Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-02907-MHP

Document 26

Filed 08/11/2008

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MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY, SBN. 136288 2 Palo Alto Square 3000 El Camino Real, Suite 700 Palo Alto, CA 94306-2122 Tel: 650.843.4000 Fax: 650.843.4001 E-mail: [email protected] MORGAN, LEWIS & BOCKIUS LLP ANN MARIE REDING, SBN 226864 One Market Street, Spear Street Tower San Francisco, California 94105-1126 Tel: 415.442.1000 Fax: 415.442.1001 E-mail: [email protected] Attorneys for Defendant COMCAST INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL KEATING-TRAYNOR on behalf of himself and all others similarly situated; Plaintiffs, vs. AC SQUARE INC.; COMCAST INC.; AFSHIN GHANEH; ANDREW BAHMANYAR; AND DOES 1-60 INCLUSIVE; Defendants.

Case No. CV-08-2907-MHP DEFENDANT COMCAST INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT FRCP Rule 12(B)(6) Date: September 15, 2008 Time: 2:00 p.m. Courtroom: 15 Judge: Honorable Marilyn H. Patel

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 15, 2008, at 2:00 p.m., or as soon thereafter as the matter may be heard in Courtroom 15 of the above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, California 94102, Defendant Comcast Inc. (hereinafter "Comcast"
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Case No. CV-08-2907-MHP DEFENDANT COMCAST'S NOTICE OF MOTION AND MOTION TO DISMISS

Case 3:08-cv-02907-MHP

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Filed 08/11/2008

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or "Defendant") will and hereby moves this Court to dismiss Plaintiff Daniel Keating-Traynor's ("Plaintiff") First Amended Complaint against Comcast, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff's First Claim for Violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (hereinafter "FLSA") and Second Claim for Conspiracy to Violate the FLSA both fail to state a claim upon which relief can be granted because his claims are time-barred by the maximum three-year statute of limitations. Leave to amend would be futile because the allegations in Plaintiff's First Amended Complaint conclusively demonstrate that Plaintiff would not be able to state viable claims under these theories. This motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the Request for Judicial Notice, and the pleadings and papers previously filed.

MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY ANN MARIE REDING

Dated: August 11, 2008

By

/s/ Ann Marie Reding Daryl S. Landy Ann Marie Reding Attorneys for Defendant COMCAST INC.

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Case No. CV-08-2907-MHP DEFENDANT COMCAST'S NOTICE OF MOTION AND MOTION TO DISMISS