footlocker appeal appendix
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No. A141847
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
TIMOTHY A. DeWITT,
Plaintiff and Appellant,
v.
FOOT LOCKER RETAIL, INC. and 1INK.COM,
Defendants and Respondents.
RESPONDENT FOOT LOCKER RETAIL, INC.S
APPENDIX
Appeal From Judgment Following Order Sustaining
Demurrer in the Superior Court for the
County of San Francisco
Honorable Ernest Goldsmith, Law & Motion Judge
Superior Court Case No. CGC-13-532370
*MICHAEL J. STORTZ (SBN 139386)
[email protected] J. ADLER (SBN 273147)
DRINKER BIDDLE & REATH LLP
50 Fremont Street, 20th Floor
San Francisco, California 94105-2235
Telephone: (415) 591-7500
Facsimile: (415) 591-7510
MATTHEW J. FEDOR (pro hac vice)
[email protected] BIDDLE & REATH LLP
600 Campus Drive
Florham Park, New Jersey 07932-1047
Attorneys for Respondent
FOOT LOCKER RETAIL, INC.
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INDEX
Exhibit Document Date Page No.
A Complaint for Damages
and Declaratory Relief
June 25, 2013 2
B United States District Court
(N.D. Cal.) Order Granting
Motion to Remand
October 1, 2013 11
C Memorandum of Points and
Authorities in Support of
Foot Locker Retail Incs
Demurrer to Complaint
November 4,
2013
16
D Memorandum of Points and
Authorities in Support of
1INK.coms Demurrer toComplaint
November 14,
2013
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EXHIBIT B
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EXHIBIT C
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DRINKER BIDDLE &
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOOT LOCKER RETAIL INC.S DEMURRER
I.
INTRODUCTION
Plaintiff Timothy DeWitt is a California attorney who alleges that he received hundreds of
separate emails from Defendant Foot Locker Retail, Inc. (Foot Locker) and Defendant
1INK.com, which he claims were false, misleading, and deceptive in violation of Business and
Professions Code Section 17529.5, Californias Anti-Spam Law. Plaintiff seeks over $325,000
in damages, yet he has alleged no specifics whatsoever regarding the emails, and the Complaint
lacks even the most basic information regarding Plaintiffs claims.
Accordingly, Plaintiffs claims should be dismissed for failure to plead his Anti-Spam
Law claims which courts repeatedly have held are grounded in fraud with the requisite level
of particularity. Plaintiffs Complaint utterly fails to satisfy this heightened pleading standard.
Plaintiff also has failed to allege any facts suggesting a relationship or any other
connection between Defendants Foot Locker and 1INK.com. As such, there is simply no basis to
support joinder of Foot Locker and 1INK.com as co-defendants in this action, and the Complaint
is subject to demurrer on that ground.
This Court should sustain Foot Lockers Demurrer to the Complaint. Should Plaintiff be
granted leave to amend to plead his Anti-Spam Law claims with particularity, Foot Locker will
request that Defendant 1INK.com be severed from this action unless Plaintiff can somehow also
plead facts that demonstrate a basis to support joinder.
II.
BACKGROUND
Plaintiff alleges that he received approximately 325 to 335 unsolicited emails
advertising Foot Lockers Foot Locker or Champs commercial brand, products, or services,
which he claims were false, misleading, and deceptive in violation of the Anti-Spam Law.
Compl. 6, 8. Plaintiff also claims he received 30 to 35 improper emails from Defendant
1INK.com, which advertised its commercial brand, products, or services. Id. 9.
Indeed, this entire case revolves around emails. But none of the allegedly unlawful emails
that Plaintiff says he received are attached to the Complaint, and the Complaint lacks even the
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most basic details about the emails. For example, Plaintiff does not say whenany of the emails
were received. Plaintiff does not identify the email address(es) wherethe emails supposedly were
sent. He does not describe whatthe content of any emails say. He does not identify who
supposedly sent each email. And he does not explain howthe email header information is
falsified, misrepresented, or forged or howthe email subject lines would be likely to mislead a
recipient about a material fact regarding the contents of the subject matter of the message in
violation of the Anti-Spam Law. SeeBus. & Prof. Code 17529.5(a)(2)-(3).
Plaintiff also fails to distinguish between the emails he purportedly received from Foot
Locker and those received from 1INK.com. Instead, he simply lumps everything together and
broadly claims, in the alternative, that the emails contained untraceable orotherwise
misleading sender information; orfalsified, misleading, orforged header orsubject line
information; orwere presented to make it appear as though Defendant advertisers were the
actual senders when the emails in fact were sent by third-party spammers. Compl. 6 (emphasis
added). In fact, the only additional information provided concerning the purported Foot Locker-
related emails is Plaintiffs allegation that a large number contained generic header
information, such as Foot Locker VIP, or used a domain including e.footlocker.com, which
he baldly concludes are somehow misleading and deceptive. Compl. 7.
Despite these clear pleading deficiencies, Plaintiff purports to assert two causes of action
for violation of, and declaratory relief under, the Anti-Spam Law. Compl. 1118. And he
seeks over $325,000 in damages in addition to declaratory and injunctive relief. Prayer for Relief
AC.
III.
ARGUMENT
A.
Plaintiffs Claims Should Be Dismissed For Failure To Plead Them With SufficientParticularity.
Plaintiffs unsupported, vague, and conclusory allegations are insufficient as a matter of
law, and should be dismissed. See Code Civ. Proc., 430.10(e) (demurrer proper where
complaint fails to state facts sufficient to constitute a cause of action). Claims under the Anti-
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Spam Law are grounded in fraud. See, e.g.,Hypertouch v. Azoogle.com, Inc.(9th Cir. 2010)
386 Fed. Appx. 701, 702 (We agree with the district court that the [Anti-Spam Law] causes of
action as pled sound in fraud.);Asis Internet Servs. v. Subscriberbase Inc. (N.D. Cal. Dec. 4,
2009) No. 09-3503, 2009 WL 4723338, at *3 (Anti-Spam Law claims were sufficiently grounded
in fraud where plaintiff alleged defendants intended to mislead the recipients of their emails).
Indeed, there is no question that Plaintiffs claims are grounded in fraud inasmuch as he
specifically alleges that the emails contained information that is false, misrepresented,
misleading, or otherwise deceptive. Compl. 10. And the Anti-Spam Law itself expressly
requires Plaintiff to prove that the emails at issue contain falsified, misrepresented, or forged
header information or that the subject lines would be likely to mislead a recipient about a
material fact. Hypertouch, Inc. v. Valueclick, Inc.(2011) 192 Cal.App.4th 805, 833. Seealso
Bus. & Prof. Code 17529.5(a).
Accordingly, asserted violations of the Anti-Spam Law must be pled with the particularity
required for fraud-based claims. See Moreland v. AD Optimizers, LLC(N.D. Cal. July 18, 2013)
No. 5:13-CV-00216-PSG, 2013 WL 3815663, at *2 (claims alleging that email headers
contained false and misleading information in violation of Anti-Spam Law were grounded in
fraud and must be pled with particularity);Robinson Helicopter Co., Inc.v. Dana Corp.
(2004) 34 Cal.4th 979, 993 (In California, fraud must be pled specifically; general and
conclusory allegations do not suffice (quotations omitted)), quotingLazar v. Superior Court
(1996) 12 Cal.4th 631, 645. This particularity requirement necessitates pleadingfactswhich
show how, when, where, to whom, and by what means the representations were tendered.
Robinson, supra, at 993 (quotations omitted).
InMoreland, for example, the court recently dismissed Anti-Spam Law claims for failure
to plead with particularity. See 2013 WL 3815663 at *3. The plaintiff inMorelandalleged that
he received over 1,300 spam emails that contained false and misleading information in the
email headers. Id.at *1. In finding that the allegations did not satisfy the heightened pleading
standard, the court explained that the plaintiff
has failed to provide the specifics regarding (including an example
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of) each type of allegedly false or misleading advertisement, thenumber of those advertisements [or] the date ranges of the emails ineach category. He did not provide a single example email, doesnot identify how many of the 1,300 emails fall into each of hisseven categories of prohibited tactics, and fails to identify thedate ranges of the emails in each category. Nor has he alleged
the domain namesfor the landing sites to which any of the emailsat issue redirect, who those sites were registered to, any of theallegedly unlawful subject lines, the sender of any of the emails,or the dates on which each email was sent.
Id.at *2 (emphasis added).
Plaintiffs bare allegations here similarly fail to satisfy the particularity requirement.
Indeed, Plaintiff has provided no specifics whatsoeverregarding the emails, much less the
required who, what, when, where, and how of the alleged fraud. Robinson, supra, 34 Cal.4th at
993. Like inMoreland, Plaintiff did not include a single example email with his Complaint. He
does not allege the dates whenhe received any of the emails. He does not identify the email
address(es) wherethe emails supposedly were sent. He does not describe whatthe content of the
emails say. He does not say whosupposedly sent each email. And he does not explain howthe
email header information is falsified, misrepresented, or forged or howany email subject lines
would be likely to mislead a recipient about a material fact regarding the contents of the
subject matter of the message in violation of the Anti-Spam Law. SeeBus. & Prof. Code
17529.5(a).
The lack of particularity of Plaintiffs allegations against Foot Lockeris further
compounded by the fact that he lumped together his accusations against Foot Locker and
1INK.com, broadly claiming, in the alternative, that the emails received from both parties
contained untraceable orotherwise misleading sender information; orfalsified, misleading,
orforged header orsubject line information; orwere presented to make it appear as though
Defendant advertisers were the actual senders when the emails in fact were sent by third-party
spammers. Compl. 6 (emphasis added). Plaintiff did not even attempt to delineate which
Defendant advertised in which emails. Indeed, the only information Plaintiff separately alleged
concerning the 325 to 335 purported Foot Locker-related emails is that a large number
contained generic header information, such as Foot Locker VIP, or used a domain including
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allege the existence of any relationship between Foot Locker and 1INK.com. Nor does he allege,
for example, that one defendant hired the other to advertise products by email, that the defendants
jointly advertise their products by email pursuant to a contract or other business relationship, or
that the defendants were working in concert.
The permissive joinder rule requires more. Defendants may be joined in a single action
only if: (1) the plaintiff asserts against them any right to relief jointly, severally, or in the
alternative; (2) that arises out of the same transaction, occurrence, or series of transactions or
occurrences; and(3) there is at least one question of law or fact that is common to all
defendants. SeeCode Civ. Proc., 379(a)(1).
Plaintiffs Complaint here does not support any of the above factors, much less all three.
Indeed, there is no link between the factual bases for Plaintiffs claims against Foot Locker and
his claims against 1INK.com. Plaintiff does not assert against Foot Locker and 1INK.com a right
to relief jointly, severally, or in the alternative. In other words, Plaintiff does not claim that Foot
Locker is responsible for the 1INK.com-related emails, or vice-versa. In fact, as noted, Plaintiff
does not allege any relationship whatsoever between Foot Locker and 1INK.com. Rather,
Plaintiffs claims against 1INK.com are entirely independent of his claims against Foot Locker,
and whether Plaintiff can prevail against Foot Locker has no bearing or impact on whether
Plaintiff can prevail against 1INK.com.
Nor do Plaintiffs claims against Foot Locker and 1INK.com arise out of the same series
of transactions or occurrences. Each alleged email was a separate and unrelated transaction
allegedly involving either Foot Locker or 1INK.com, but not both. Compl. 8, 9. Thus, there is
no connection whatsoever between the factual bases for Plaintiffs claims against Foot Locker
and his claims against 1INK.com. See Moe v. Anderson(2012) 207 Cal.App.4th 826, 833
(holding that the two plaintiffs sexual assault claims against the same defendant doctor occurring
at separate and distinct times were not properly joined because they did not arise out of the same
series of transactions or occurrences).
Plaintiffs claims against Foot Locker and 1INK.com likewise do not present common
questions of law or fact. As noted, each email was separate, distinct and unrelated, and allegedly
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was sent by eitherFoot Locker or1INK.com. The evidence Plaintiff will rely on for his claims
against Foot Locker (i.e., the emails) will not overlap with the evidence Plaintiff relies on for his
claims against 1INK.com. Each Defendants defenses will involve separate proofs that are
unique to each particular Defendant. And there are no common questions of law because whether
any emails allegedly sent to Plaintiff by Foot Locker violated the Anti-Spam Law has no bearing
whatsoever on whether emails sent to Plaintiff by 1INK.com violated the Anti-Spam Law. See
Grayson v. K-Mart Corp. (N.D. Ga. 1994) 849 F. Supp. 785, 789 (no common question of law or
fact where each demotion decision affecting individual plaintiffs was a discrete and wholly
separate act).
To be sure, Plaintiff has asserted the same general typeof claim against both Foot Locker
and1INK.com, i.e., he alleges each company sent him emails that violate the Anti-Spam Law.
But this clearly is insufficient to support joinder of Foot Locker and 1INK.com as Defendants in a
single action absent some relationship between the underlying transactions, which is non-existent.
Ibid.(It is, of course, true that plaintiffs have alleged against defendant claims based upon the
same general theories of law, but this is not sufficient to satisfy the permissive joinder rule).
The result is that 1INK.com was improperly joined. See PPV Connection v. Melendez
(D.P.R. 2010) 679 F. Supp. 2d 254, 258 (defendants who intercepted same live boxing event on
same day were improperly joined because they had not engaged in same transaction, were not
alleged to have acted in concert or to have any relationship to each other, and were likely to assert
different defenses and be confronted with different evidence);Moe, supra, 207 Cal.App.4th at
833 (two plaintiffs sexual assault claims against same defendant occurring at separate and
distinct times were not properly joined). Accordingly, the Court should sustain Foot Lockers
Demurrer. Should Plaintiff be granted leave to amend to plead his Anti-Spam Law claims with
particularity, Foot Locker will request that Defendant 1INK.com be severed from this action
unless Plaintiff can somehow also plead facts that demonstrate a basis to support joinder. Cf. On
The Cheap, LLC v. Does 1-5011(N.D. Cal. 2011) 280 F.R.D. 500, 502 (noting courts may sever
improperly joined parties at any time).
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EXHIBIT D
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