Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-02231-RJB

Document 10

Filed 01/22/2008

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JAMES J. MITTERMILLER, Cal. Bar No. 85177 imittermiller sheDDardmullin.com FRANK J. POLE , al. ado. 167852 fpolek(&sheDDardmullin.com EEN, Cal. Bar No. 222095 i dineena,shemardmullin. com HEPPAR ; MULLIN,, -RTC^HTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations 501 West Broadway, 19th Floor San Diego, California 92101-3598 Telephone: 619-338-6500 Facsimile: 619-234-3815 Attorneys for Defendants SPRINT SOLUTIONS INC. and SPRINT SPECTRUM L.P.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UTILITY CONSUMERS' ACTION NETWORK and ERIC TAYLOR, on behalf of themselves, their members and/or all others similarly situated, as applicable, Plaintiffs,
V.

Case No. 07 CV 2231 W (LSP) DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS AND ALTERNATIVELY, MOTION TO STRIKE [F.R.C.P. 12(b)(6) and 12(f)]

SPRINT SOLUTIONS, INC.; SPRINT SPECTRUM L.P.; SPRINT-NEXTEL CORPORATION, Defendants.

Judge: Hon. Thomas J. Whelan Courtroom: Seven Date: March 3, 2008 Time: 10:30 a.m. NO ORAL ARGUMENT PER LOCAL RULE 7.1(d)(1)

W02-WEST:8JCD 1 \400684148.1 USDC Case No. 07 CV 2231 W (LSP)

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DEFENDANTS' NO OF MO & MO TO DISMISS AND, ALTERNATIVELY, MO TO STRIKE

Case 3:07-cv-02231-RJB

Document 10

Filed 01/22/2008

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TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on March 3, 2008, at 10:30 a.m., or as soon thereafter as this matter may be heard in Courtroom Seven before the Honorable Thomas J. Whelan of the above-entitled Court, located at 940 Front Street, San Diego, California 92101, Defendants Sprint Solutions, Inc. and Sprint Spectrum L.P. (collectively "Sprint") will and hereby do move the Court pursuant to Federal Rule of Civil Procedure 12(b)(6) for an order dismissing the following claims for relief contained in Plaintiffs' First Amended Complaint: (1) violation of Business and Professions Code section 17200; (2) violation of the Consumer Legal Remedies Act; (3) violation of the Federal Communications Act; (4) conversion; and (5) cramming.

Alternatively, Sprint moves pursuant to Federal Rule of Civil Procedure 12(f) to strike paragraphs 45 (page 17, line 16 ("California Civil Code sec. 1565, California Civil Code section 1670.5")), 61 (page 21, lines 17-23 ("As Sprint ... under the CLRA")), and 79 (page 25, lines 26-27 ("...and exemplary ... and fraudulent") of Plaintiffs' First Amended Complaint and paragraph 3 of Plaintiffs' Prayer for Relief (page 26, lines 22-23, in its entirety as it pertains to the Third Cause of Action, and the word "exemplary."

Unless requested by the Court, there will be no oral argument on this motion, pursuant to Local Rule 7.1(d)(1).

Sprint bases this Motion on the following grounds:

2W02-WEST:8JCD1\400684148.1 USDC Case No. 07 CV 2231 W (L.SP) DEFENDANTS' NO OF MO & MO TO DISMISS AND, ALTERNATIVELY, MO TO STRIKE

Case 3:07-cv-02231-RJB

Document 10

Filed 01/22/2008

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Plaintiffs'I complaint fails to state a valid claim for relief for (1) 1. violation of Business and Professions Code section 17200, (2) violation of the Consumer Legal Remedies Act, (3) violation of the Federal Communications Act, (4) conversion, and (5) cramming.

2.

Paragraphs 45, 61, 79 of Plaintiffs' First Amended Complaint

and paragraph 3 of the prayer for relief contain immaterial and impertinent matters that should be stricken. This Motion is based upon this Notice of Motion and Motion, Sprint's Memorandum of Points and Authorities in Support thereof, Sprint's Request for Judicial Notice and all of the pleadings, records, and papers on file herein, as well as such other oral and/or documentary evidence as may be presented at or before the time of the hearing on this Motion.

DATED: January 22, 2008 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

s/James J. Mittermiller Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINT SPECTRUM L.P. E-mail: [email protected]

W02-WEST: 8JCD 1 \400684148.1 USDC Case No. 07 CV 2231 W (LSP)

DEFENDANTS' NO OF MO & MO TO DISMISS AND, ALTERNATIVELY, MO TO STRIKE