In re Apple Inc.

• Decision Date: 22 April 2019
• Docket Number: Case No. 18-md-02827-EJD
• Citation: 386 F.Supp.3d 1155
• Parties: IN RE: APPLE INC. DEVICE PERFORMANCE LITIGATION
• Court: U.S. District Court — Northern District of California

386 F.Supp.3d 1155

IN RE: APPLE INC. DEVICE PERFORMANCE LITIGATION

Case No. 18-md-02827-EJD

United States District Court, N.D. California, San Jose Division.

Signed April 22, 2019

Filed May 3, 2019

ORDER GRANTING MOTION FOR RECONSIDERATION; GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Re: Dkt. Nos. 177, 236-1, 272, 281, 282, 285, 307, 308.

EDWARD J. DAVILA, United States District Judge

This putative class action against Apple Inc. ("Apple") is brought by Plaintiffs from across the U.S. as well as multiple foreign countries. Presently before the Court are several pending motions.

In its order granting in part and denying in part Apple's motion to dismiss the Consolidated Amended Complaint (CAC), the Court denied Apple's motion with respect to the non-U.S. Plaintiffs. Apple now asks the Court to reconsider its ruling on that issue. Dkt. No. 236-1. The Court will GRANT Apple's motion for reconsideration.

Apple moves to dismiss claims in the Second Amended Complaint ("SAC"). Dkt. No. 272 ("MTD"). The Court GRANTS in part and DENIES in part Apple's motion to dismiss.

Along with their Opposition to Apple's motion to dismiss, Plaintiffs separately filed "Objections" to Apple's motion. Dkt. No. 282. Plaintiffs "request[ed] leave to file these objections as a separate document" because of "the seriousness of Plaintiffs' objections and the large number of irregularities in the MTD." Id. at 1. Plaintiffs' request is procedurally inappropriate. See Civ. L.R. 7-3(a) ("Any evidentiary and procedural objections to the motion must be contained within the brief or memorandum."). Plaintiffs' offer no compelling explanation for their attempt to circumvent the page limits that this Court set for briefing on the motion to dismiss. Accordingly, Plaintiffs' request is DENIED, and the Court will not consider this document. Plaintiffs shall not submit any billing requests related to production of this extraneous document.

In addition, Plaintiffs' Opposition is accompanied by the Declaration of Joseph Cotchett, which includes as exhibits additional documents produced by Apple in discovery or allegedly downloaded from the Internet Archives as copies of Apple's own webpages. Dkt. No. 280-1. These documents are not properly before the Court as part of the motion to dismiss, so the Court does consider them. See Branch v. Tunnell , 14 F.3d 449, 453 (9th Cir. 1994) ("Generally, a district court may not consider any material beyond the pleadings in a ruling on a Rule 12(b)(6) motion." (citation omitted)) overruled on other grounds by Galbraith v. Cty. of Santa Clara , 307 F.3d 1119, 1123 (9th Cir. 2002).

The parties' requests for judicial notice are before the Court. Dkt. Nos. 177, 281. The Court GRANTS Apple's request to take judicial notice of the hardware warranty. Dkt. No. 177. The Court DENIES Plaintiffs' request to take judicial notice of documents produced during discovery. Dkt. No. 281.

Finally, the parties have each filed administrative motions for leave to file statements of recent decision. Dkt. Nos. 307, 308. These administrative motions are improper under Civil Local Rules 7-3(d)(2) and 7-11. The Court DENIES these administrative motions.

I. BACKGROUND

In its order granting in part and denying in part the motion to dismiss, the Court discussed the background facts in detail. Dkt. No. 219. The Court will not repeat that discussion here and assumes familiarity with it. At a high level, this case involves allegations that Apple attempted to conceal iPhone battery defects and that Apple failed to adequately disclose that certain software updates would affect device performance.

On July 2, 2018, Plaintiffs filed the CAC, asserting 76 causes of action under one federal statute, all 50 states' statutes, and the common law, on behalf of a class including consumers from the 50 states and other territories of the United States as well as multiple foreign countries. Dkt. No. 145. After considering the parties' proposals for proceeding with a motion to dismiss a limited set of claims, the Court ordered that Apple's motion to dismiss the CAC would be limited to counts one through six of the CAC and the threshold issues of whether Plaintiffs could assert claims on behalf of non-U.S. residents and whether Plaintiffs' claims extended to certain iPad devices. See Dkt. No. 163 at 1. On August 9, 2018, Apple filed its motion to dismiss the CAC. Dkt. No. 176. On October 1, 2018, the Court granted in part and denied in part Apple's motion to dismiss the CAC. Dkt. No. 219 ("Order").

With respect to the Foreign plaintiffs, the Court noted that "[m]any of the [practical and constitutional] concerns that Apple raises are substantial and potentially well-founded;" however, the Court explained that "[t]he issues identified by Apple are better addressed at a later stage of the proceedings, such as class certification." Dkt. No. 219 at 8. Except with respect to claims under the California False Advertising Law, the Court concluded that non-U.S. Plaintiffs could invoke California law. Id. at 13. The Court also determined that the Computer Fraud and Abuse Act applied extraterritorially, and denied Apple's request to dismiss the U.K. Plaintiffs' claims under the doctrine of international comity or forum non conveniens. Id. at 15, 17.

On November 15, 2018, Apple filed a motion for leave to file a motion for reconsideration of the Court's Order and motion for reconsideration. Dkt. No. 236 ("Mot. for Reconsideration"). Apple's motion is limited to the Court's choice-of-law conclusion that foreign Plaintiffs may invoke California law. On December 4, 2018, the Court granted Apple's motion for leave to file a motion for reconsideration. Dkt. No. 246. The Court deemed filed the attached motion for reconsideration and invited responsive briefing. Id. at 2. Plaintiffs filed an opposition, Dkt. No. 266 ("Opp. re Reconsideration"), and Apple filed a Reply to MTD, Dkt. No. 269 ("Reply re Reconsideration").

Apple filed the instant motion to dismiss on January 24, 2019. Dkt. 272. Plaintiffs opposed the motion to dismiss, requested the court take judicial notice of various documents, and sought leave to file additional objections to the motion to dismiss. Dkt. Nos. 280 ("Opp. To MTD"), 281, 282. Apple filed a reply. Dkt. No. 286. The Court heard oral argument from the parties on March 7, 2019. Dkt. No. 302.

II. LEGAL STANDARDS

Motions for reconsideration are disfavored and "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error , or if there is an intervening change in the controlling law." McDowell v. Calderon , 197 F.3d 1253, 1255 (9th Cir. 1999) (per curiam) (internal quotation and citation omitted). Furthermore, "[a] motion for reconsideration ‘may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.’ " Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. , 571 F.3d 873, 880 (9th Cir. 2009) (quoting Kona Enters., Inc. v. Estate of Bishop , 229 F.3d 877, 890 (9th Cir. 2000) ).

The Northern District of California has local rules governing motions for reconsideration. Parties may only file a motion for reconsideration with leave of the Court. Civ. L.R. 7-9(a). A motion for reconsideration may be made on three grounds: (1) a material difference in fact or law exists from that which was presented to the court, which, in the exercise of reasonable diligence, the moving party did not know at the time of the order for which reconsideration is sought; (2) the emergence of new material facts or a change of law; or (3) a manifest failure by the court to consider material facts or dispositive legal arguments. Civ. L.R. 7-9(b). The moving party may not repeat any oral or written argument previously made. Civ. L.R. 7-9(c).

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of claims alleged in the complaint. Fed. R. Civ. P. 12(b)(6) ; Conservation Force v. Salazar , 646 F.3d 1240, 1241–42 (9th Cir. 2011). The complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). When deciding whether to grant a motion to dismiss, the court must construe the alleged facts in the light most favorable to the plaintiff. Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am. , 768 F.3d 938, 945 (9th Cir. 2014). However, "courts are not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Dismissal "is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). The court's review is limited to the pleadings, documents incorporated-by-reference in the pleadings, and matters of which the court may take judicial notice. See Khoja v. Orexigen Therapeutics, Inc. , 899 F.3d 988, 998 (9th Cir. 2018).

Consumer-protection claims that sound in fraud are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). Vess v. Ciba-Geigy Corp. USA , 317 F.3d 1097, 1103–04 (9th Cir. 2003) ; In re Apple & AT & T iPad Unlimited Data Plan Litig. , 802 F. Supp. 2d 1070, 1075 (N.D. Cal. 2011). Rule 9(b) requires that "a party must state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). The circumstances constituting the fraud must be "specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong." Kearns v. Ford Motor Co. , 567 F.3d 1120, 1124 (9th Cir. 2009) (alteration in original) (quoting Bly-Magee v. California , ...