Glauser v. GroupMe, Inc.

MOTION to Dismiss

N.D. Cal.August 25, 2011

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 CLASS ACTION COMPLAINT Case No. CV11-2584 PJH Patrick S. Thompson (SBN 160804) pthompson@goodwinprocter.com Anna Hsia (SBN 234179) ahsia@goodwinprocter.com Audrey M. Lin (SBN 271671) alin@goodwinprocter.com GOODWIN PROCTER LLP Three Embarcadero Center, 24th Floor San Francisco, California 94111 Tel.: 415.733.6000 Fax: 415.677.9041 Attorneys for Defendant Twilio, Inc., a Delaware Corporation UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION BRIAN GLAUSER, individually and on behalf of all others similarly situated, Plaintiff, v. TWILIO, INC., a Delaware corporation, GROUPME, INC., a Delaware corporation, Defendants. Case No. CV11-2584 PJH NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT Date: October 12, 2011 Time: 9:00 a.m. Courtroom: 3 Judge: Hon. Phyllis J. Hamilton Case4:11-cv-02584-PJH Document21 Filed08/25/11 Page1 of 4 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 CLASS ACTION COMPLAINT Case No. CV11-2584 PJH NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 12, 2011 at 9:00 a.m., or as soon thereafter as counsel may be heard in the above entitled court, before the Honorable Phyllis J. Hamilton, United States District Judge, in Courtroom 3, 3rd Floor, 1301 Clay Street, Oakland, CA 94612, defendant Twilio, Inc. (“Twilio”) will and hereby does move the Court, for an Order dismissing with prejudice all claims asserted against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant seeks dismissal on grounds that plaintiff fails to state a plausible cause of action with the specificity required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). In the alternative, if the Court declines to dismiss the Complaint against Twilio, the Court should refer this matter to the Federal Communications Commission (“FCC”) under the doctrine of primary jurisdiction. This motion is based upon this Notice of Motion and Motion; the attached Memorandum of Points and Authorities; the concurrently-filed Request for Judicial Notice; and the papers and pleadings on file with the Court, including any reply papers to be filed; and such other written or oral argument as may be presented at the hearing on this Motion. Dated: August 25, 2011 Respectfully submitted, By: /s/ Patrick S. Thompson Patrick S. Thompson pthompson@goodwinprocter.com Anna Hsia ahsia@goodwinprocter.com Audrey M. Lin alin@goodwinprocter.com GOODWIN PROCTER LLP Three Embarcadero Center, 24th Floor San Francisco, California 94111 Tel.: 415.733.6000 Fax: 415.677.9041 Attorneys for Defendant Twilio, Inc., a Delaware Corporation Case4:11-cv-02584-PJH Document21 Filed08/25/11 Page2 of 4 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 i PROOF OF SERVICE Case No. CV11-2584 PJH PROOF OF SERVICE I, Randolph Roque, declare: I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 601 South Figueroa Street, 41st Floor, Los Angeles, California 90017. On August 25, 2011, I served the following documents by placing a true copy thereof in a sealed envelope(s) on the persons below as follows: NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT Sean Patrick Reis EDELSON MCGUIRE, LLP 30021 Tomas Street, Suite 300 Rancho Santa Margarita, CA 92688 Counsel for Plaintiff BRIAN GLAUSER Tel. 949-459-2124 Fax. 949-459-2123 E-Mail: sreis@edelson.com Christopher L. Dore Jay Edelson Rafey Sarkis Balabanian EDELSON MCGUIRE, LLC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Counsel for Plaintiff BRIAN GLAUSER Tel. 312-589-6370 Fax. 312-589-6378 E-Mail: cdore@edelson.com E-Mail: jedelson@edelson.com E-Mail: rbalabanian@edelson.com Renuka Rebecca George WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304 Counsel for Defendant GROUPME, INC. Tel. 650-493-9300 Fax. 650-565-5100 E-Mail: RGeorge@wsgr.com Gerard M. Stegmaier WILSON SONSINI GOODRICH & ROSATI 1700 K. Street, NW, 5th Floor Washington, D.C. 20006-3817 Counsel for Defendant GROUPME, INC. Tel: 202-973-8800 Fax: 202-973-8899 E-Mail: gstegmaier@wsgr.com Tonia Maria Ouellette Klausner WILSON SONSINI GOODRICH & ROSATI 1301 Avenue of the Americas, 40th Floor New York, NY 10019-6022 Counsel for Defendant GROUPME, INC. Tel: 212-999-5800 Fax: 212-999-5899 E-Mail: tklausner@wsgr.com (MAIL) I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at San Francisco, California. Case4:11-cv-02584-PJH Document21 Filed08/25/11 Page3 of 4 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 ii PROOF OF SERVICE Case No. CV11-2584 PJH (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(d)(1). “A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(d)(1). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se.” (EXPRESS MAIL) I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm's practice for collecting and processing Express Mail for mailing. On the same day that Express Mail is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a post office, mailbox, sub-post office, substation, mail chute, or other like facility regularly maintained by the United States Postal Service for receipt of Express Mail. (OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by Federal Express , an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, a true copy of the foregoing document in sealed envelopes or packages designated by the express service carrier, addressed as stated above, with fees for overnight delivery paid or provided for. (MESSENGER SERVICE) I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed and provided them to a professional messenger service for service. A separate Personal Proof of Service provided by the professional messenger service will be filed under separate cover. (FACSIMILE) Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. (E-MAIL or ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury that I am employed in the office of a member of the bar of this Court at whose direction this service was made and that the foregoing is true and correct. Executed on August 25, 2011, at San Francisco, California. Randolph Roque (Type or print name) (Signature) Case4:11-cv-02584-PJH Document21 Filed08/25/11 Page4 of 4