Quicken Loans Incorporated v. Epic Media Group, Incorporated et al

Filing 1

COMPLAINT filed by Quicken Loans Incorporated against Azoogle.com, Incorporated, Azoogleads US, Incorporated, Azoogleads.com, Incorporated, Epic Media Group, Incorporated. Plaintiff requests summons issued. Receipt No: 0645-2930486 - Fee: $ 350. County of 1st Plaintiff: Wayne, Michigan - County Where Action Arose: Wayne, Michigan - County of 1st Defendant: Out of State. [Previously dismissed case: No] (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1a - Agreement (pp 1-6), # 3 Exhibit 1b - Agreement (pp 7-13), # 4 Exhibit 2a - First Amended Complaint (pp 1-41), # 5 Exhibit 2b - First Amended Complaint (pp 42-73), # 6 Exhibit 3 - 5 June 2008 letter, # 7 Exhibit 4 - 19 March 2009 Order, # 8 Exhibit 5 - 23 April 2009 Order, # 9 Exhibit 6 - 9 July 2010 Memorandum Opinion, # 10 Exhibit 7 - 16 August 2010 letter) (Lavigne, Joseph)

EXHIBIT 5

Case3:08-cv-04970-MMC Document101

Filed04/23/09 Page1 of 2

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

10
11

HYPERTOUCH, INC.,

12

Plaintiff,

13
14
15

No. C-08-4970 MMC
ORDER DISMISSING ACTION

v.
AZOOGLE.COM, INC., et al.,
Defendants

/

16
17

By order filed March 19, 2009, the Court dismissed plaintiff’s First Amended

18

Complaint (“FAC”). Specifically, the Court dismissed without leave to amend the First

19

Cause of Action to the extent it included a claim for liquidated damages based on violations

20

of § 17529.5(a) of the California Business & Professions Code occurring more than one

21

year before the date the initial complaint was filed. Further, the Court dismissed with leave

22

to amend the remaining causes of action, in light of plaintiff’s having based each of its

23

claims on allegations of fraudulent conduct and having failed to allege fraudulent conduct in

24

conformity with Rule 9(b) of the Federal Rules of Civil Procedure. (See, e.g., FAC ¶ 137

25

(basing claim for “trespass to chattels” on allegation “[d]efendants and/or their agents

26

fraudulently perpetrated their actions by sending e-mails with fraudulent and intentionally

27

deceptive characteristics”).)

28

Before the Court is plaintiff’s “Notice of Intent Not to File Amended Complaint,” filed

Case3:08-cv-04970-MMC Document101

Filed04/23/09 Page2 of 2

1

April 10, 2009, in which plaintiff states it has “decided not to further amend its Complaint.”

2

Because plaintiff has declined to either amend to plead its fraudulent conduct

3

allegations with the particularity required by Rule 9(b) or, to the extent fraud is not an

4

essential element of any of its claims, to amend to delete its references to fraudulent

5

conduct, the Court hereby DISMISSES the remaining claims without further leave to

6

amend. See In re Daou Systems, Inc., 411 F.3d 1006, 1028 (9th Cir. 2005) (holding where

7

plaintiff bases claim on allegation of fraudulent conduct, even though fraud is not “essential

8

element” of claim, and claim is dismissed with leave to amend for failure to allege claim in

9

conformity with Rule 9(b), plaintiff may submit amended complaint that either “pleads with

10

the requisite particularity or drops the defective allegations [of fraud] and still states a

11

claim”).

12

IT IS SO ORDERED.

13
14

Dated: April 23, 2009
MAXINE M. CHESNEY
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
2