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

Filing 268

MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(B)(7) by Defendant Apple Inc. Motion set for 1/12/2012 02:00 PM before Judge Carl Barbier. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Affidavit Declaration of Penelope A. Preovolos, # 4 Exhibit A to Preovolos Declaration, # 5 Exhibit B to Preovolos Declaration)(Reference: All Actions)(Urquhart, Quentin) Modified text on 12/13/2011 (gec, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
IN RE: APPLE iPHONE 3G AND 3GS
“MMS” MARKETING AND SALES
PRACTICES LITIGATION

MDL No: 2116

THIS DOCUMENT RELATES TO ALL
CASES

SECTION “J”
JUDGE BARBIER
MAGISTRATE JUDGE WILKINSON

DEFENDANT APPLE INC.’S MOTION TO DISMISS
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(7)
NOW INTO COURT, through undersigned counsel, comes Defendant, Apple Inc.
(“Apple”), who respectfully submits its Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(7). For the reasons set forth more fully in the attached memorandum in support,
plaintiffs’ claims must be dismissed with prejudice under Rule 12(b)(7) unless they join AT&T
Mobility LLC (“ATTM”), an indispensible party under Rule 19.
Plaintiffs’ claims in this action are predicated on the contents of their Wireless Service
Agreement (“WSA”) with ATTM. Plaintiffs allege that ATTM breached that agreement when it
failed to provide plaintiffs with MMS services prior to September 25, 2010, and that ATTM
billed plaintiffs for the MMS services that were allegedly not provided. Plaintiffs argue that they
may proceed against Apple for its failure to disclose these alleged breaches by ATTM. Plaintiffs
cannot, however, litigate the meaning of ATTM’s agreement and ATTM’s supposed breaches of
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that agreement without ATTM as a party to this lawsuit. ATTM is an indispensible party under
Rule 19(a), without whom this litigation may not proceed under Rule 19(b). In fact, the United
States District Court for Northern District of California reached a similar conclusion in a case
involving the same two defendants (Apple and ATTM) and a similar attempt by plaintiffs to
remove ATTM from a case to avoid arbitration with Apple. In re Apple iPhone 3G Prod. Liab.
Litig., MDL No. C 09-02045 JW, 2011 U.S. Dist. LEXIS 138532 (N.D. Cal. Dec. 1, 2011)
Consequently, Rule 12(b)(7) and Rule 19 preclude plaintiffs from adjudicating the meaning of
ATTM’s WSA and the propriety of ATTM’s alleged conduct without ATTM.
WHEREFORE, Defendant, Apple Inc., respectfully requests that its motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(7) be granted, and Plaintiffs’ claims against
Apple be dismissed.

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Respectfully submitted,
__/s/ Quentin F. Urquhart___________
IRWIN FRITCHIE URQUHART & MOORE, LLC
QUENTIN F. URQUHART, JR. (#14475)
DAVID W. O’QUINN (#18366)
DOUGLAS J. MOORE (#27706)
400 Poydras Street, Suite 2700
New Orleans, Louisiana 70130
Telephone: [phone]
Facsimile: [phone]

PENELOPE A. PREOVOLOS (admitted pro hac vice)
STUART C. PLUNKETT (admitted pro hac vice)
SUZANNA P. BRICKMAN (admitted pro hac vice)
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: [phone]
Facsimile: [phone]
Counsel for Apple Inc.

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing pleading has been electronically filed on
December 12, 2011, with the Clerk of Court by using the CM/ECF system which will send a
notice of electronic filing to all counsel of record.

__/s/ Quentin F. Urquhart_

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