U.S. District Judge Stephen Bough granted plaintiff Michelle Blankenship and defendant T-Mobile Central’s stipulation Monday (see 2310170013) for dismissal Tuesday, said a text-only order (docket 4:23-cv-00561) in U.S. District Court for Western Missouri in Kansas City. The parties submitted a joint stipulation of dismissal without prejudice. After granting the dismissal without prejudice Tuesday, Bough filed another notice that the filing was in error and ordered the case dismissed with prejudice. Blankenship’s August complaint alleged T-Mobile collected from customers a “city license” or “utility tax” it wasn’t authorized to collect (see 2308100031). In its September motion to dismiss, T-Mobile said Blankenship’s case was “the exact same lawsuit” she filed last year in which a state court compelled her claims to arbitration (see 2309130009). Blankenship asserted two counts against T-Mobile, for unjust enrichment, and for alleged violations of the Missouri Merchandising Practices Act. “Both claims are governed by a five-year limitations period that long ago expired," said T-Mobile's motion to dismiss. The sort of “gamesmanship” and waste of judicial resources being practiced by Blankenship and her attorneys have "long been disallowed,” it said.

Plaintiff Michelle Blankenship and defendant T-Mobile Central filed a joint stipulation (docket 4:23-cv-00561) Monday in U.S. District Court for Western Missouri in Kansas City to dismiss without prejudice Blankenship’s August complaint alleging T-Mobile collected from customers a “city license” or “utility tax” it wasn’t authorized to collect (see 2308100031). In its September motion to dismiss, T-Mobile said Blankenship’s case was “the exact same lawsuit” she filed last year in which a state court compelled her claims to arbitration (see 2309130009). Blankenship asserted two counts against T-Mobile, for unjust enrichment, and for alleged violations of the Missouri Merchandising Practices Act. “Both claims are governed by a five-year limitations period that long ago expired," said T-Mobile's motion to dismiss. The sort of “gamesmanship” and waste of judicial resources being practiced by Blankenship and her attorneys have "long been disallowed,” it said.

U.S. District Judge Susan Brnovich for Arizona in Phoenix denied defendant GlobalguruTech’s (GGT) latest motion to quash Xfinity Mobile’s subpoenas to five banks and American Express because the subpoenas seek information directly relevant to the plaintiff’s claims, said her Friday order (docket 2:22-cv-01950). Brnovich also further denied GGT’s motion to quash Xfinity’s subpoenas to Zelle, UPS and Paypal, the order said. Xfinity sent the subpoenas to third parties that do business with GGT; the defendant argued the subpoenas were “overly broad.” GGT and owner Jakob Zahara don’t have standing to move to quash the subpoenas, and they didn’t show a protective order was a necessary alternative, said Brnovich. Xfinity's Nov. 16 complaint alleges defendants and their co-conspirators are handset traffickers who exploit financial incentives to acquire phones by using unlawful methods to circumvent the procedures put in place to protect Xfinity Mobile and its legitimate customers -- and then resell the phones for substantial profit. Plaintiffs argued the Arizona court isn't the proper jurisdiction to hear the motion because the motion should have been brought in Georgia, where compliance is required. Neither side cited a case where a law firm demands compliance outside of the state where the original action was filed, said the judge. Plaintiffs filed their case in Arizona, the Arizona court issued the subpoenas, and the various respondents are citizens of California, New York, Minnesota, Oklahoma, Missouri and Georgia, she said. “Georgia has nothing to do with the litigation,” so the court found Arizona the proper jurisdiction to hear the motion.

The allegations of nine iPhone 7 and iPhone 7 Plus users that Apple falsely promoted iOS 15 as improving the performance of their older devices but instead degraded the devices’ performance (see 2308030055) “undermine the entirety of their complaint,” said Apple’s memorandum of points and authorities Friday (docket 5:23-cv-03882) in U.S. District Court for Northern California in San Jose in support of its motion to dismiss. The plaintiffs concede they voluntarily installed iOS 15, and that alone “warrants dismissal of the computer-intrusion claims, all of which require that Apple accessed their iPhones without their permission,” said the memorandum. The complaint also asserts Apple designed iOS 15 to harness new technology and to protect devices from security vulnerabilities, not to harm older devices, so they can’t “plausibly allege intent to damage their devices,” it said. The complaint also doesn’t identify “an actionable misstatement or omission -- let alone one that plaintiffs relied on -- so their consumer-protection claims cannot survive,” it said. Those “overarching flaws” aren’t the complaint’s only problems, said the memorandum. It contains a range of additional “claim-specific deficiencies” that provide independent grounds for dismissal of many of the claims, it said. A private right of action is available under the Computer Fraud and Abuse Act only if plaintiffs allege at least $5,000 in losses during a single year, but the complaint “makes no attempt to quantify the alleged injuries here,” it said. The trespass claim “requires significant interference with plaintiffs’ property interest in their iPhones,” said the memorandum. That’s a standard “not met by assertions of reduced battery life or delays of a fraction of a second in opening apps,” as the plaintiffs claim they encountered on their iPhone 7s after installing the iOS 15 update, it said. The trespass claim also is barred by the “economic loss rule,” which limits tort recovery “to narrow circumstances not alleged here,” it said. The California False Advertising Law and Unfair Competition Law claims also should be dismissed “because they are equitable claims for which jurisdiction and statutory standing is lacking,” it said. The Louisiana Unfair Trade Practices Act claim is untimely “and not based on an actionable economic injury,” it said. A range of factors, including the amount of available memory, battery health, cell signal strength and outdated apps, could affect device performance, said Apple. But the plaintiffs claim “this purported performance degradation occurred because iOS 15 was optimized for newer iPhone models with more powerful chips,” it said.

Amazon removed to U.S. District Court for Central California in Los Angeles a Sept. 1 complaint in Los Angeles Superior Court in which a deactivated third-party seller, Yoshiki Dreamer, seeks damages for breach of contract, fraud, conversion and violations of California’s unfair competition law, said Amazon’s notice of removal Friday (docket 2:23-cv-08656). The complaint alleges Amazon perpetuated a “scheme” in which it “abruptly terminated” the seller’s account “without cause,” and seized, “without explanation,” nearly $56,000 in sales proceeds and nearly $5,500 in inventory. “Despite demand,” Amazon hasn’t relinquished the inventory or profits to Yoshiki Dreamer, “or otherwise justified its bad faith deactivation” of the seller’s account, it said. Yoshiki Dreamer’s dispute with Amazon is one of the few in which a deactivated third-party seller asked the court directly to order Amazon to release the contested funds, rather than petition the court to vacate an arbitration award in Amazon’s favor. Amazon doesn’t waive “its respective rights to assert any defense,” including its right to compel arbitration or move to dismiss the action for failure to state a claim, said its notice of removal. Yoshiki Dreamer “fully performed all the terms and conditions on its part to be performed” under its June 14 contract with Amazon, said the seller’s complaint. Amazon “failed, neglected and refused to pay any of the amounts owed,” in breach of the contract, it said. Amazon’s conduct was “perpetrated in bad faith in a knowing, willful, and fraudulent manner and with malice and oppression,” said the seller. Its complaint seeks punitive damages “in a sum sufficient to punish and deter” Amazon from “ever again engaging in such reprehensible misconduct,” it said.

U.S. District Judge Regina Rodriguez for Colorado in Denver, adopting the recommendation of U.S. Magistrate Judge Reid Neureiter, granted Google’s motion to compel plaintiff Steven Nichols’ claims to arbitration and to stay the litigation, pending the outcome of that arbitration, said Rodriguez’s signed order Wednesday (docket 1:23-cv-01022). Nichols sued Google April 22, alleging he lost the ability to access 5G services on his Pixel 4a, Pixel 5 and Pixel 5a phones due to a Google software update. Google’s June 7 motion to compel said Nichols agreed to a mandatory arbitration provision when he set up his phones.

A third securities fraud complaint against Verizon in less than three months was filed Thursday (docket 3:23-cv-21123) in U.S. District Court for New Jersey in Trenton, with plaintiff Andrew Jankowski alleging the company duped shareholders when it failed to disclose “material adverse facts” that Verizon owns cables around the U.S. that are highly toxic due to being wrapped in lead. Verizon faces “potentially significant litigation risk,” plus regulatory risk and reputational harm, “as a result of its ownership of these lead cables and the health risks stemming from their presence” around the U.S., alleged Jankowski’s complaint. Verizon “was warned about the damages and risks presented by these cables but did not disclose that they posed a threat to employee safety, to everyday people, and communities around the country,” it said. Jankowski’s suit names CEO Hans Vestberg and former Chief Financial Officer Matt Ellis, plus 11 Verizon board members, as defendants. Previous lawsuits over Verizon’s lead-wrapped cables were filed July 28 (see 2308020046) and Aug. 18 (see 2308200001).

Plaintiff Sumeet Srivastava and defendant Amazon filed notices of related cases involving Amazon’s product returns policies Wednesday in U.S. District Court for Washington in Seattle. Srivastava, who sued Amazon last week in a breach of contract case involving the return of a scooter (see 2310060026), said his case and Abbott v. Amazon, filed Sept. 5 in the same court, involve “substantially the same events” involving Amazon’s refusal to provide refunds to its customers who "timely returned" purchases to Amazon or its affiliates as required by its returns policies. Plaintiffs in the two cases bring claims on behalf of similar, but not identical, classes, said Srivastava’s notice (docket 2:23-cv-01545). Amazon’s notice says Abbott plaintiffs claim to have been damaged by Amazon’s conduct and seek to represent a nationwide class of persons charged by Amazon “for failing to return a product that was timely returned in its original condition.” Srivastava seeks to represent a nationwide class of customers who timely returned a purchase to Amazon or a designated location and were (1) either provided a refund by Amazon for the purchase and later re-charged for it, or (2) were never provided a refund because they purportedly didn’t return the item on time. Srivastava’s class action also seeks to represent a nationwide “Amazon Drop-off Subclass” of consumers who returned a purchase on time to Amazon or a designated location, Amazon noted. Both actions allege the same causes of action involving Amazon’s return and refund policies, and there's a “substantial overlap” between the proposed classes, said the defendant. The cases arise from substantially similar allegations, call for a determination of substantially similar questions of law and are likely to entail substantial duplication of judicial labor, it said.

The “drastic relief” plaintiffs in In Re Meta Pixel Tax Filing Cases and Mary Smith v. Google request in their Oct. 6 administrative motion to consider whether Justin Hunt v. Meta Platforms should be severed and related is “not about consolidation,” said Hunt’s Tuesday opposition (docket 5:23-cv-03527 ) in U.S. District Court for Northern California in San Jose. Instead, “it is a brazen attempt to exert control over a separate case that alleges entirely different claims -- violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and Internal Revenue Code -- and features a different Defendant, H&R Block," Hunt said. The Meta and Google class actions both arise from allegations that when class members used certain tax filing websites, their filing information was “unlawfully shared” with either Google or Meta. Hunt doesn’t dispute that the class action he filed is related to the other two; he opposes severance of his claims, said the opposition. That plaintiffs in the other two cases “failed to serve” Hunt with their motion is a maneuver “approaching bad faith,” he said. The severance request must be rejected because it would require the court to “engage in impermissible claim-splitting,” said Hunt. In an Oct. 5 email, Hunt's counsel told counsel for In re Meta and Google his client decided to drop from his lawsuit the only claims that overlapped with the other two complaints: his Federal Wiretap Act claim and the California Invasion of Privacy Act (CIPA) claim, said the opposition. The email "did not contest that the Hunt matter may be related to In re Meta and Google"; it instead informed counsel that Hunt couldn't consent to severance of his and putative class members’ claims, it said. Hunt’s Oct. 5 amended complaint "makes clear that he seeks something drastically different from what the In re Meta and Google plaintiffs seek: to prosecute civil RICO claims and Internal Revenue Code Violations on behalf of a national class against defendants H&R Block, Meta and Google," said the opposition. The amended complaint removes all Federal Wire Tap and CIPA claims alleged in the original complaint, and all California class claims. Hunt requests a hearing on the motion due to the “extraordinary nature” of relief sought.

U.S. District Judge Joseph Spero for Northern California in San Francisco should dismiss plaintiff Joel Fink’s fraud complaint against One Technologies because the consumer credit information company isn’t subject to personal jurisdiction in California, said its motion Wednesday (docket 3:23-cv-05086). Fink alleges the company sent him at least 73 unsolicited and unlawful spam emails in violation of Section 17529.5 of the California Business and Professional Code (see 2310050001). One Technologies also isn’t subject to general jurisdiction in California because it’s headquartered in Texas and has no physical offices in California, said its motion to dismiss. It’s not subject to specific jurisdiction in California either, it said. One Technologies also denies it sent Fink the spam emails, said the motion. Third-party independent contractors known as “publishers” did so, “and they exercised exclusive control over to whom and where emails were sent,” it said. In fact, One Technologies didn’t know about the emails at issue until after Fink complained to the company about them, it said. Dismissing Fink’s claims for lack of personal jurisdiction “would be consistent with the decisions of other federal district courts that have dismissed similar actions against One Technologies,” it said.