Minkler v. Apple Inc
Filing
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Request for Judicial Notice re 24 MOTION to Dismiss Complaint filed byApple Inc. (Related document(s) 24 ) (Collins, Joseph) (Filed on 3/3/2014)
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PAUL J. HALL (SBN 066084)
paul.hall@dlapiper.com
ALEC CIERNY (SBN 275230)
alec.cierny@dlapiper.com
DLA PIPER LLP (US)
555 Mission Street, Suite 2400
San Francisco, CA 94105
Tel: (415) 836-2500
Fax: (415) 836-2501
JOSEPH COLLINS (Admitted Pro Hac Vice)
joseph.collins@dlapiper.com
DLA PIPER LLP (US)
203 North LaSalle Street, Suite 1900
Chicago, IL 60601-1293
Tel: (312) 368-4000
Fax: (312) 236-7516
Attorneys for Defendant
Apple 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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NANCY ROMINE MINKLER,
Individually and on Behalf of All Others
Similarly Situated,
Plaintiffs,
v.
APPLE INC.,
Defendant.
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CASE NO. 5:13-cv-05332-EJD
DEFENDANT APPLE INC.’S REQUEST
FOR JUDICIAL NOTICE IN SUPPORT OF
MOTION TO DISMISS COMPLAINT
DATE:
JULY 18, 2014
TIME:
9:00 A.M.
COURTROOM: 4
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DLA P IPER LLP (US)
SA N FRA NCI S CO
-1EAST\71706552.1
REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS
CASE NO. 5:13-CV-05332-EJD
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Defendant Apple Inc. (“Apple”) respectfully requests that, in determining its
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accompanying Motion to Dismiss (“Motion”), the Court to take judicial notice, pursuant to Rule
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201 of the Federal Rules of Evidence, of the following documents, each of which is attached to
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the accompanying Declarations of Scott Maier (“Maier Decl.”) and Alec Cierny (“Cierny Decl.”):
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1.
True and correct copies of the one-year hardware warranties for iPhone 5
(“Hardware Warranty”). Maier Decl., Exhibit 1 (a-b).
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A true and correct copy of the English language version of the software license
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agreement for iPhone 5’s operating system, iOS 6.0 (“Software License Agreement”). Maier
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Decl., Exhibit 2.
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3.
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True and correct copies of the customer privacy policies related to Apple’s
products, including the iPhone 5 (“Privacy Policy”). Maier Decl., Exhibit 3 (a-d).
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A copy of the Wikipedia article cited by Plaintiff in paragraph 17, n.3 of her
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Complaint, which was obtained from http://en.wikipedia.org/wiki/Maps_(application) on
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February 26, 2014. Cierny Decl., Exhibit 1.
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In ruling on a motion to dismiss, the Court may consider documents that are not
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physically attached to the complaint, if those documents are either “incorporated by reference in
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the complaint[] or matters of judicial notice.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.
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2003). Under the doctrine of incorporation by reference, the Court may consider documents
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specifically referred to in the complaint or upon which the complaint relies and whose
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authenticity no party questions, “even though the plaintiff does not explicitly allege the contents
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of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Coto
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Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); Marder v. Lopez, 450 F.3d 445,
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448 (9th Cir. 2006) (“A court may consider evidence on which the complaint ‘necessarily relies’
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if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim;
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and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion ... The
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court may treat such a document as part of the complaint, and thus may assume that its contents
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are true for purposes of a motion to dismiss under Rule 12(b)(6).”) (quotations and citations
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DLA P IPER LLP (US)
SA N FRA NCI S CO
-2EAST\71706552.1
REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS
CASE NO. 5:13-CV-05332-EJD
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omitted). The doctrine of incorporation by reference “applies with equal force to internet pages
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as it does to printed material.” Knievel, 393 F.3d at 1076; see also Clerkin v. MyLife.com, Inc.,
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No. 11-CV-0527, 2011 WL 3809912, at *1 & n.2 (N.D. Cal. Aug. 29, 2011).
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“What the [doctrine of incorporation by reference] seeks to prevent is the situation in
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which a plaintiff is able to maintain a claim of fraud by extracting an isolated statement from a
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document and placing it in the complaint, even though if the statement were examined in the full
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context of the document, it would be clear that the statement was not fraudulent.” In re
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Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citation omitted). The
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doctrine of incorporation is intended to “prevent plaintiffs from surviving a Rule 12(b)(6) motion
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by deliberately omitting . . . documents upon which their claims are based.” Swartz v. KPMG
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LLP, 476 F.3d 756, 763 (9th Cir. 2007) (quotations and citations omitted). Here, the Court may
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take judicial notice of the above-referenced documents because (1) the Complaint refers to the
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documents; (2) the documents are central to Plaintiff's claim; (3) no party questions the
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authenticity of the copies attached to the declarations supporting the Motion; and (4) Plaintiff
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deliberately omitted the documents in an attempt to survive Apple’s Motion.
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In support of her claims that Apple allegedly misrepresented Apple Map’s functionality
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and failed to disclose its purported limitations, Plaintiff attempts to plead breaches of alleged
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express and implied warranties without ever acknowledging the actual one-year hardware
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warranty that applied—and still applies—to her iPhone. (Complaint ¶43; see Hardware Warranty,
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Maier Decl. Ex. 1 (a-b).) Furthermore, in alleging that Apple breached the implied warranty of
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merchantability, Plaintiff omits any reference to the fact that Apple properly disclaimed these
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warranties in both the software license agreement and the hardware warranty. (See Hardware
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Warranty, Maier Decl. Ex. 1 (a-b); Software License Agreement, Maier Decl. Ex. 2.)
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In addition, in paragraph 109 of the Complaint, Plaintiff alleges that Apple “represented at
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all relevant times that ‘Apple takes precautions – including administrative, technical, and physical
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measures – to safeguard [purchaser’s] personal safety.’” (Complaint, at ¶109 (emphasis added).)
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This allegation is flatly contradicted by the actual statement found in Apple’s Privacy Policy
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DLA P IPER LLP (US)
SA N FRA NCI S CO
-3EAST\71706552.1
REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS
CASE NO. 5:13-CV-05332-EJD
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which uses the word “information,” not safety: “Apple takes precautions – including
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administrative, technical, and physical measures – to safeguard your personal information against
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loss, theft, and misuse, as well as against unauthorized access, disclosure, alteration, and
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destruction.” (See Maier Decl., Ex. 3 (a-b) (emphasis added).)
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Similarly, in paragraph 17 of the Complaint, Plaintiff alleges “Just prior to the release of
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Apple’s iPhone 5 on September 21, 2012, Minkler visited the Apple website which touted the
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“non-stop work” of Apple that led to “a number of improvements to Maps.” As a reference for
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the quote, Plaintiff cites a link to a Wikipedia article. (Id. at ¶ 17, n.3 (http://en.wikipedia.org/
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wiki/Maps_(application)).) This allegation is flatly contradicted by the actual Wikipedia article,
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which reports that this statement was not made prior to the release of the iPhone 5, but was made
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by Apple’s CFO during an October 25, 2012 earnings call held over a month after the release of
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the iPhone 5 and “its aforementioned controversies.” (See Cierny Decl., Ex. 1.)
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Plaintiff should not be permitted to support her claims by “cherry-picking” or
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misrepresenting certain representations while ignoring specific disclosures. See Burlington Coat
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Factory, 114 F.3d at 1426; Swartz, 476 F.3d at 763; Freeman v. Time, Inc., 68 F.3d 285, 289-90
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(9th Cir. 1995) (affirming dismissal of FAL and UCL claims that a sweepstakes mailing was
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deceptive because language qualifying the allegedly deceptive statement “appear[ed] immediately
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next to the representations it qualifie[d] and no reasonable reader could ignore it.”). The
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doctrines of incorporation by reference and judicial notice permit this Court to consider the
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representations on Apple’s website and other referenced documents in their entirety in ruling on
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Apple’s Motion. See Knievel, 393 F.3d at 1076-77; In re Autodesk, Inc. Sec. Litig., 132 F. Supp.
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2d 833, 837-38 (N.D. Cal. 2000) ( "Thus, the court may consider the full text of a document the
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complaint quotes only in part."). The accompanying Declarations of Scott Maier and Alec Cierny
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demonstrate the accuracy and authenticity of the referenced documents, webpages and articles,
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and Plaintiff cannot reasonably dispute the accuracy or authenticity of these materials.
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//
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//
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DLA P IPER LLP (US)
SA N FRA NCI S CO
-4EAST\71706552.1
REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS
CASE NO. 5:13-CV-05332-EJD
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For these reasons, Apple respectfully requests that the Court grant its request for judicial
notice.
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Respectfully submitted,
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Dated: March 3, 2014
DLA PIPER LLP (US)
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By:
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/s/ Joseph Collins
JOSEPH COLLINS
Attorneys for Defendant
APPLE INC.
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DLA P IPER LLP (US)
SA N FRA NCI S CO
-5EAST\71706552.1
REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS
CASE NO. 5:13-CV-05332-EJD
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