Minkler v. Apple Inc

Filing 25

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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1 2 3 4 5 6 7 8 9 10 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. 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 16 17 18 19 NANCY ROMINE MINKLER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. APPLE INC., Defendant. 20 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 21 22 23 24 25 26 27 28 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 1 Defendant Apple Inc. (“Apple”) respectfully requests that, in determining its 2 accompanying Motion to Dismiss (“Motion”), the Court to take judicial notice, pursuant to Rule 3 201 of the Federal Rules of Evidence, of the following documents, each of which is attached to 4 the accompanying Declarations of Scott Maier (“Maier Decl.”) and Alec Cierny (“Cierny Decl.”): 5 6 7 1. True and correct copies of the one-year hardware warranties for iPhone 5 (“Hardware Warranty”). Maier Decl., Exhibit 1 (a-b). 2. A true and correct copy of the English language version of the software license 8 agreement for iPhone 5’s operating system, iOS 6.0 (“Software License Agreement”). Maier 9 Decl., Exhibit 2. 10 3. 11 12 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). 4. A copy of the Wikipedia article cited by Plaintiff in paragraph 17, n.3 of her 13 Complaint, which was obtained from http://en.wikipedia.org/wiki/Maps_(application) on 14 February 26, 2014. Cierny Decl., Exhibit 1. 15 In ruling on a motion to dismiss, the Court may consider documents that are not 16 physically attached to the complaint, if those documents are either “incorporated by reference in 17 the complaint[] or matters of judicial notice.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 18 2003). Under the doctrine of incorporation by reference, the Court may consider documents 19 specifically referred to in the complaint or upon which the complaint relies and whose 20 authenticity no party questions, “even though the plaintiff does not explicitly allege the contents 21 of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Coto 22 Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); Marder v. Lopez, 450 F.3d 445, 23 448 (9th Cir. 2006) (“A court may consider evidence on which the complaint ‘necessarily relies’ 24 if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; 25 and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion ... The 26 court may treat such a document as part of the complaint, and thus may assume that its contents 27 are true for purposes of a motion to dismiss under Rule 12(b)(6).”) (quotations and citations 28 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 1 omitted). The doctrine of incorporation by reference “applies with equal force to internet pages 2 as it does to printed material.” Knievel, 393 F.3d at 1076; see also Clerkin v. MyLife.com, Inc., 3 No. 11-CV-0527, 2011 WL 3809912, at *1 & n.2 (N.D. Cal. Aug. 29, 2011). 4 “What the [doctrine of incorporation by reference] seeks to prevent is the situation in 5 which a plaintiff is able to maintain a claim of fraud by extracting an isolated statement from a 6 document and placing it in the complaint, even though if the statement were examined in the full 7 context of the document, it would be clear that the statement was not fraudulent.” In re 8 Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citation omitted). The 9 doctrine of incorporation is intended to “prevent plaintiffs from surviving a Rule 12(b)(6) motion 10 by deliberately omitting . . . documents upon which their claims are based.” Swartz v. KPMG 11 LLP, 476 F.3d 756, 763 (9th Cir. 2007) (quotations and citations omitted). Here, the Court may 12 take judicial notice of the above-referenced documents because (1) the Complaint refers to the 13 documents; (2) the documents are central to Plaintiff's claim; (3) no party questions the 14 authenticity of the copies attached to the declarations supporting the Motion; and (4) Plaintiff 15 deliberately omitted the documents in an attempt to survive Apple’s Motion. 16 In support of her claims that Apple allegedly misrepresented Apple Map’s functionality 17 and failed to disclose its purported limitations, Plaintiff attempts to plead breaches of alleged 18 express and implied warranties without ever acknowledging the actual one-year hardware 19 warranty that applied—and still applies—to her iPhone. (Complaint ¶43; see Hardware Warranty, 20 Maier Decl. Ex. 1 (a-b).) Furthermore, in alleging that Apple breached the implied warranty of 21 merchantability, Plaintiff omits any reference to the fact that Apple properly disclaimed these 22 warranties in both the software license agreement and the hardware warranty. (See Hardware 23 Warranty, Maier Decl. Ex. 1 (a-b); Software License Agreement, Maier Decl. Ex. 2.) 24 In addition, in paragraph 109 of the Complaint, Plaintiff alleges that Apple “represented at 25 all relevant times that ‘Apple takes precautions – including administrative, technical, and physical 26 measures – to safeguard [purchaser’s] personal safety.’” (Complaint, at ¶109 (emphasis added).) 27 This allegation is flatly contradicted by the actual statement found in Apple’s Privacy Policy 28 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 1 which uses the word “information,” not safety: “Apple takes precautions – including 2 administrative, technical, and physical measures – to safeguard your personal information against 3 loss, theft, and misuse, as well as against unauthorized access, disclosure, alteration, and 4 destruction.” (See Maier Decl., Ex. 3 (a-b) (emphasis added).) 5 Similarly, in paragraph 17 of the Complaint, Plaintiff alleges “Just prior to the release of 6 Apple’s iPhone 5 on September 21, 2012, Minkler visited the Apple website which touted the 7 “non-stop work” of Apple that led to “a number of improvements to Maps.” As a reference for 8 the quote, Plaintiff cites a link to a Wikipedia article. (Id. at ¶ 17, n.3 (http://en.wikipedia.org/ 9 wiki/Maps_(application)).) This allegation is flatly contradicted by the actual Wikipedia article, 10 which reports that this statement was not made prior to the release of the iPhone 5, but was made 11 by Apple’s CFO during an October 25, 2012 earnings call held over a month after the release of 12 the iPhone 5 and “its aforementioned controversies.” (See Cierny Decl., Ex. 1.) 13 Plaintiff should not be permitted to support her claims by “cherry-picking” or 14 misrepresenting certain representations while ignoring specific disclosures. See Burlington Coat 15 Factory, 114 F.3d at 1426; Swartz, 476 F.3d at 763; Freeman v. Time, Inc., 68 F.3d 285, 289-90 16 (9th Cir. 1995) (affirming dismissal of FAL and UCL claims that a sweepstakes mailing was 17 deceptive because language qualifying the allegedly deceptive statement “appear[ed] immediately 18 next to the representations it qualifie[d] and no reasonable reader could ignore it.”). The 19 doctrines of incorporation by reference and judicial notice permit this Court to consider the 20 representations on Apple’s website and other referenced documents in their entirety in ruling on 21 Apple’s Motion. See Knievel, 393 F.3d at 1076-77; In re Autodesk, Inc. Sec. Litig., 132 F. Supp. 22 2d 833, 837-38 (N.D. Cal. 2000) ( "Thus, the court may consider the full text of a document the 23 complaint quotes only in part."). The accompanying Declarations of Scott Maier and Alec Cierny 24 demonstrate the accuracy and authenticity of the referenced documents, webpages and articles, 25 and Plaintiff cannot reasonably dispute the accuracy or authenticity of these materials. 26 // 27 // 28 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 1 2 For these reasons, Apple respectfully requests that the Court grant its request for judicial notice. 3 Respectfully submitted, 4 5 6 Dated: March 3, 2014 DLA PIPER LLP (US) 7 By: 8 9 /s/ Joseph Collins JOSEPH COLLINS Attorneys for Defendant APPLE INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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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