Facebook, Inc. v. MaxBounty, Inc

Filing 39

MOTION to Dismiss and Notice of Motion filed by MaxBounty, Inc. Motion Hearing set for 7/8/2011 09:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. (Attachments: # 1 Proposed Order)(Lewry, Thomas) (Filed on 5/13/2011)

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Mark B. Mizrahi, State Bar No. 179384
[e-mail]
BROOKS KUSHMAN P.C.
6701 Center Drive, Suite 610
Los Angeles, CA 90045
Tel. [phone]; Fax [phone]
Thomas A. Lewry (Admitted Pro Hac Vice)
[e-mail]
John S. LeRoy (Admitted Pro Hac Vice)
[e-mail]
BROOKS KUSHMAN P.C.
1000 Town Center, Twenty-Second Floor
Southfield, MI 48075
Tel. [phone]; Fax [phone]
Attorneys for Defendant MaxBounty, 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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FACEBOOK, INC., a Delaware
corporation,

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v.

Plaintiff,

MAXBOUNTY, INC., a Canadian
corporation,
Defendant.

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DEFENDANT MAXBOUNTY, INC.’S
NOTICE OF MOTION AND MOTION TO
DISMISS COUNTS I, II AND III OF
FACEBOOK’S AMENDED COMPLAINT
PURSUANT TO FED.R.CIV.P. 12(b)(6)
Hearing
Date: Friday, July 8, 2011
Time: 9:00 a.m.

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[Memorandum of Points and Authorities filed
concurrently herewith]

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Case No. 5:10-cv-4712-JF

NOTICE OF MOTION TO DISMISS
AMENDED COMPLAINT
Case No. 5:10-cv-4712-JF

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PLEASE TAKE NOTICE THAT on Friday, July 8, 2011, at 9:00 a.m., in Courtroom 3,

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5th Floor, 280 South 1st Street, San Jose, CA 95113, of the U.S. District Court for the Northern

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District of California, San Jose Division, U.S. District Judge Jeremy Fogel presiding, or as soon

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thereafter as this matter can be heard, Defendant MaxBounty, Inc. (“MaxBounty”) will bring its

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motion for an order dismissing Counts I-III of the Amended Complaint, pursuant to Fed.R.Civ.P.

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12(b)(6).

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The Court should dismiss Count I, because Facebook cannot prevail on its claim that

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MaxBounty has violated the “CAN-SPAM” Act. The CAN-SPAM Act prohibits “initiating” or

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“procuring” the transmission of misleading messages. Plaintiff does not allege that MaxBounty

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had any contact with anyone that sent any of the (unidentified) “electronic mail messages” at

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issue in the Amended Complaint. Furthermore, plaintiff did not plead facts that establish that the

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(unidentified) “electronic mail messages” at issue contain “header information that is materially

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false or materially misleading” as required by the CAN-SPAM Act. In addition, Plaintiff’s

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primary allegations are mere conclusions, which are not sufficient to state a cause of action.

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In Count II, Facebook alleges that MaxBounty has violated the Computer Fraud and

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Abuse Act (“CFAA”). One can only violate the CFAA by accessing a protected computer

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“without authorization” or by exceeding “authorized access.” MaxBounty and its customers are

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authorized users. Furthermore, plaintiff has not exceeded authorized access as the Ninth Circuit

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has defined that term. Therefore, Plaintiff fails to state a claim under the CFAA.

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In Count III, Facebook alleges common law fraud. Facebook fails to plead any particular

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“role in furthering” fraud or “substantial assistance in the wrong” as the law and Federal Rules

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require. Thus, Plaintiff fails to state a claim for fraud.

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NOTICE OF MOTION TO DISMISS
AMENDED COMPLAINT
Case No.10-cv-04712-JF

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The grounds for this Motion are set forth more fully in the accompanying Memorandum
of Points and Authorities. A Proposed Order is attached.

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By:_/s/ Thomas A. Lewry
Thomas A. Lewry (Admitted Pro Hac Vice)
[e-mail]
John S. LeRoy (Admitted Pro Hac Vice)
[e-mail]
BROOKS KUSHMAN P.C.
1000 Town Center, Twenty-Second Floor
Southfield, MI 48075
Tel. [phone]; Fax [phone]

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Mark B. Mizrahi, State Bar No. 179384
[e-mail]
BROOKS KUSHMAN P.C.
6701 Center Drive, Suite 610
Los Angeles, CA 90045
Tel. [phone]; Fax [phone]

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Attorneys for Defendant, MaxBounty, Inc.

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Date: May 13, 2011

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NOTICE OF MOTION TO DISMISS
AMENDED COMPLAINT
Case No.10-cv-04712-JF

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CERTIFICATE OF ELECTRONIC SERVICE
I hereby certify that on May 13, 2011 , 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, James R. McCullagh, 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: NONE.

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By: /s/ Thomas A. Lewry
[e-mail]
BROOKS KUSHMAN P.C.

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Attorneys for Defendant, MaxBounty, Inc.

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NOTICE OF MOTION TO DISMISS
AMENDED COMPLAINT
Case No.10-cv-04712-JF

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