26 at 5), the purpose of the incorporation-by-reference doctrine is to "prevent a plaintiff from evading dismissal under Rule 12(b)(6) simply by failing to attach to his complaint a document that proves his claim has no merit." Brownmark Films, LLC v. Although Plaintiffs ask the Court to ignore the Terms of Use instead accept their allegations "that they were never presented with any written disclosures, explanations, retention schedules or consent forms" (Doc. 2013) (considering websites which were "clearly 'central to the complaint and are referred to in it'"). Warner 1 The Complaint is attached as Exhibit 1 to the Notice of Removal. 2015) (in consumer fraud case, permitting defendant to refer to warning on website since plaintiff's allegations refer to the entire website and "information on web pages that chose not to highlight are fair game") Fortres Grand Corp. (finding defendant's website to be incorporated by reference at the motion to dismiss stage since plaintiff relies upon the site in its complaint) Pennington v. This doctrine also applies to websites relied upon by plaintiffs in their complaints. ¶ 23.) At the motion to dismiss stage, "the incorporation-by-reference doctrine provides that if a plaintiff mentions a document in his complaint, the defendant may then submit the document to the court without converting defendant's 12(b)(6) motion to a motion for summary judgment." Sonrai Systems, LLC v.
#Respondus inc full#
26 at 4.) This ignores that Plaintiffs themselves referenced and quoted from the Terms of Use in their Complaint, and cited to the website where the full Terms of Use were available. Plaintiffs first argue that "Respondus has not…made any showing that a binding contract was formed." (Doc. As such, Washington law applies to Plaintiffs' claims and BIPA does not apply.
The Washington choice-of-law provision does not violate an Illinois fundamental public policy and Illinois does not have a materially greater interest in this litigation. The Terms of Use for Respondus Monitor is a valid contract between Plaintiffs and Respondus and thus the Washington choice-of-law provision is enforceable. Plaintiff Cannot Pursue Claims Under BIPA, An Illinois Law, Because Washington Law Applies. Caterpillar Tractor Co., 485 N.E.2d 372 (Ill. Illinois Bell Telephone Co., 780 N.E.2d 335 (Ill. 5 In re Facebook Biometric Privacy Litigation, 185 F. Evanstan Fire Fighters Ass'n, et al., 545 N.E.2d 252 (Ill. Midas-International Corp., 361 N.E.2d 815 (Ill. The Dismissal Should Be With Prejudice.10 CONCLUSION. BIPA Does Not Apply to Respondus' Use of Photographs.9 D. Plaintiffs have alleged that Respondus complied with Section 15(b).9 C. Plaintiffs have alleged that Respondus complied with Section 15(a).8 3. The court can and should consider the documents Plaintiffs incorporated by reference in the Complaint.7 2. Plaintiffs Have Alleged That Respondus Complied With BIPA. The Washington choice-of-law provision is enforceable.2 B. The Terms of Use is a binding contract.1 2. Plaintiff Cannot Pursue Claims Under BIPA, An Illinois Law, Because Washington Law Applies.1 1. 1:21-cv-02620) v.)) RESPONDUS, INC.,)) Defendant.) DEFENDANT'S REPLY MEMORANDUM IN FURTHER SUPPORT OF ITS RULE 12(B)(6) MOTION TO DISMISS Case: 1:21-cv-02620 Document #: 33 Filed: 08/23/21 of 16 PageID #:310 TABLE OF CONTENTS Page ARGUMENT. Case: 1:21-cv-02620 Document #: 33 Filed: 08/23/21 of 16 PageID #:309 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION LUCIUS VEIGA, MICHAEL) STERCHELE, and ALEX PARKER) ZIMMERMAN, on behalf of themselves) and all others similarly situated,)) Plaintiff,) Case No.
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