Ung et al v. Facebook, Inc.

Filing 12

Request for Judicial Notice re 10 MOTION to Dismiss FACEBOOK, INC.S MOTION TO DISMISS PLAINTIFFS CLASS ACTION COMPLAINT filed byFacebook, Inc.. (Related document(s) 10 ) (Brown, Matthew) (Filed on 7/20/2011)

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
BENJAMIN H. KLEINE (257225)
([e-mail])
JAMES B. MCARTHUR (265806)
([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendant FACEBOOK, 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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RYAN UNG, CHI CHENG and ALICE
ROSEN, on Behalf of Themselves and All
Others Similarly Situated,
Plaintiffs,

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v.
FACEBOOK, INC.,
Defendant.

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Case No. 11-CV-02829-JF-PSG
FACEBOOK, INC.’S REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
MOTION TO DISMISS PLAINTIFFS’ CLASS
ACTION COMPLAINT

Date:
Time:
Judge:
Courtroom:
Trial Date:

To be determined
To be determined
Hon. Jeremy Fogel
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Not yet set

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT pursuant to Federal Rule of Evidence 201, Defendant

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Facebook, Inc. (“Facebook”) hereby requests that the Court take judicial notice of the following

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documents in support of its Motion to Dismiss the Class Action Complaint (“Complaint”). All

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referenced exhibits are attached to the supporting Declaration of Ana Yang Muller (“Yang

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Decl.”), filed herewith:

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Exhibit A: Facebook’s Statement of Rights and Responsibilities.

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Exhibit B: Facebook’s Privacy Policy.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

FACEBOOK’s REQ. FOR JUD. NOTICE I/S/O
MOTION TO DISMISS CLASS ACTION COMPLAINT
NO. 11-CV-02829-JF-PSG

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POINTS AND AUTHORITIES IN SUPPORT OF JUDICIAL NOTICE

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The documents listed above (Exhibits A and B to the Declaration of Ana Yang Muller) are

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proper subjects for judicial notice and the Court should consider them when ruling on Facebook’s

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Motion to Dismiss the Class Action Complaint.

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I.

Legal Standards

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When ruling on a motion to dismiss, a court may consider any matter that is subject to

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judicial notice. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); Tellabs, Inc.

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v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Judicial notice is appropriate for facts

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“not subject to reasonable dispute” that are either generally known within the jurisdiction of the

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trial court or are “capable of accurate and ready determination by resort to sources whose

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accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts in this District have

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held that “as a general matter, websites and their contents may be proper subjects for judicial

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notice” provided that the party provides the court with a copy of the relevant web page. Caldwell

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v. Caldwell, No. C 05-4166, 2006 WL 618511, at *4 (N.D. Cal. Mar. 13, 2006); see also Frances

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Kenny Family Trust v. World Sav. Bank FSB, No. C 04-03724 WHA, 2005 WL 106792, at *1

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(N.D. Cal. Jan. 19, 2005) (finding content on plaintiffs’ website to be proper matter for judicial

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notice).

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Moreover, the Ninth Circuit has recognized that in ruling on a motion to dismiss, “in order

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to ‘[p]revent [] plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting . . .

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documents upon which their claims are based,’ a court may consider a writing referenced in a

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complaint but not explicitly incorporated therein if the complaint relies on the document and its

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authenticity is unquestioned.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (citing

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Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (incorporating by reference insurance

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terms of service and administrative documents because the claim necessarily relied on plaintiff

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having been a member of the insurance plan); Wietschner v. Monterey Pasta Co., 294 F. Supp. 2d

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1102, 1108-09 (N.D. Cal. 2003) (judicially noticing press releases cited in the complaint). This

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allows the court to consider the full text of a document that the plaintiff’s complaint relies on but

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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FACEBOOK’s REQ. FOR JUD. NOTICE I/S/O
MOTION TO DISMISS CLASS ACTION COMPLAINT
NO. 11-CV-02829-JF-PSG

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only partially references. See, e.g., In re Copper Mountain Sec. Litig., 311 F. Supp. 2d 857, 864

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(N.D. Cal. 2004).

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II.

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The accuracy of each of the referenced exhibits is not subject to reasonable dispute and

The Court Should Take Judicial Notice of Exhibits A and B

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can be readily determined from sources whose accuracy cannot reasonably be questioned.

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Furthermore, the Complaint references and necessarily relies on these exhibits. Therefore,

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Defendant’s Request for Judicial Notice should be granted as to each exhibit.

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Plaintiffs’ Complaint relies on Facebook’s “Statement of Rights and Responsibilities”

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(“SRR”) and Privacy Policy (which the SRR incorporates by reference). Each Facebook user

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(“User”) agrees to the SRR and Privacy Policy when he or she registers for, and continues using,

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the Facebook site. The Complaint references the terms of the SRR, noting that Facebook

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registrants are required to provide their real names. (Compl. ¶ 9.) Even if Plaintiffs had not

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explicitly referenced the SRR, because Plaintiff Ung (id. ¶ 4) and the “members” subclass (id.

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¶¶ 15, 19) are alleged to be registered members of Facebook, the Complaint necessarily relies on

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and is subject to the agreements and conditions outlined in the SRR and the Privacy Policy. See

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Parrino, 146 F.3d at 706 (incorporating by reference insurance terms of service and

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administrative documents because the claim necessarily relied on plaintiff having been a member

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of the insurance plan). The existence of these terms and the accuracy of the printouts of the terms

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attached as Exhibits A and B to the Declaration of Ana Yang Muller cannot be questioned.

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Further, Plaintiffs may not seek to survive a Rule 12(b)(6) motion by omitting these

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documents. See Swartz, 476 F.3d at 763. Plaintiffs claim that they were unaware that Facebook

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used cookies associated with its “Like” button and Facebook Connect. (See Compl. ¶ 14.) But

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this allegation is contradicted by Facebook’s Privacy Policy, to which all Users agree when they

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register for the site:

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Cookie Information. We use “cookies” (small pieces of data we
store for an extended period of time on your computer, mobile
phone, or other device) to make Facebook easier to use, to make
our advertising better, and to protect both you and Facebook. For
example, we use them to store your login ID (but never your
password) to make it easier for you to login whenever you come
back to Facebook. We also use them to confirm that you are
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FACEBOOK’s REQ. FOR JUD. NOTICE I/S/O
MOTION TO DISMISS CLASS ACTION COMPLAINT
NO. 11-CV-02829-JF-PSG

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logged into Facebook, and to know when you are interacting with
Facebook Platform applications and websites, our widgets and
Share buttons, and our advertisements. You can remove or block
cookies using the settings in your browser, but in some cases that
may impact your ability to use Facebook.

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(Yang Decl., Ex. B (Privacy Policy) § 2.) These terms support dismissal of the Complaint for

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failure to state a claim for violation of the California constitutional right to privacy. Among other

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reasons, Plaintiffs fail to establish a reasonable expectation of privacy for individuals in their

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“members” subclass (including Plaintiff Ung), because Facebook plainly discloses its use of

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cookies in its Privacy Policy, which is published on its website and agreed to by all Users as a

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condition to using the website.

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III.

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For the foregoing reasons, Defendant respectfully requests that the Court take judicial

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Conclusion

notice of Exhibits A and B.

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Dated: July 20, 2011

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COOLEY LLP
/s/ Matthew D. Brown
____________________________________

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Matthew D. Brown (196972)

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Attorneys for Defendant FACEBOOK, INC.

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1228323/SF

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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FACEBOOK’s REQ. FOR JUD. NOTICE I/S/O
MOTION TO DISMISS CLASS ACTION COMPLAINT
NO. 11-CV-02829-JF-PSG