Facebook, Inc. v. MaxBounty, Inc

Filing 11

MOTION to Dismiss Counts I-III of the Complaint filed by MaxBounty, Inc. Motion Hearing set for 2/11/2011 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Supplement, # 2 Proposed Order)(Mizrahi, Mark) (Filed on 11/30/2010)

Facebook, Inc. v. MaxBounty, Inc

Doc. 11

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Mark B. Mizrahi CA179384 [e-mail] BROOKS KUSHMAN P.C. Howard Hughes Center 6701 Center Drive, Ste. 610 Los Angeles, CA 90045 Tel.: [phone] Fax: [phone] Attorneys for Defendant MaxBounty, Inc.

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MAXBOUNTY'S NOTICE OF MOTION TO DISMISS Case No. 5:10-cv-4712-JF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., a Delaware corporation, Plaintiff,

Case No. 5:10-cv-4712-JF (HRL) DEFENDANT MAXBOUNTY, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS COUNTS I, II AND III OF FACEBOOK'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) Hearing Date: February 11, 2011 Time: 9:00 A.M. [Memorandum of Points and Authorities filed concurrently herewith]

MAXBOUNTY, INC., a Canadian corporation,

Dockets.Justia.com

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PLEASE TAKE NOTICE THAT on Friday, February 11, 2011, at 9:00 a.m., in Courtroom 3, 5th Floor, 280 South 1st Street, San Jose, CA 95113, of the U.S. District Court for the Northern District of California, San Jose Division, U.S. District Judge Jeremy Fogel presiding, or as soon thereafter as this matter can be heard, Defendant MaxBounty, Inc. ("MaxBounty") will, and hereby does, move the Court for an order dismissing Counts I-III of the complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Count I, wherein Facebook alleges that MaxBounty has violated the "CAN-SPAM" Act, should be dismissed, because Facebook cannot prevail on this claim as a matter of law. The CAN-SPAM Act prohibits fraudulent e-mail. The customer advertisements Facebook complains about, however, are not e-mail and therefore cannot give rise to a claim under the CAN-SPAM Act. In Count II, Facebook alleges that MaxBounty has violated the Computer Fraud and Abuse Act. The relevant provision of the Act prohibits improperly using another's computer to commit fraud. Rule 9(b) requires that circumstances surrounding an alleged fraud be pled with particularity. Facebook's bald allegations of MaxBounty's conspiracy with customers to commit fraud under the Act go unexplained. Facebook's conclusory allegations, which are based solely "on information and belief," as to MaxBounty are insufficient as a matter of law. In Count III, Facebook alleges common law fraud. Similar to its unexplained allegations with respect to the Computer Fraud and Abuse Act, Facebook alleges that MaxBounty "induces" and "conspires" with its customers to make fraudulent representations. Facebook fails to plead any particular instance of inducement or conspiracy to commit fraud by MaxBounty. Facebook's claims for common law fraud fail for the same reasons as Facebook's claim under the Computer Fraud and Abuse Act fails. This Motion is based upon this Notice of Motion and Motion, the concurrently filed Memorandum of Points and Authorities in support of thereof, the pleadings and papers on file, and upon such written or oral evidence or arguments as the Court permits.

MAXBOUNTY'S NOTICE OF MOTION TO DISMISS Case No.10-cv-04712-JF

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Date: November 30, 2010 By:_/s/ Mark B. Mizrahi Mark B. Mizrahi CA179384 [e-mail] BROOKS KUSHMAN P.C. Howard Hughes Center 6701 Center Drive, Ste. 610 Los Angeles, CA 90045 Tel.: [phone]_ Fax: [phone] Counsel for Defendant MaxBounty, Inc.

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MAXBOUNTY'S NOTICE OF MOTION TO DISMISS Case No.10-cv-04712-JF 2

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CERTIFICATE OF ELECTRONIC SERVICE I hereby certify that on November 30, 2010, I electronically filed the foregoing document with the Clerk of the Court for the Northern District of California using the ECF System which will send notification to the following registered participants of the ECF System as listed on the Court's Notice of Electronic Filing: Joseph Perry Cutler and Brian Patrick Hennessy. I also certify that I have mailed by United States Postal Service the paper to the following non-participants in the ECF System: James M. McCullagh Perkins Cole LLP 1201 Third Avenue Suite 4800 Seattle, WA 98101 By: /s/ Mark B. Mizrahi Mark B. Mizrahi [e-mail] BROOKS KUSHMAN P.C. Attorneys for Defendant, MaxBountry, Inc.

MAXBOUNTY'S NOTICE OF MOTION TO DISMISS Case No.10-cv-04712-JF

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