Vulcan Golf, LLC v. Google Inc. et al

Filing 165

MOTION by Defendants Internet Reit, Inc., Google Inc., Oversee.Net, Sedo LLC, Dotster, Inc. to dismiss (CONSOLIDATED) the Third Amended Class Action Complaint (Attachments: # 1 Notice of Filing)(Dockterman, Michael)

Vulcan Golf, LLC v. Google Inc. et al

Doc. 165

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION VULCAN GOLF, LLC, JOHN B. SANFILIPPO & SON, INC., BLITZ REALTY GROUP, INC., and VINCENT E. "BO" JACKSON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. GOOGLE INC., OVERSEE.NET, SEDO LLC, DOTSTER, INC., AKA REVENUEDIRECT.COM, INTERNET REIT, INC. d/b/a IREIT, INC., and JOHN DOES I-X, Defendants. : : : : : : : : : : Judge Manning Magistrate Judge Brown : : : : : : Case No. 07CV3371

DEFENDANTS' CONSOLIDATED MOTION TO DISMISS THE THIRD AMENDED CLASS ACTION COMPLAINT Defendants Google, Inc. ("Google"), Oversee.net ("Oversee"), Sedo LLC ("Sedo"), Dotster, Inc., aka RevenueDirect.com ("Dotster"), and Internet Reit, Inc. d/b/a Ireit, Inc. ("Ireit") (collectively "Defendants"), jointly move pursuant to this Court's Order of April 14, 2008 to dismiss with prejudice Plaintiffs' RICO (Counts I-III); unjust enrichment (Count XII); and conspiracy (Count XIII) claims in the Third Amended Class Action Complaint ("TAC"); as well as Plaintiffs' claim under Section 32 of the Lanham Act as to Bo Jackson (Count V); Plaintiffs' dilution claim as to Blitz Realty (Count VII); and portions of Plaintiffs' claim for interference with prospective economic advantage (Count XI); for the reasons set forth in the Consolidated Memorandum of Law filed contemporaneously with this Motion and incorporated herein by reference. In support of this Motion, Defendants state as follows: 1. This is a purported class action brought by four plaintiffs who allege that they

own various distinctive or valuable trademarks. As they have done since filing their initial complaint on June 15, 2007, Plaintiffs allege that the Defendants infringe Plaintiffs' trademarks

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by alleged "cybersquatting" and seek various kinds of relief under a laundry list of theories. Defendants have moved to dismiss each of the iterations of Plaintiffs' claims. 2. On March 20, 2008, this Court granted Defendants' Motion to Dismiss the

following claims, but granted leave to replead: (1) RICO; (2) trademark infringement as to Plaintiff Jackson; (3) dilution of trademark as to Plaintiff Blitz; (4) Illinois Consumer Fraud and Deceptive Trade Practices Act ("ICFDTPA"); (5) declaratory judgment; (6) intentional interference with current economic advantage; (7) unjust enrichment; and (8) civil conspiracy. Vulcan Golf, LLC v. Google Inc., 2008 U.S. Dist. LEXIS 22155, at *85 (N.D. Ill. Mar. 20, 2008). 3. On April 18, 2008, Plaintiffs filed their Third Amended Complaint ("TAC")

which re-alleges the same counts as the (First) Amended Complaint, minus the counts for violation of the ICFDTPA and declaratory judgment, and with an additional RICO count under 18 U.S.C. § 1962(a). 4. Plaintiffs' TAC fails to remedy the problems which led this Court to dismiss its

predecessor. As set forth more fully in the Memorandum of Law in Support of the Consolidated Motion to Dismiss filed contemporaneously with this Motion, Plaintiffs' RICO (Counts I-III); unjust enrichment (Count XII); and conspiracy (Count XIII) counts should be dismissed with prejudice as suggested by the Court's March 20 opinion and order. Plaintiffs' claim under Section 32 of the Lanham Act as to Bo Jackson (Count V); Plaintiffs' dilution claim as to Blitz Realty (Count VII); and portions of Plaintiffs' claim for interference with prospective economic advantage (Count XI) also should be dismissed with prejudice by reason of Plaintiffs' failure on their third try to cure the legal defects in those claims. WHEREFORE, Defendants respectfully request that this Court grant their Consolidated Motion to Dismiss and dismiss with prejudice the RICO (Counts I-III); unjust enrichment (Count XII); conspiracy (Count XIII); Lanham Act as to Bo Jackson (Count V); dilution as to Blitz Realty (Count VII); and portions of the interference with prospective economic advantage (Count XI) claims and award Defendants such other and further relief as the Court deems just.

Dated: May 2, 2008

Respectfully submitted,

/s/ Mariah E. Moran One of the Attorneys for Google, Inc. Joseph J. Duffy Jonathan M. Cyrluk Mariah E. Moran Stetler & Duffy, Ltd. 11 South LaSalle Street Suite 1200 Chicago, Illinois 60603 Michael H. Page Joseph Gratz Keker & Van Nest LLP 710 Sansome Street San Francisco, California 94111-1704 Aaron D. Van Oort Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402

/s/ Thomas J. Wiegand One of the Attorneys for Oversee.net Thomas J. Wiegand Ronald Y. Rothstein Marlon E. Lutfiyya Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 Andrew P. Bridges Winston & Strawn LLP 101 California Street Suite 3900 San Francisco, California 94111 Steven D. Atlee Winston & Strawn LLP 333 South Grand Avenue 38th Floor Los Angeles, California 90071

/s/ Jeffrey Singer One of the Attorneys for Sedo, LLC Jeffrey Singer Misty R. Martin Segal McCambridge Singer & Mahoney Sears Tower 233 South Wacker Drive Suite 5500 Chicago, Illinois 60606

/s/ Michael Dockterman One of the Attorneys for Dotster, Inc. Michael Dockterman Alison C. Conlon Wildman, Harrold, Allen & Dixon LLP 225 West Wacker Drive Suite 2800 Chicago, Illinois 60606-1229 Vincent V. Carissimi Robert L. Hickok Joanna J. Cline Pepper Hamilton LLP 3000 Two Logan Square 18th & Arch Streets Philadelphia, Pennsylvania 19103-2799

/s/ Brett A. August One of the Attorneys for Internet Reit, Inc. Brett August Bradley Cohn Alexis Payne Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP 311 South Wacker Drive Suite 5000 Chicago, Illinois 60613 Steve Borgman Kenneth P. Held Vinson & Elkins LLP 2500 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 Scott Ryan Wiehle Vinson & Elkins 2001 Ross Avenue Suite 3700 Dallas, Texas 75201-2975

CERTIFICATE OF SERVICE The undersigned certifies that on May 2, 2008, a true and correct copy of the foregoing DEFENDANTS' CONSOLIDATED MOTION TO DISMISS THE THIRD AMENDED CLASS ACTION COMPLAINT was electronically filed with the Clerk of the Court for the Northern District of Illinois using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the Court's electronic filing system. Parties may access this filing through the Court's CM/ECF system.

__/s/ Michael Dockterman ________________ Michael Dockterman Wildman, Harrold, Allen & Dixon LLP 225 West Wacker Drive Suite 2800 Chicago, Illinois 60606-1229 Phone: [phone] Fax: [phone] Email: [e-mail] Attorney for Dotster, Inc., aka RevenueDirect.com