DiTirro v. Facebook, Inc.

Filing 21

Request for Judicial Notice re 20 MOTION to Dismiss First Amended Complaint; Memorandum of Points and Authorities filed byFacebook, Inc.. (Related document(s) 20 ) (Gutkin, Jeffrey) (Filed on 4/15/2014)

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
JEFFREY M. GUTKIN (216083)
([e-mail])
BENJAMIN H. KLEINE (257225)
([e-mail])
CANDACE A. JACKMAN (267599)
([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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OAKLAND DIVISION

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ANTHONY DITIRRO, KATYA
BRESLER, AND MICHELLE
SHUMATE, individually and on behalf of
others similarly situated,
Plaintiffs,
v.
FACEBOOK, INC., a Delaware
corporation,
Defendant.

Case No. 5:14-cv-00132-PJH
DEFENDANT FACEBOOK, INC.’S REQUEST
FOR CONSIDERATION OF DOCUMENTS
INCORPORATED INTO THE FIRST AMENDED
COMPLAINT, IN SUPPORT OF DEFENDANT’S
MOTION TO DISMISS FIRST AMENDED
COMPLAINT
Date:
Time:
Courtroom:
Judge:
Trial Date:

June 11, 2014
9:00 a.m.
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Hon. Phyllis J. Hamilton
None Set

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COOLEY LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

FACEBOOK’S REQUEST FOR
CONSIDERATION OF DOCUMENTS
CASE NO. 5:14-CV-00132-PJH

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NOTICE OF MOTION AND MOTION

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that on June 11, 2014 at 9:00 a.m. or as soon thereafter as this

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motion may be heard in the above-entitled Court, located at 1301 Clay Street, Oakland,

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California, in Courtroom 3, Third Floor, Defendant Facebook, Inc. (“Facebook”), in support of its

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concurrently filed Motion to Dismiss the First Amended Complaint (“Motion to Dismiss”), will

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request that the Court consider Exhibits A through D to the concurrently filed Declaration of

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Sandeep Solanki (the “Solanki Declaration”), as incorporated by reference into Plaintiffs’ First

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Amended Complaint (“FAC”). This request is made pursuant to Federal Rule of Civil Procedure

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12, Federal Rule of Evidence 201, and applicable legal principles, and is based on the instant

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request and the points and authorities in support thereof, the Motion to Dismiss and the points and

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authorities in support thereof, the Solanki Declaration and exhibits thereto, all pleadings and

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papers on file, and such other matters as may be presented to or properly considered by the Court.

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STATEMENT OF RELIEF SOUGHT

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Facebook seeks an order that the documents attached as Exhibits A through D to the

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Solanki Declaration are properly before the Court on Facebook’s Motion to Dismiss because they

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are incorporated by reference into the FAC.

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STATEMENT OF ISSUE TO BE DECIDED

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Whether the documents attached as Exhibits A through D to the Solanki Declaration are

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incorporated by reference into the FAC and therefore must be considered by the Court in ruling

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on the Motion to Dismiss.

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

DOCUMENTS SUBJECT TO THIS REQUEST
Facebook asks the Court to consider the following documents in connection with

Facebook’s Motion to Dismiss the FAC:
 Solanki Declaration, Exhibit A: The Facebook terms of use (also referred to as the
“Statement of Rights and Responsibilities” or “SRR”) that are currently in place,
which went into effect for all Facebook users on or about November 15, 2013.

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COOLEY LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

1.

FACEBOOK’S REQUEST FOR
CONSIDERATION OF DOCUMENTS
CASE NO. 5:14-CV-00132-PJH

 Solanki Declaration, Exhibit B: The Facebook terms of use that went into effect for all
Facebook users on or about September 23, 2008.

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 Solanki Declaration, Exhibit C: The Facebook terms of use that went into effect for all
Facebook users on or about February 4, 2009.

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 Solanki Declaration, Exhibit D: The Facebook SRR that went into effect for all
Facebook users on or about May 1, 2009.

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II.

LEGAL STANDARD

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“[C]ourts must consider the complaint in its entirety, as well as other sources courts

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ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents

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incorporated into the complaint by reference . . . .” Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

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551 U.S. 308, 322 (2007) (emphasis added); accord, e.g., Skilstaf, Inc. v. CVS Caremark Corp.,

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No. 09-cv-2514 SI, 2010 WL 199717, at *2 (N.D. Cal. Jan. 13, 2010).

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“incorporated by reference into a complaint if the plaintiff refers extensively to the document or

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the document forms the basis of the plaintiff’s claim.” United States v. Ritchie, 342 F.3d 903,

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908 (9th Cir. 2003). The document need not be “physically attached” to the complaint, Knievel v.

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ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005), but may be considered on a motion to dismiss if “the

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plaintiff’s claim depends on the contents of a document, the defendant attaches the document to

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its motion to dismiss, and the parties do not dispute the authenticity of the document . . . .”

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Knievel, 393 F.3d at 1076; see also Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (“We

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therefore hold that a district court ruling on a motion to dismiss may consider a document the

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authenticity of which is not contested, and upon which the plaintiff’s complaint necessarily

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relies.”), superseded by statute on other grounds as recognized in Abrego Abrego v. Dow Chem.

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Co., 443 F.3d 676, 681 (9th Cir. 2006). If these elements are met, “the district court may treat

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such a document as part of the complaint, and thus may assume that its contents are true for

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purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908.

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III.

A document is

ARGUMENT

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The “contract” between Facebook and Plaintiffs—referred to variously in the FAC as the

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“contract,” “terms and conditions,” “terms,” “user agreement,” and “Statement of Rights and

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Responsibilities”—lies at the heart of the FAC and forms the basis of at least five of Plaintiffs’

COOLEY LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

2.

FACEBOOK’S REQUEST FOR
CONSIDERATION OF DOCUMENTS
CASE NO. 5:14-CV-00132-PJH

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legal claims. (See, e.g., FAC ¶¶ 18-20, 22, 51(g), 96, 98.) Plaintiffs’ claims for breach of

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contract (FAC ¶¶ 97-101) and breach of the implied covenant of good faith and fair dealing (FAC

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¶¶ 102-106) are expressly premised on the contract, alleging that “DEFENDANT entered into a

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contract with PLAINTIFFS . . . in part expressed in DEFENDANT’S user agreement,” under

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which Facebook “agreed . . . not to interject false content . . . that would be visible to other

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Facebook users,” which provision “DEFENDANT materially breached . . . .” (FAC ¶¶ 98-100;

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see also FAC ¶ 103 (implied covenant claim premised on “[the] contract alleged herein above”).

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Plaintiffs’ claims for violations of the Unfair Competition Law, False Advertising Law, and

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Consumers Legal Remedies Act are, likewise, premised on the contract, each arising from alleged

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“false and misleading representations” contained within the contract (among other purported, but

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largely unidentified, locations on the Facebook website). (FAC ¶ 92; see also, e.g., FAC ¶ 96

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(alleging that Facebook “disseminat[ed] [false] statements, including but not limited to its terms

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of use (including its Statement of Rights and Responsibilities and Data Use Policy)”). In support

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of these claims, Plaintiffs allege that they “read Facebook’s terms and conditions and other

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information” both “[b]efore signing up for Facebook and continually thereafter” (FAC ¶¶ 18-20),

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and “relied on . . . false and misleading representations [therein] in deciding to register for

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Facebook or remain registered with Facebook, provide personal information and post content”

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(FAC ¶¶ 99, 105).

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Although the “contract” is fundamental to Plaintiffs’ claims, the FAC fails to attach it or

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even quote from it (much less identify any specific provisions that were breached or misleading,

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as discussed further in the Motion to Dismiss). These circumstances present the most compelling

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case for incorporation-by-reference, as they implicate the core “policy concern underlying the

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rule: Preventing plaintiffs from [attempting to survive] a Rule 12(b)(6) motion by deliberately

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omitting references to documents upon which their claims are based.” Parrino, 146 F.3d at 706.

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Indeed, where plaintiffs have failed to attach an agreement that underlies their claims, courts have

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not hesitated to consider the full terms of that agreement on a motion to dismiss. See, e.g., id. at

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706 (district court properly considered “the terms of the plan, documents governing plan

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membership, coverage, and administration” where complaint referred to and “rested upon” those

COOLEY LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

3.

FACEBOOK’S REQUEST FOR
CONSIDERATION OF DOCUMENTS
CASE NO. 5:14-CV-00132-PJH

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documents); Ritchie, 342 F.3d at 908 (“The doctrine of incorporation by reference may apply, for

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example, when a plaintiff’s claim about insurance coverage is based on the contents of a coverage

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plan, or when a plaintiff’s claim about stock fraud is based on the contents of SEC filings.”

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(citations omitted)); Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (“Here, [plaintiff]

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brought a breach of contract claim against KPMG and referred explicitly to the engagement letter.

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The authenticity of the letter is not in dispute. Therefore, the letter was properly considered on the

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12(b)(6) motions.”). Otherwise, “‘complaints that quoted only selected and misleading portions

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of [the parties’ agreements] could not be dismissed [under Rule 12(b)(6)] even though they would

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be doomed to failure.’” In re Silicon Graphics, Inc. Secs. Litig., 970 F. Supp. 746, 758-59 (N.D.

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Cal. 1997) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)).

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As Plaintiffs appear to concede, the operative “contract” is Facebook’s “Statement of

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Rights and Responsibilities” (FAC ¶ 96), which contains the “terms of service that governs

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[Facebook’s] relationship with users and others who interact with Facebook” (Solanki Decl., Ex.

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A). The current version of the SRR, applicable to all current users of Facebook (including

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Plaintiffs), and which took effect before the original complaint in this action was filed, is attached

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as Exhibit A to the Solanki Declaration. (Ex. A, § 14.3.) The terms of use in effect when Plaintiffs

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registered for Facebook are attached as Exhibits B through D of the Solanki Declaration.1

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Because these documents are fundamental to the FAC’s claims, the Court should consider

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them as incorporated by reference into the FAC for purposes of Facebook’s Motion to Dismiss.

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See, e.g., Parrino, 146 F.3d at 706; Knievel, 393 F.3d at 1076; Ritchie, 342 F.3d at 908.2

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COOLEY LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

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As Plaintiff DiTirro’s allegations regarding when he joined Facebook do not match the publicly
available information in his account profile, Facebook includes in this Motion the various
versions of the SRR that may have been in effect when DiTirro joined.
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The current version of the SRR is, additionally, the proper subject of judicial notice because its
contents are not subject to reasonable dispute and are capable of accurate and ready determination
by resort to Facebook’s website (see https://www.facebook.com/legal/terms). See Fed. R. Evid.
201(b) (judicial notice is proper as to matters “capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned”); Caldwell v. Caldwell, No. C
05-4166, 2006 WL 618511, at *4 (N.D. Cal. Mar. 13, 2006) (“as a general matter, websites and
their contents may be proper subjects for judicial notice”); Frances Kenny Family Trust, 2005
WL 106792, at *1 (finding content on plaintiffs’ website to be proper matter for judicial notice).
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FACEBOOK’S REQUEST FOR
CONSIDERATION OF DOCUMENTS
CASE NO. 5:14-CV-00132-PJH

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IV.

CONCLUSION
For the foregoing reasons, Facebook respectfully requests that the Court consider Exhibits

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A through D to the Solanki Declaration in connection with Facebook’s Motion to Dismiss.

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Dated: April 15, 2014

COOLEY LLP

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/S/ Jeffrey M. Gutkin
Jeffrey M. Gutkin
Attorneys for Defendant Facebook, Inc.

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1060115092

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COOLEY LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO

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FACEBOOK’S REQUEST FOR
CONSIDERATION OF DOCUMENTS
CASE NO. 5:14-CV-00132-PJH