Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 1 of 12 1 2 3 4 5 6 7 8 9 10 11 COOLEY LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) JEFFREY M. GUTKIN (216083) (jgutkin@cooley.com) BENJAMIN H. KLEINE (257225) (bkleine@cooley.com) BETHANY C. LOBO (248109) (blobo@cooley.com) KRISTINE A. FORDERER (278745) (kforderer@cooley.com) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 Attorneys for Defendant NIANTIC, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 12 13 14 15 16 17 18 In Re Pokémon Go Nuisance Litigation Case No. 3:16-cv-04300 JD DEFENDANT NIANTIC, INC.’S REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CONSOLIDATED CLASS ACTION COMPLAINT Date: May 4, 2017 Time: 10:00 a.m. Courtroom: 11, 19th Floor Judge: Honorable James Donato Trial Date: Not Yet Set 19 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 2 of 12 1 I. INTRODUCTION 2 Plaintiffs claim that Niantic, Pokémon GO’s developer, is liable for trespass and nuisance 3 because its players allegedly entered private property and disturbed owners despite Niantic’s 4 requirement that they not do so. Niantic’s Motion to Dismiss showed that the operative Complaint 5 (“CAC,” Dkt. 48) (1) does not state a trespass claim because Niantic neither placed tangible objects 6 on private property nor intended for players to trespass; and (2) does not state a nuisance claim because 7 Niantic did not control its players and thus did not proximately cause the alleged nuisance. 8 Plaintiffs provide only sparse legal arguments that rebut none of Niantic’s points, and they 9 instead spend nearly half their brief trying to bolster their legally deficient claims by reciting factual 10 allegations (some of which are not found in the CAC or are demonstrably false1). They argue that 11 they allege trespass by claiming that virtual Pokémon, PokéStops, and Gyms (collectively, “Game 12 Items”) appear on players’ phones while on or near Plaintiffs’ properties—but they cite no authority 13 holding that trespass can arise from a virtual rather than tangible object. They also argue that they 14 allege trespass by stating Niantic “encouraged” players to trespass in promotional materials that told 15 them to “find” Pokémon and “step outside, and explore the world.” This is absurd: telling players to 16 play outside does not encourage trespass, and Niantic required players to agree not to trespass. 17 Finally, Plaintiffs argue that they state a nuisance claim by alleging that Niantic’s placement 18 of virtual Game Items proximately caused the alleged nuisance. But their thinly-supported argument 19 cites cases that do not bear on whether Niantic is liable for the alleged third party-created nuisance. 20 They cannot state a nuisance claim because, as Niantic’s Pokémon GO Terms of Service (“Terms”) 21 and Trainer Guidelines show, Niantic did not condone or encourage the alleged player misconduct. 22 And Plaintiff Jeffrey Marder—who alleges only that five players knocked on his door in July 2016— 23 plainly fails to allege the “significant harm” required to maintain his nuisance claim. 24 The CAC should be dismissed with prejudice. 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 1 For instance, in addition to examples discussed below, the CAC does not allege the existence of “nocturnal” Pokémon that spawn primarily at night (see Pls’ Opp’n to Niantic’s Mot. to Dismiss, Dkt. 66 (“Opposition” or “Opp’n”) at 2), and no such Pokémon exist, which Plaintiffs’ inquiry should have shown and which Niantic will demonstrate if this case proceeds past the pleading stage. 1. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 3 of 12 1 II. PLAINTIFFS’ UNJUST ENRICHMENT CLAIM SHOULD BE DISMISSED WITH PREJUDICE. 2 Plaintiffs purport to “voluntarily dismiss” their unjust enrichment claim. (Opp’n at 1 n.1.) 3 This claim should be dismissed with prejudice, as Plaintiffs fail to respond to Niantic’s arguments. 4 Homsy v. Bank of Am., N.A., No. 13-1608, 2013 WL 2422781, at *5 (N.D. Cal. June 3, 2013) 5 (dismissing claim not addressed in opposition to motion to dismiss with prejudice); Cheung v. PNC 6 Mortg., No. 14-3670, 2015 WL 831206, at *2 (N.D. Cal. Feb. 23, 2015) (same). 7 III. PLAINTIFFS FAIL TO STATE A CLAIM FOR TRESPASS. 8 A. 9 Niantic showed that Plaintiffs’ “virtual trespass” theory—that Niantic trespassed by allegedly 10 placing virtual Game Items on or near their properties—fails under applicable law because trespass 11 requires an unauthorized entry of a tangible object onto property.2 (Mot. at 6-8.) Plaintiffs instead 12 urge the Court to make new law, arguing that “landowners should have a right to refuse the placement 13 of virtual objects on their property” if those objects “create any kind of incentive . . . to be in their 14 physical proximity.” 15 (“Restatement”) § 158, comment i, which merely affirms Niantic’s understanding of the law that a 16 defendant can trespass by causing tangible objects—such as projectiles or a balloon—to enter a 17 plaintiff’s land or its air. This does not support Plaintiffs’ theory that property owners should be able 18 to prevent app developers from displaying on-screen virtual objects on the devices of third parties, at 19 virtual locations corresponding to being near the property owners’ properties. If accepted, it would 20 threaten numerous online services. For instance, creators of apps that display on-screen markers (e.g., 21 a walking tour app that flags landmarks or an app that permits users to “check-in” virtually to a location 22 to connect with friends) could be liable for trespass. There is no legal support for, and no need for, 23 the expansion of the law Plaintiffs advocate, so the Court should reject their theory.3 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO Plaintiffs’ “virtual trespass” theory fails for lack of a tangible entry. (See Opp’n at 15.) Plaintiffs cite only Restatement (Second) of Torts 2 Niantic showed that the laws of Plaintiffs’ states govern, under controlling California choice-of-law rules. (Niantic’s Mot. to Dismiss, Dkt. 62 (“Motion” or “Mot.”) at 5-6.) Plaintiffs’ election not to respond concedes this issue. See, e.g., Robertson v. Cty. of Alameda, No. 15-3416, 2015 WL 6506966, at *2 (N.D. Cal. Oct. 28, 2015) (failure to respond to defendant’s argument in motion to dismiss concedes issue); Ardente, Inc. v. Shanley, No. 07-4479, 2010 WL 546485, at *6 (N.D. Cal. Feb. 10, 2010) (same). Indeed, Plaintiffs cite the laws of their individual states. (Opp’n at 8-14.) 3 Plaintiffs also assert without citation that placement of virtual objects may subject property owners 2. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 4 of 12 1 B. 2 Niantic showed that Plaintiffs’ “induced trespass” theory—that Niantic trespassed by causing 3 players to enter their properties to pursue Game Items—fails: (1) they do not allege that Niantic 4 intentionally caused players to trespass, as needed for intentional trespass; and (2) Marder, the only 5 Plaintiff whose state recognizes negligent trespass, fails to allege the required harm. (Mot. at 8-11.) Plaintiffs’ “induced trespass” theory fails. 6 All three of Plaintiffs’ states rely to varying degrees on Restatement § 158, which states that 7 defendants commit trespass if they intentionally cause a “thing or a third person” to enter another’s 8 land. (Mot. at 8; see also Opp’n at 14.) Niantic’s motion showed that to state a claim under this 9 standard, Plaintiffs must allege that Niantic knew to a “substantial certainty” that players would 10 trespass. (Mot. at 9 (citing Dietz v. Ill. Bell Tel. Co., 507 N.E.2d 24, 25-28 (Ill. Ct. App. 1987).) 11 Plaintiffs contend that they state a claim under this standard because Niantic “encouraged” 12 and “suggested” that players trespass by making Game Items accessible from certain private 13 properties, while stating in promotional materials that “Pokémon are out there, and you need to find 14 them,” and “[D]iscover and capture the Pokémon all around you . . . get your shoes on, step outside, 15 and explore the world[.]”4 (Opp’n at 14 (emphasis omitted).) But Niantic explained that Game Items’ 16 accessibility from private property does not show that it knew with “substantial certainty” that players 17 would trespass; those Game Items are intended for the benefit of those properties’ residents and invited 18 visitors. (Mot. at 9.) Plaintiffs offer no response. And Niantic’s promotional statements only 19 encourage players to find Pokémon outside, not to trespass. (See CAC ¶¶ 25, 27 (describing Pokémon 20 available in myriad public locations including public parks and near lakes and oceans).) 21 Moreover, fatal to Plaintiffs’ assertions are Niantic’s Terms and Trainer Guidelines, which 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO to attractive nuisance liability. (Opp’n at 16.) An attractive nuisance is an “artificial condition upon the land” that both poses an “unreasonable risk of death or serious bodily harm” to child trespassers and in fact harms such children. See Restatement § 339. This concept is irrelevant here, as (1) Plaintiffs do not allege an attractive nuisance; (2) the CAC alleges no conditions (let alone Nianticcreated conditions) posing an unreasonable risk of death or serious bodily harm to children, or any actual harm to children; and (3) virtual Game Items are not a “condition upon the land.” 4 For the reasons discussed here, Plaintiffs do not state an intentional trespass claim under the standard that some Michigan courts apply, which requires pleading that Niantic encouraged, advised, or suggested trespass. See Helsel v. Morcom, 555 N.W.2d 852, 856 (Mich. Ct. App. 1996). 3. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 5 of 12 1 expressly require players, before first playing, to agree not to trespass or violate other laws.5 (See 2 Niantic’s Req. for Judicial Notice, Dkt. 63 (“RJN”) at 6-8.) Courts in analogous cases hold defendants 3 not liable for intentional trespass where they instructed the tortfeasors not to trespass. For instance, 4 Dietz dismissed a trespass claim for failure to allege “intentional” conduct, holding that the defendant 5 lacked “substantial certainty” that licensing its telephone poles located on plaintiff’s property would 6 result in trespass where it required the licensee to obtain plaintiff’s authorization to enter. 507 N.E.2d 7 at 24-28. Plaintiffs here argue that the Dietz defendant did not encourage the licensee’s trespass and 8 that plaintiff did not allege that trespass would “naturally flow” from the defendant’s actions. (Opp’n 9 at 14-15.) But those factors are at least as true here: (1) Niantic plainly did not encourage players to 10 trespass; indeed, it forbade this; and (2) Plaintiffs’ argument that trespass naturally flowed from 11 Niantic’s alleged placement of Game Items on private property is unsupportable given Niantic’s 12 prohibition on trespass and the many public locations from which players can access Game Items. 13 (See, e.g., CAC ¶¶ 25, 27, 34.) Indeed, the facts here compare favorably to Dietz, where the only way 14 the licensee could use the licensed telephone poles was to intrude on private property. See 507 N.E.2d 15 at 24-25. 16 Other decisions under Restatement § 158 are in accord. See, e.g., Duer v. Henderson, No. 17 2009 CA 15, 2009 WL 4985475, at *1, *6-7 (Ohio Ct. App. Dec. 23, 2009) (rejecting trespass claim 18 based on guidebook’s mention of a farm that allegedly caused visitors to trespass on the farm, where 19 guidebook contained disclaimer that locations on private property should not be visited); City of 20 Bloomington v. Westinghouse Elec. Corp., 891 F.2d 611, 615 (7th Cir. 1989) (dismissing trespass 21 claim against company who sold chemicals to customer who improperly dumped them; company 22 lacked “trespassory intent” where its contracts and instructions required proper disposal); cf. Strogoff 23 5 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO Plaintiffs contend that the Terms’ and Trainer Guidelines’ trespass prohibitions do not defeat their claims, citing an inapposite case—which rejected criminal statutory liability for violation of a private computer use policy—for its dicta that many people do not read such use policies. (Opp’n at 15 (citing United States v. Nosal, 676 F.3d 854, 861 (9th Cir. 2012).) Plaintiffs also insinuate that Niantic may have included provisions in its terms with which it did not want users to comply. (Id.) Here, Niantic’s plain-English Terms and Trainer Guidelines prominently prohibit players from trespassing or otherwise breaking the law. (See Mot. at 3-4.) Thus, Plaintiffs do not (and cannot) plead that Niantic intended for users to trespass. And they lack any basis for their unpled insinuation that Niantic wanted users to violate the Terms and Trainer Guidelines. 4. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 6 of 12 1 v. Motor Sales Co., 18 N.E.2d 1016, 1017 (Mass. 1939) (defendant loaning car to an alleged trespasser 2 would not be liable if it had “expressly forbidden” the third party from trespassing). 3 4 Since Plaintiffs fail to allege that Niantic knew with substantial certainty that players would trespass, they cannot maintain a claim for intentional trespass.6 5 C. 6 In addition to intentional trespass, New Jersey recognizes claims for negligent trespass that 7 cause cognizable harm. Ross v. Lowitz, 120 A.3d 178, 188 (N.J. 2015) (adopting Restatement 8 § 165). Niantic showed that Marder’s meager allegations that five players knocked on his door to 9 request access to his backyard—uncoupled with any allegations of property damage or other harm— 10 do not satisfy this. (Mot. at 10-11.) While Marder presents harm arguments as to nuisance, he fails 11 to respond to, and thus concedes, this trespass argument. (See Opp’n at 11-15; n.2, supra.) 12 IV. Marder concedes that he did not suffer cognizable harm. PLAINTIFFS FAIL TO STATE A NUISANCE CLAIM. 13 A. 14 Niantic showed that Marder’s nuisance claim must be dismissed because he has not alleged 15 significant harm. (Mot. at 12-13.) Marder contends that he need not allege significant harm and 16 argues he adequately alleges harm. (Opp’n at 11-14.) Both of Marder’s arguments fail. Marder’s nuisance claim fails because he has not alleged significant harm. 17 First, Marder argues that he need not allege “significant harm” to state a New Jersey nuisance 18 claim, inconsistently arguing that (1) there is “no explicit definition” of the harm needed to state such 19 a claim; and (2) the necessary harm is a “quantum of harm to the plaintiff” that is not outweighed by 20 “[t]he utility of the defendant’s conduct,” citing Sans v. Ramsey Golf & Country Club, Inc., 149 A.2d 21 599, 605 (N.J. 1959). (Opp’n at 11-12.) 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO Marder is incorrect that “no explicit definition” of the required harm exists. (Id. at 11.) New 6 Plaintiffs also assert, without citation, that they state a trespass claim against Niantic because after they complained, Niantic allegedly failed to respond and continued to receive game revenue. (Opp’n at 15.) Their argument fails under caselaw applying Restatement § 158. See, e.g., Dietz, 507 N.E.2d at 27-28 (dismissing trespass claim even where defendant continued to accept fees from tortfeasor after learning of trespass, as that did not show intent to trespass); see also Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Practical Knowledge, 102 A.3d 501, 505, 508-14 (Pa. Super. Ct. 2014) (trespass claim based on defendant’s demonstrations failed for lack of intentionality even where defendant was aware that third-party observers were trespassing to view the demonstrations, and multiple complaints were lodged). 5. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 7 of 12 1 Jersey courts today analyze nuisance claims under the Restatement, under which a defendant is liable 2 if (1) their conduct is a legal cause of (2) an invasion of the plaintiff’s interest in the private use and 3 enjoyment of their land (3) that causes the plaintiff “significant harm” (4) the gravity of which 4 outweighs the utility of the defendant’s conduct (commonly referred to as the “unreasonableness” 5 test). See Ross, 120 A.3d at 185; Restatement §§ 821F, 822, 826; Boteach v. Libya, 759 F. Supp. 2d 6 548, 552 (D.N.J. 2010). Under the Restatement, “significant harm” is “harm of importance, involving 7 more than slight inconvenience or petty annoyance,” and brief property invasions causing incidental 8 harm are not nuisance. Restatement § 821D, cmt. e; § 821F, cmt. c. 9 Marder’s proposed formulation of the harm requirement is also incorrect: Sans is not only a 10 pre-Ross case (and thus superseded to the extent inconsistent), but it also does not even apply the 11 Restatement.7 (Opp’n at 12.) Sans states that nuisance requires “balancing” the “conflicting interests” 12 by weighing the “utility of the defendant’s conduct” against the plaintiff’s “quantum of harm.” 149 13 A.2d at 605. That balancing is irrelevant to the “significant harm” element under the Restatement, 14 which requires Marder to plead two “distinct” elements: (1) the plaintiff suffered significant harm; 15 and separately (2) the gravity of the plaintiff’s harm outweighs the social utility of the defendant’s 16 conduct (i.e., the harm is “unreasonable”).8 See San Diego Gas & Elec. Co. v. Super. Ct., 920 P.2d 17 669, 696 (Cal. 1996); In re Paulsboro Derailment Cases, No. 12-7468, 2015 WL 4914397, at *10 18 (D.N.J. Aug. 18, 2015) (similar). Because Marder does not allege significant harm, the Court should 19 dismiss his claim irrespective of Sans, which addresses an analog to the unreasonableness test. (See 20 Mot. at 12-13); San Diego Gas & Elec., 920 P.2d at 696-97. 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 7 Marder also briefly seeks application of the “material annoyance, inconvenience, or hurt” standard in State v. Exxon Corp., 376 A.2d 1339, 1349 (N.J. Super. Ct. 1977). (Opp’n at 11.) Exxon, a preRoss public nuisance case, did not apply the Restatement or evaluate whether the plaintiff showed harm. 376 A.2d at 1349-50. And Marder’s claim would fail even if Exxon’s “material annoyance, inconvenience or hurt” standard applied (it does not), see id. at 1349 (emphasis added); he has not alleged a material harm just as he has not alleged a significant one. (See Mot. at 12-13.) 8 Marder mistakenly criticizes Niantic’s citation of the Restatement’s “significant harm” element as a “suggestion that certain categories of injury are per se [in]actionable,” arguing that “[t]here are countless ways to interfere with the use and enjoyment of land[.]” (Opp’n at 12.) He misses the point: while a defendant may commit the interference through various means, the interference must cause significant harm to create a nuisance. Brief invasions causing (at most) incidental harm, such as those he has alleged, do not suffice. See Restatement §§ 821D, cmt. e, 821F. 6. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 8 of 12 1 Marder unpersuasively tries to distinguish cases in Niantic’s Motion that rejected nuisance 2 claims for failure to show significant harm as cases that used the “appropriate balancing test.” (Opp’n 3 at 13.) But, as those cases show, balancing applies to the unreasonableness test, not to “significant 4 harm.” For instance, Ocean Club Condominium Association v. D’Amato applied an analog to the 5 Restatement principle that petty annoyances are not “significant harm” (Restatement 6 § 821F, cmt. c) to reject a noise-based nuisance claim because the noise was a “mere annoyance”—a 7 holding that did not involve any balancing inquiry. No. A-0175-04T3, 2006 WL 2335073, at *4 (N.J. 8 Super. Ct. App. Div. Aug. 14, 2006). The court later engaged in a balancing test to reach the separate 9 holding that plaintiffs’ nuisance claim failed as they did not show unreasonable harm.9 Id. 10 Thus, Marder must plead “significant harm” to state a nuisance claim, but failed to do so. 11 Second, Marder argues that he adequately pleads harm by alleging that Niantic caused him 12 “continuous” harm—specifically, the “continuing threat of a flow of trespass and nuisance, which can 13 happen at any time and with variable frequency.” (Opp’n at 12-13) (citing Sans, 149 A.2d at 605; 14 Jones v. Trawick, 75 So. 2d 785, 788 (Fla. 1954).) But Marder’s cases do not hold that a “continuing 15 threat” of harm satisfies the significant harm standard. Sans found a nuisance where an “endless 16 stream of golfers” invaded the plaintiff’s property from “6 A.M . . . until twilight” for several years. 17 149 A.2d at 602. Jones likewise found nuisance where a defendant’s proposed cemetery would serve 18 as a “constant reminder of death” to nearby residents and the regular funerals expected to take place 19 would have a depressing effect. 75 So. 2d at 786, 788. Neither case expressly addressed the significant 20 harm requirement or found a continuing threat of harm. 21 Even if an allegedly continuing threat of harm would satisfy the significant harm standard, 22 Marder does not allege anything like a plausible, continuing threat. He alleges only that five players 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 9 As for Niantic’s other cases, Hrycenko v. Board of Adjustment rejected a nuisance claim based on “noise, fumes, and glare” which did not “exceed the bounds” which residents must accept. 99 A.2d 430, 433 (N.J. Super. Ct. App. Div. 1953). This holding fits within the Restatement rule that harm is not significant unless normal community members would regard it as “definitely offensive, seriously annoying or intolerable.” Restatement § 821F, cmt. d. Boteach, 759 F. Supp. 2d at 552, Sofka v. Thal, 662 S.W.2d 502, 508-09 (Mo. 1983), and Mourad v. Marathon Petroleum Co., LP, 129 F. Supp. 3d 517, 527 (E.D. Mich. 2015), all required plaintiffs to plead significant harm, without applying a balancing test. And Marder fails to address Sofka, 662 S.W.2d at 508-09, which dismissed a nuisance claim based on frequent daytime calls for failure to allege significant harm. 7. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 9 of 12 1 knocked on his door in July 2016, without any description of how they harmed him. (Mot. at 12-13.) 2 Indeed, in the CAC—filed in late November 2016 (see Dkt. 46)—Marder alleges no interactions with 3 players after the five knocks on his door in July 2016. His continuing threat argument is irrelevant, 4 given that he does not even attempt to claim that he experienced conduct amounting to nuisance in the 5 four months before the CAC’s filing. (See Mot. at 5 (collecting cases).) The Court should dismiss his 6 nuisance claim for failure to allege significant harm. 7 B. 8 Niantic showed that Plaintiffs do not allege that Niantic was the “legal” (i.e., proximate) cause 9 of the alleged nuisance because it cannot control players’ real-world movements and it requires players 10 to promise not to trespass or violate other laws. (Mot. at 13-14.) Plaintiffs reply that they allege legal 11 cause because (1) Niantic participated to a substantial extent in the alleged nuisance by placing Game 12 Items on or near their properties and encouraging players to catch the most Pokémon possible; (2) 13 players were not an intervening cause of the nuisance; and (3) Niantic could have abated the nuisance 14 by moving the Game Items. (Opp’n at 9-10.) Each argument fails. Plaintiffs’ nuisance claims fail because they have not alleged legal cause. 15 Plaintiffs admit that Restatement § 834 governs, under which only actors who participate to a 16 “substantial extent” in creating a nuisance are liable.10 Under Restatement § 834, a company is not 17 liable for a nuisance created by parties beyond its control who misuse its products—if (for instance) 18 the company (1) did not “endorse[] or condone[]” the disputed conduct, Camden Cty. Bd. v. Beretta 19 U.S.A. Corp., 123 F. Supp. 2d 245, 267 (D.N.J. 2000) (public nuisance case),11 or (2) instructed the 20 tortfeasor not to commit the nuisance, Westinghouse, 891 F.2d at 613-14. Under these cases, Plaintiffs 21 have not stated a nuisance claim: Niantic did not encourage or condone players’ trespasses and indeed 22 required them not to violate laws protecting private property. (See Mot. at 13-14.) 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 10 New Jersey and Michigan follow the Restatement’s nuisance standard (Mot. at 13-14), but Florida appears not to have addressed whether it will do the same. But since Florida mirrors New Jersey and Michigan in including a proximate cause element for nuisance claims (see id. at 15), it should also be understood to limit liability to actors who participated to a substantial extent in the nuisance. 11 Niantic cited Camden (Mot. at 13), not Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 1062 (N.Y. 2001), as Plaintiffs claim. (Opp’n at 11.) Hamilton held that defendant gun manufacturers were not liable for negligence because they had no duty to prevent harms caused by gun purchasers, but did not discuss nuisance or proximate cause. 750 N.E.2d at 1058, 1061-62. It is thus inapposite. 8. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 10 of 12 1 Plaintiffs’ contrary arguments are unavailing. First, Plaintiffs argue that Niantic participated 2 to a substantial extent in the alleged nuisance under Radloff v. State, 323 N.W.2d 541 (Mich. Ct. App. 3 1982), Page Cty. Appliance Ctr. v. Honeywell, Inc., 347 N.W.2d 171 (Iowa 1984), and Exxon, 376 4 A.2d at 1349. (Opp’n at 9-11.) These cases are readily distinguishable. 5 Plaintiffs incorrectly argue that they state a nuisance claim under Radloff because Niantic 6 “brought about the [nuisance].” (Opp’n at 9.) But Radloff was a non-Restatement premises liability 7 case, see 323 N.W.2d at 542-43, and recent decisions hold that such premises liability cases (where a 8 plaintiff sues over conditions on another’s land) are distinct from private nuisance cases, which 9 address interference with the plaintiff’s land. See, e.g., Detrick v. Heidtman Steel, No. 13-14977, 2015 10 WL 12683815, at *4 (E.D. Mich. Nov. 30, 2015) (rejecting premises liability plaintiff’s private 11 nuisance claim); Carlton v. D’Alesandro, No. 183942, 1997 WL 33353437, at *3-4 (Mich. Ct. App. 12 Mar. 4, 1997) (same). Thus, Radloff, which involved injuries suffered when the plaintiff dove into a 13 water-filled gravel pit on the defendant’s property, 323 N.W.2d at 542-43, is irrelevant as it did not 14 find private nuisance liability or address Restatement § 834’s substantial participation standard.12 15 Plaintiffs also contend that Niantic’s argument that it is not liable for alleged player-created 16 nuisance is inconsistent with Page. (Opp’n at 10.) But Page did not address liability for third party- 17 created nuisance, holding only that a defendant computer manufacturer was liable for nuisance where 18 it designed, sold, and had an ongoing contract to service, a radiation-emitting computer. 347 N.W.2d 19 at 174, 177. And while Plaintiffs are correct that Exxon, a non-Restatement case, noted that a nuisance 20 creator “remains liable even after alienating his property” (Opp’n at 10-11 (citing 376 A.2d at 1349)), 21 Exxon held the defendant was not liable for nuisance based on third party pollution that it could not 22 control, which supports dismissal here. See 376 A.2d at 1349. 23 Second, Plaintiffs incorrectly assert that Niantic’s argument that they do not sufficiently allege 24 substantial participation can be “boil[ed] down” to the assertion that “players’ intervening acts sever 25 the chain of causation.” (Opp’n at 11.) This misstates the substantial participation rule, which holds 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 12 Radloff is also inapposite because that defendant contractually authorized a third party to create the alleged nuisance (a gravel pit) at issue, 323 N.W.2d at 543, whereas Niantic contractually requires its players not to trespass or violate other laws. (See Mot. at 3-4.) 9. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 11 of 12 1 that “to be a legal cause of harm, a person’s conduct must be a substantial factor in bringing it about.” 2 Restatement § 834, cmt. d. This rule is distinct from superseding cause—the latter defeats the 3 defendant’s tort liability regardless of whether its conduct was a substantial factor in the harm. See, 4 e.g., Flint v. Langer, 762 F. Supp. 2d 735, 740 (D.N.J. 2011); Restatement § 834, cmt. f (where third 5 party contributes to nuisance, plaintiff must show defendant’s substantial participation and that third 6 party is not superseding cause). Thus, Plaintiffs’ failure to allege Niantic’s substantial participation 7 mandates dismissal, whether or not players’ conduct is a superseding cause.13 8 Third, Plaintiffs contend that Niantic failed to abate the nuisance. (Opp’n at 10.) But a duty 9 to abate arises only if a plaintiff proves nuisance; a failure to abate cannot create a nuisance claim. 10 See Ross, 120 A.3d at 187 (defendant only has duty to abate actionable nuisance under Restatement). 11 Thus, Camden dismissed a public nuisance claim alleging that defendant handgun manufacturers 12 “fail[ed] to adopt even minimal practices” to reduce the criminal handgun market; as they did not 13 participate to a substantial extent in the nuisance, they had no duty to prevent it. 123 F. Supp. 2d at 14 251, 267. And Westinghouse dismissed a nuisance claim based on the defendant’s yearslong toxic 15 chemical sales, though the defendant could have abated the nuisance by discontinuing sales earlier.14 16 891 F.2d at 613-15. As a company need not alter a product to avoid nuisance liability due to third 17 party misuse, Niantic’s supposed abatement ability does not show that the CAC states a claim. 18 V. 19 CONCLUSION The CAC should be dismissed with prejudice, as leave to amend is futile. (Mot. at 18.) 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 13 But players’ intervening conduct is also a superseding cause requiring dismissal. Plaintiffs’ argument that players’ intervening acts do not break the causational chain because Niantic should have foreseen Plaintiffs’ injuries (Opp’n at 11) is incorrect. A third party’s use of a company’s service as prohibited by the terms of service is not foreseeable, defeating liability here. Thus, in Walsh v. TelTech Systems, a third party hid their identity via the defendant’s service while making illegal calls, which was a not “altogether unusual” use of the service. 821 F.3d 155, 158-59, 163-64 (1st Cir. 2016). Yet the court rejected the plaintiff’s argument that the illegal calls were “reasonably foreseeable,” since the defendant’s terms barred unlawful use of its service. Id. at 163. 14 Plaintiffs cite Bubalo v. Navegar, Inc., which opined that the Westinghouse defendant could have been liable for nuisance if it did not tell customers of the chemicals’ risks or marketed chemicals to specific customers it knew would misuse them. (Opp’n at 10 n.5 (citing No. 96-3664, 1998 WL 142359 (N.D. Ill. Mar. 20, 1998)).) Bubalo is inapposite: Niantic told players not to violate the law (Mot. at 3-4), and Plaintiffs do not allege that it marketed the game to players it knew would do so. 10. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD Case 3:16-cv-04300-JD Document 70 Filed 03/23/17 Page 12 of 12 1 Dated: March 23, 2017 COOLEY LLP 2 3 /s/ Jeffrey M. Gutkin Jeffrey M. Gutkin 4 5 Attorneys for Defendant NIANTIC, INC. 6 7 142754621 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 11. DEFENDANT NIANTIC, INC.’S REPLY ISO MOTION TO DISMISS CASE NO. 3:16-CV-04300-JD