Garcia v. Enterprise Holdings, Inc. et al

MOTION to Dismiss

N.D. Cal.April 28, 2014

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT Case No. 4:14-cv-00596-SBA 817343 KEKER & VAN NEST LLP RACHAEL E. MENY - #178514 rmeny@kvn.com JENNIFER A. HUBER - #250143 jhuber@kvn.com MICHELLE S. YBARRA - #260697 mybarra@kvn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Attorneys for Defendant LYFT, INC. CROWELL & MORING LLP J. DANIEL SHARP - #131042 dsharp@crowell.com 275 Battery Street, 23rd Floor San Francisco, CA 94111 Telephone: (415) 986-2800 Facsimile: (415) 986-2827 Attorneys for Defendant ENTERPRISE HOLDINGS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION MIGUEL GARCIA, individually and on behalf of all others similarly situated, Plaintiff, v. ENTERPRISE HOLDINGS, INC., d/b/a Zimride, a Missouri corporation, and LYFT INC., a Delaware corporation, Defendants. Case No. 4:14-cv-00596-SBA NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT Date: June 10, 2014 Time: 1:00 p.m. Dept: Courtroom 1, 4th Floor Judge: Hon. Saundra B. Armstrong Date Filed: February 7, 2014 Trial Date: None set Case4:14-cv-00596-SBA Document33 Filed04/28/14 Page1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT Case No. 4:14-cv-00596-SBA 817343 NOTICE OF MOTION AND MOTION TO DISMISS PLEASE TAKE NOTICE that on June 10, 2014, at 1:00 p.m. or as soon thereafter as may be heard by this Court, Defendants Lyft, Inc. and Enterprise Holdings, Inc. (collectively “Defendants”) will and hereby do move to dismiss Plaintiff Miguel Garcia’s First Amended Complaint. Defendants’ Motion to Dismiss is made pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure, and is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the Request for Judicial Notice and accompanying Declaration of Michelle Ybarra, all pleadings on file in this matter, and other matters as may be presented to the Court at the time of the hearing or otherwise. ISSUES TO BE DECIDED (L.R. 7-4(a)(3)) 1. Does the Complaint fail to state a claim upon which relief can be granted where the plain language and legislative history of California Penal Code § 637.6 establish that it does not apply to these Defendants and does not proscribe the conduct alleged? 2. Does the Complaint fail to state a claim upon which relief can be granted based on insufficient allegations as to the alleged disclosure of Plaintiff’s personal information and lack of consent, and the fact that Plaintiff consented to any purported disclosure based on the judicially- noticeable Zimride Privacy Policy and Terms of Service? 3. Does this case present a judiciable “case or controversy” within the meaning of Article III of the U.S. Constitution where Plaintiff has not alleged he suffered any cognizable injury in fact as a result of Defendants’ alleged conduct? CERTIFICATION OF COMPLIANCE WITH STANDING ORDER Counsel for Defendants certify that on April 22, 2014, we met and conferred by telephone with Ben Thomassen and Rafey Balabanian, counsel for Plaintiff Miguel Garcia. We discussed the arguments that Defendants intended to make in this Motion to Dismiss, including the inapplicability of California Penal Code § 637.6 to Defendants and the alleged conduct, and the Case4:14-cv-00596-SBA Document33 Filed04/28/14 Page2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT Case No. 4:14-cv-00596-SBA 817343 conclusory nature of the allegations, especially with the respect to alleged lack of consent and injury. Dated: April 28, 2014 By: KEKER & VAN NEST LLP /s/ Jennifer A. Huber JENNIFER A. HUBER Attorney for Defendant LYFT, INC. Dated: April 28, 2014 By: CROWELL & MORING LLP /s/ J. Daniel Sharp J. DANIEL SHARP Attorney for Defendant ENTERPRISE HOLDINGS, INC., d/b/a Zimride ATTESTATION Pursuant to Civil Local Rule 5-1(i)(3) regarding signatures, I attest that concurrence in the filing of Plaintiff’s Motion to Dismiss First Amended Class Action Complaint and Memorandum of Points and Authorities in support thereof has been obtained from the other signatories. Dated: April 28, 2014 /s/ Rachael E. Meny RACHAEL E. MENY Case4:14-cv-00596-SBA Document33 Filed04/28/14 Page3 of 3