Case 2:14-cv-00950-RSM Document 33 Filed 11/17/14 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`CASE NO. C14-0950 RSM
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`ORDER GRANTING DEFENDANT
`APPLE’S MOTION TO DISMISS
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`HARD 2 FIND ACCESSORIES, INC.,
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`AMAZON.COM, INC., a Delaware
`corporation; and APPLE, INC., a
`California corporation,
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`Defendants.
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`Plaintiff,
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`v.
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`I.
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`INTRODUCTION
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`This matter comes before the Court on Defendant Apple, Inc’s (“Apple”) Motion to
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`Dismiss under Rule 12(b)(6) for failure to state a claim. Dkt. #26. Defendant argues that
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`Plaintiff’s Complaint should be dismissed because it fails to allege facts sufficient to support
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`any of the alleged causes of action against it. Defendant further argues that all causes of
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`action against it are foreclosed by the Noerr-Pennington doctrine. Id. Plaintiff, Hard 2 Find
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`Accessories, Inc. (“H2F”), responds that it has pled sufficient facts to meet the appropriate
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`notice pleading standard, and that Apple cannot rely on the Noerr-Pennington doctrine in this
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`case, and requests that the Court deny Defendant’s motion. Dkt. #29. For the reasons set
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`forth below, the Court disagrees with Plaintiff and GRANTS Defendant’s motion to dismiss.
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`ORDER
`PAGE - 1
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`Case 2:14-cv-00950-RSM Document 33 Filed 11/17/14 Page 2 of 7
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`II. BACKGROUND
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`The relevant background of this matter has been previously set forth in this Court’s
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`Order granting Amazon’s motion to dismiss, and is incorporated by reference herein. Dkt. #32.
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`III. DISCUSSION
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`A. Standard of Review
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`On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
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`12(b)(6), all allegations of material fact must be accepted as true and construed in the light
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`most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38
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`(9th Cir. 1996). However, the court is not required to accept as true a “legal conclusion
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`couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Complaint “must contain sufficient factual
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`matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678. This
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`requirement is met when the plaintiff “pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id. Absent facial
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`plausibility, Plaintiff’s claims must be dismissed. Twombly, 550 U.S. at 570.
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`The Court generally may not consider material beyond the pleadings in ruling on a
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`motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However,
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`where documents are referenced extensively in the Complaint, form the basis of Plaintiff’s
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`claim, or are subject to judicial notice, the Court may consider those documents in the context
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`of a motion to dismiss. United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003). The
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`Court may take judicial notice of facts not reasonably subject to dispute because they are
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`generally known within the trial court’s territorial jurisdiction or can be accurately and readily
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`determined from sources whose accuracy cannot reasonably be questioned. FRE 201(b).
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`ORDER
`PAGE - 2
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`Case 2:14-cv-00950-RSM Document 33 Filed 11/17/14 Page 3 of 7
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`Apple has requested that the Court take judicial notice of five exhibits. Dkt. #27.
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`Plaintiff does not appear to object to this Court taking notice of three Trademark registrations.
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`See Dkts. #27, Exs. 3-5 and #30. Accordingly, the Court has taken judicial notice of and
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`considers herein those registrations. However, Plaintiff does object to this Court taking notice
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`of two archived web pages, asserting that they are inherently unreliable and in dispute. See
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`Dkts. #27, Ex. 1 and 2 and #30. The Court does not rely on those web pages in its decision in
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`this case, and therefore declines to take judicial notice thereof.
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`B. Plaintiff’s Complaint
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`Plaintiff has alleged five causes of action against Apple, including: violations of state
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`and federal anti-trust statutes (Dkt. #1 at ¶ ¶ 97-109);
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`tortious
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`interference with
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`business/contractual expectancy (Dkt. #1 at ¶ ¶ 117-125); unjust enrichment (Dkt. #1 at ¶ ¶
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`149-151); violation of Washington’s Consumer Protection Act (“CPA”) (Dkt. #1 at 152-158);
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`and defamation (Dkt. #1 at ¶ ¶ 159-167). The Court finds that Apple is immune from suit on
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`all of these claims.
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`1. Noerr-Pennington Doctrine
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`Plaintiff’s claims against Apple are predicated on a single infringement notice that
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`Apple sent to Amazon in June of 2013. See Dkt. #1. Apple asserts immunity as to this notice
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`under a doctrine first recognized in two antitrust cases, E. R.R. Presidents Conference v. Noerr
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`Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and United Mine
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`Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), which is now
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`generally known as the Noerr-Penington doctrine. Although the immunity recognized in these
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`two suits was premised on both the Sherman Act and the First Amendment right to petition,
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`Cardtoons, L. C. v. Major League Baseball Players Ass’n, 208 F.3d 885, 890 (10th Cir. 2000),
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`ORDER
`PAGE - 3
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`Case 2:14-cv-00950-RSM Document 33 Filed 11/17/14 Page 4 of 7
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`subsequent cases have also applied the doctrine outside of the antitrust context. See Theme
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`Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1007 (9th Cir. 2008) (holding “that the
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`Noerr-Pennington doctrine applies to Theme’s state law tortious interference with prospective
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`economic advantage claims”); Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006) (“The
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`Noerr-Pennington doctrine derives from the First Amendment’s guarantee of ‘the right of the
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`people . . . to petition the Government for a redress of grievances.’”).
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`The Noerr-Pennington doctrine insulates from liability “petitioning conduct.” Theme,
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`546 F.3d at 1006. Petitioning conduct includes the filing of a “reasonably based but
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`unsuccessful lawsuit,” Sosa, 437 F.3d at 930, as well as conduct “incidental to a lawsuit,
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`including a pre-suit demand letter,” so long as it does not fall into the realm of “sham
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`litigation.” Theme, 546 F.3d at 1007. The Ninth Circuit has also recognized that claims arising
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`from pre-suit cease-and-desist letters sent by one party to the other may be subject to immunity
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`under the Noer-Pennington doctrine. Rock River Communs., Inc. v. Universal Music Group,
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`Inc., 745 F.3d 343, 351 (9th Cir. 2014). Likewise, this Court has extended the doctrine to
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`claims arising out of a cease-and-desist letter to a third-party distributor demanding that the
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`distributor stop selling certain allegedly infringing items, similar to the situation in the instant
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`matter. See Modular Arts, Inc. v. Interlam Corp., 2007 U.S. Dist. LEXIS 51225, at 8-9 (W.D.
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`Wash. July 13, 2007). Based on the reasoning in these referenced cases, the Court agrees that
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`Apple has immunity from suit in this matter.
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`To defeat immunity under the Noerr-Pennington doctrine, the non-moving party must
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`show that the moving party’s efforts to protect its legal rights were a “sham.” A “sham”
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`lawsuit is one where the suit is both “objectively baseless in the sense that no reasonable
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`litigant could realistically expect success on the merits” and “an attempt to interfere directly
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`ORDER
`PAGE - 4
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`Case 2:14-cv-00950-RSM Document 33 Filed 11/17/14 Page 5 of 7
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`with the business relationship of a competitor through the use of the governmental process —
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`as opposed to the outcome of that process.” Rock River Communs., 745 F.3d at 351-52
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`(citations omitted). In conclusory manner, H2F argues that it has pleaded facts sufficient to
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`establish a “sham” defense to Apple’s Noerr-Pennington immunity. Dkt. #29 at 11. The Court
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`disagrees. A review of the Complaint reveals that H2F has failed to allege sufficient facts to
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`show that Apple’s letter was “objectively baseless” and that Apple’s “motive in bringing it was
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`unlawful.” Modular Arts, Inc., 2007 U.S. Dist. LEXIS 51225(citation omitted). As a result,
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`H2F has failed to state a claim upon which relief can be granted in light of Apple’s Noerr-
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`Pennington immunity.
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`2. Plaintiff’s Anti-Trust Claims Against Apple
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`Although the Court has determined that Apple is immune from suit on all of H2F’s
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`claims against it, the Court also wishes to acknowledge that Plaintiff’s anti-trust claim against
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`Apple fails for other reasons, consistent with this Court’s prior Order granting dismissal of
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`Plaintiff’s anti-trust claim against Amazon. See Dkt. #32. Plaintiff’s Cause of Action Three
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`alleges violations of state and federal antitrust laws against Amazon and Apple collectively.
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`Dkt. #1 at ¶ ¶ 97-109. Essentially, this claim alleges that Apple and Amazon have conspired to
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`“shutter” Apple’s competitors. Specifically, H2F alleges that Apple and Amazon have agreed
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`to a scheme whereby Apple monitors sellers who sell items at an “aggressive price point,” then
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`report such sellers to Amazon, which in turn shuts down the seller. Then, Apple allegedly
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`stalls its resolution of the complaint with the seller in order to allow Amazon to “conjure up” an
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`after-the-fact reason for closing the seller’s account. Dkt. #1 at ¶ 103. Alternatively, Plaintiff
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`alleges that Amazon and Apple are engaged in horizontal price fixing because they both sell the
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`same iPad accessories as H2F. Dkt. #1 at ¶ ¶ 108-109.
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`ORDER
`PAGE - 5
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`Case 2:14-cv-00950-RSM Document 33 Filed 11/17/14 Page 6 of 7
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`As the Court previously determined, Plaintiff fails to allege any facts to support either
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`basis for the claim. In fact, a review of Plaintiff’s alleged facts reveals no allegations of any
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`relationship between Apple and Amazon, other than Apple communicated with Amazon
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`regarding the complaint of counterfeit iPad covers. See Dkt. #1 at ¶ ¶ 8-86. There are no facts
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`supporting any conspiracy or collusion, or even the inference of any conspiracy or collusion
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`between the two, for any purpose. Nor are there any facts alleged to support even an inference
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`that the two entities conspired to restrain trade among States within the United States or with
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`foreign countries. See Brantley v. NBC Universal, Inc., 675 F.3d 1192, 1197 (9th Cir. 2012)
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`(setting forth required elements of a Sherman Act antitrust claim). Therefore, Plaintiff’s
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`antitrust claim is wholly without factual support, and must be dismissed against Apple.
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`C. Leave to Amend
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`Ordinarily, leave to amend a Complaint should be freely given following an order of
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`dismissal, “unless it is absolutely clear that the deficiencies of the complaint could not be cured
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`by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); see also DeSoto v.
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`Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (“A district court does not err in
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`denying leave to amend where the amendment would be futile.” (citing Reddy v. Litton Indus.,
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`Inc., 912 F.2d 291, 296 (9th Cir. 1990)). Here, the Court concludes that granting leave to
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`amend would be futile. The Court can conceive of no possible cure for the deficiencies in
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`Plaintiff’s Complaint, particularly given the immunity enjoyed by Apple as discussed above.
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`IV. CONCLUSION
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`Having reviewed the relevant pleadings, the declarations and exhibits attached thereto,
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`and the remainder of the record, the Court hereby ORDERS:
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`ORDER
`PAGE - 6
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`Case 2:14-cv-00950-RSM Document 33 Filed 11/17/14 Page 7 of 7
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`1) Defendant’s request for judicial notice (Dkt. #27) is GRANTED IN PART and
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`DENIED IN PART, as noted above.
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`2) Defendant’s Motion to Dismiss (Dkt. #26) is GRANTED. All claims against
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`Defendant Apple, Inc. are DISMISSED with prejudice.
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`3) As the Court previously granted dismissal of Defendant Amazon.com, Inc.(Dkt. #
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`32), this case is now CLOSED.
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`4) Judgment shall be entered by the Clerk.
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`DATED this 17 day of November 2014.
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`A
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`RICARDO S. MARTINEZ
`UNITED STATES DISTRICT JUDGE
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`ORDER
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