Nazaruk v. eBay et al

Filing 4

MOTION to Dismiss for Improper Venue or, in the alternative, For Failure to State a Claim filed by Defendant eBay. (Sabin, Cameron)

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Nazaruk v. eBay et al Doc. 4 Case 2:06-cv-00242-DAK Document 4 Filed 06/06/2006 Page 1 of 4 Michael G. Rhodes (Pro Hac Vice) Benjamin F. Chapman (Pro Hac Vice) COOLEY GODWARD LLP 4401 Eastgate Mall San Diego, California 92121-1909 Telephone: (858) 550-6000 Cameron L. Sabin (9437) STOEL RIVES LLP 201 S Main Street, Suite 1100 Salt Lake City, UT 84111 Telephone: (801) 328-3131 Attorneys for Defendant eBay, Inc. IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION TETYANA NAZARUK,, Plaintiff, v. eBAY, INC.; ACE COINS, Defendants. Pursuant to Rules 12(b)(3) and 12(b)(6) of the Federal Rules of Civil Procedure, defendant eBay, Inc. ("eBay"), hereby moves the Court to dismiss plaintiff Tetyana Nazaruk's (the "plaintiff") complaint (the "Complaint") on the basis that this venue is improper. Pursuant to the terms of a User Agreement between plaintiff and eBay, plaintiff must bring all disputes they have against eBay in Santa Clara County, California. As such, under Rule 12(b)(3), the Complaint should be dismissed. In the alternative, eBay moves to dismiss the Complaint, without leave to amend, because the plaintiff has failed to state a claim upon which relief can be granted against eBay and any MOTION TO DISMISS FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, FOR FAILURE TO STATE A CLAIM Case No. 2:06CV00242 The Honorable Dale A. Kimball SaltLake-279043.1 00999 99-00001 Dockets.Justia.com Case 2:06-cv-00242-DAK Document 4 Filed 06/06/2006 Page 2 of 4 amendment to the Complaint would be futile. First, plaintiff's claims against eBay are barred by Section 230 of the Telecommunications Act of 1996 (47 U.S.C. 230). Second, the Complaint fails to state a civil rights claim under 42 U.S.C. 1983 or 1985. Plaintiff's Section 1983 claim fails because eBay is not a state actor, nor do any of the actions detailed in the Complaint demonstrate that eBay acted under the color of state law. Plaintiff's Section 1985 claim also fails because the Complaint fails to allege that eBay was motivated by racial animus, or that eBay violated their right to be free from involuntary servitude or their right to interstate travel. This motion is supported by the Memorandum in support of Motion to Dismiss for Improper Venue or, in the Alternative, for Failure to State a Claim; the Declaration of Allyson Willoughby; the pleadings; and any other evidence that may be adduced at a hearing on this motion. DATED this 6th of June, 2006. STOEL RIVES LLP /s/ Cameron L. Sabin Cameron L. Sabin COOLEY GODWARD LLP Michael G. Rhodes Benjamin F. Chapman Attorneys for Defendant eBay, Inc. SaltLake-279043.1 00999 99-00001 Case 2:06-cv-00242-DAK Document 4 Filed 06/06/2006 Page 3 of 4 CERTIFICATE OF SERVICE I hereby certify that on this 6th day of June 2006, I mailed a true and correct copy of the foregoing MOTION TO DISMISS FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, FOR FAILURE TO STATE A CLAIM, postage prepaid, to: Tetyana Nazaruk 274 W. 200 S. Apt. 43 Salt Lake City, UT 84101 /s/ Sharon L. Astin SaltLake-279043.1 00999 99-00001 Case 2:06-cv-00242-DAK Document 4 Filed 06/06/2006 Page 4 of 4 SaltLake-279043.1 00999 99-00001

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