records of judicial proceedings, and the pleadings and documents contained in public court files and records ­ is entirely proper and commonplace. See, e.g., Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); see also Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). As noted, the Google Terms of Sale are attached as Exhibit A to the Declaration of Steven K. Taylor that was filed in support of Defendant's Notice of Removal. See Docket No. 2. That same document was attached by Plaintiff and her counsel to the original complaint in this action filed in Santa Clara Superior Court. 2 Consequently, Plaintiff cannot reasonably dispute the authenticity of the document because the copy of the "Terms of Sale" that Google asks this Court to judicially notice is the exact same copy that Plaintiff and her counsel themselves attached to Plaintiff's original complaint in this action, which Defendants subsequently attached to their Notice of Removal, and which is now available on ECF. This document therefore is "capable of accurate and ready determination by resort to sources whose accuracy cannot

In fact, Plaintiff used Google's Terms of Sale to establish that jurisdiction was proper in Santa Clara County, and cannot now dispute the authenticity of this document upon which she originally relied. 4
DEFENDANTS' REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT CASE NO. 5:10-CV-01177-JW

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

reasonably be questioned." Fed. R. Evid. 201(b). Accordingly, there can be no question that the Google Terms of Sale are properly subject to judicial notice, either because it is in this Court's judicial files, or under the doctrine of incorporation by reference. Dated: July 12, 2010. Respectfully submitted, DECHERT LLP By: /s/ Matthew L. Larrabee . Matthew L. Larrabee (CA SBN 97147) Steven B. Weisburd (CA SBN 171490) One Maritime Plaza, Suite 2300 San Francisco, California 94111-3513 Telephone: [phone] Facsimile: 415.262.4555 Attorneys for Defendant GOOGLE INC. MUNGER, TOLLES & OLSON LLP By: /s/ Rosemarie T. Ring .

Henry Weissmann (CA SBN 132418) Rosemarie T. Ring (CA SBN 220769) Sarala Nagala (CA SBN 258712) 560 Mission Street, 27th Floor San Francisco, California 94105-2907 Telephone: [phone] Facsimile: 415.644.6908 Attorneys for Defendant HTC CORPORATION

5
DEFENDANTS' REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT CASE NO. 5:10-CV-01177-JW