In Re: Apple iPhone 3G and 3GS MMS Marketing and Sales Practices Litigation

Filing 129

MOTION to Dismiss by Defendant Apple Inc. Motion Hearing set for 10/14/2010 09:30 AM before Judge Carl Barbier. (Attachments: # 1 Memorandum in Support, # 2 Declaration re: Exhibits, # 3 Exhibits A - L, # 4 Notice of Hearing)(Reference: 10-cv-498)(Urquhart, Quentin) Modified text on 8/11/2010 (sek, ).

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: APPLE iPHONE 3G AND 3GS "MMS" MARKETING AND SALES PRACTICES LITIGATION THIS DOCUMENT RELATES TO: EDLA No. 10-cv-498 Case No. 2:20-CV-2 (M.D. Florida) Janine Novick, Plaintiff, v. Apple Inc. and AT&T Mobility LLC, Defendants. DEFENDANT APPLE INC.'S MOTION TO DISMISS FIRST AMENDED AND SUPPLEMENTAL COMPLAINT NOW INTO COURT, through undersigned counsel, comes defendant, Apple Inc. ("Apple"), who moves this Court to dismiss Plaintiff's First Amended and Supplemental Complaint ("FAC") with prejudice. Apple seeks dismissal of this action on the grounds that the Plaintiff's FAC fails to meet the pleading requirements of Rules 8, 9 and 12 of the Federal Rules of Civil Procedure. The CIVIL ACTION MDL No. 2116 SECTION "J" JUDGE BARBIER MAGISTRATE JUDGE WILKINSON

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FAC does not identify the particular representations regarding Multimedia Messaging Service ("MMS") to which the Plaintiff was allegedly exposed; it does not demonstrate that Plaintiff relied on the supposed representations; and it does not adequately allege that Plaintiff was caused injury thereby. Furthermore, a review of Apple's advertisements and marketing material

referenced in the FAC illustrate that Apple consistently disclosed that MMS would not be available until late summer 2009. For these reasons, as set forth in the accompanying Memorandum of Law in Support, Apple prays that its Motion to Dismiss be granted, and this matter be dismissed with prejudice, at Plaintiff's cost.

Respectfully submitted: IRWIN FRITCHIE URQUHART & MOORE LLC BY: /s/ Quentin F. Urquhart ________ QUENTIN F. URQUHART, JR. (#14475) DOUGLAS J. MOORE (#27706) 400 Poydras Street, Suite 2700 New Orleans, Louisiana 70130 Telephone: [phone] Facsimile: [phone] and PENELOPE A. PREOVOLOS (admitted pro hac vice) ANDREW MUHLBACH (admitted pro hac vice) HEATHER A. MOSER (admitted pro hac vice) MORRISON & FOERSTER, LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: [phone] Facsimile: [phone] Counsel for Defendant, Apple, Inc.

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been electronically filed and served upon all known counsel of record by electronic service and/or U. S. mail, properly addressed, this the 10th day of August, 2010. _/s/ Quentin F. Urquhart_______

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