Trujillo v. Apple Computer, Inc. et al

Filing 36

MOTION by Defendant AT&T Mobility, LLC to compel Arbitration and Dismiss Action (Reynolds, Sarah)

Case 1:07-cv-04946

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Filed 10/16/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JOSE TRUJILLO, individually and on behalf of all others similarly situated, Plaintiff, Case No. 1:07-cv-04946 vs. APPLE COMPUTER, INC., a California Corporation, and AT&T MOBILITY LLC, a Georgia Corporation, Defendants. MOTION OF DEFENDANT AT&T MOBILITY LLC TO COMPEL ARBITRATION AND DISMISS ACTION Pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1­16 and Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendant AT&T Mobility LLC ("ATTM") respectfully moves this Court for an order (i) compelling Plaintiff Jose Trujillo to pursue his dispute with ATTM in arbitration or small claims court and (ii) dismissing all claims against ATTM.1 This Motion is based upon this Motion, the attached Memorandum of Points and Authorities, and the Declarations of Neal S. Berinhout, Richard Nagareda, and Kevin Ranlett, and all exhibits thereto. In support of this motion, ATTM states as follows: 1. On July 26, 2007, plaintiff Jose Trujillo filed a putative class-action complaint Judge Kennelly Mag. Judge Ashman

against AT&T, Inc. and Apple Computer, Inc. ("Apple") in the Chancery Division of the County Department of the Circuit Court of Cook County, alleging that the manner in which the

1

As explained in ATTM's memorandum of law in support of this motion (at 5), the undersigned counsel for ATTM certifies that ATTM complied with its obligation under Local Rule 37.2 to meet and confer by sending a letter to Larry D. Drury, counsel for plaintiff. Mr. Drury was not willing to agree to the relief sought in this motion.

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defendants marketed the iPhone violates the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/1 et seq. He also raises a variety of common-law claims. 2. 3. On August 31, 2007, Apple timely filed a Notice of Removal to this Court. On September 6, 2007, the plaintiff filed an Amended Complaint substituting

ATTM as a defendant for AT&T, Inc. 4. In the course of activating his iPhone for wireless service from ATTM, the

plaintiff agreed to a contractual provision that states that "[ATTM] and you agree to arbitrate all disputes and claims between us" or to pursue such disputes in small claims court. Declaration of Neal S. Berinhout Ex. 3, at 12 (emphasis in original). The provision specifies that arbitration must be conducted on an individual rather than class-wide basis. Id. Ex. 3, at 12, 15. 5. The Federal Arbitration Act ("FAA") provides that written agreements to arbitrate

disputes "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The FAA governs the enforceability of the arbitration agreement between the plaintiff and ATTM. See id. 6. Because the plaintiff's arbitration agreement covers all of his claims against

ATTM, the Court should compel him to pursue his claims in arbitration or small claims court. Id. § 4. 7. When, as here, all of the claims against a defendant subject to a binding

arbitration agreement that the defendant has invoked, the Court should dismiss them. See Deputy v. Lehman Bros., Inc., 374 F. Supp. 2d 695, 711 (E.D. Wis. 2005) ("A court may dismiss a case if all of the issues raised before it are arbitrable."); accord, e.g., Choice Hotels Int'l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709 (4th Cir. 2001) ("[D]ismissal is a proper remedy when all of the issues presented in a lawsuit are arbitrable."); Alford v. Dean Witter Reynolds, Inc., 975

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F.2d 1161, 1164 (5th Cir. 1992) ("The weight of authority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted to arbitration."). WHEREFORE, ATTM respectfully request that this Court compel arbitration pursuant to 9 U.S.C. § 4 and dismiss all claims against ATTM pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Dated: October 16, 2007 Respectfully submitted,

/s Sarah E. Reynolds Victoria Collado (#6204015) Sarah E. Reynolds (#6287186) MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Tel: [phone] Fax: [phone] Evan M. Tager (pro hac vice application pending) Archis A. Parasharami (pro hac vice application pending) Kevin Ranlett (pro hac vice) MAYER BROWN LLP 1909 K Street, N.W. Washington, DC 20006 Tel: [phone] Fax: [phone] Attorneys for Defendant AT&T Mobility LLC

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CERTIFICATE OF SERVICE I, Sarah E. Reynolds, an attorney, hereby certify that a true and correct copy of Motion of Defendant AT&T Mobility LLC to Compel Arbitration and Dismiss Action was served on the following counsel of record via electronic delivery on October 16, 2007: Larry D. Drury James Rowe LARRY D. DRURY, LTD. 205 West Randolph, #1403 Chicago, IL 60603 [phone] Patrick T. Stanton Edward S. Weil SCHWARTZ COOPER CHARTERED 180 North LaSalle Street, Suite 2700 Chicago, Illinois 60601 Penelope A. Preovolos Andrew D. Muhlbach Johanna W. Roberts MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105

Respectfully submitted, /s/Sarah E. Reynolds Dated: October 16, 2007 Attorney for Defendant AT&T Mobility LLC