Paul Tassin  |  February 1, 2017

Category: Consumer News

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Pokemon GO Game Map Showing Pokestops and a Pokemon GymIn separate motions for dismissal, defendants in a consolidated Pokémon Go class action lawsuit argue they can’t be held responsible for the behavior of Pokémon Go players who are not under their control.

Niantic, the software company that developed Pokémon Go, says it specifically forbids Pokémon Go players from trespass and nuisance.

The requirement is part of the terms of service that players must agree to before playing Pokémon Go, the company claims.

That terms of service provision proves Niantic had no intent to trespass, defeating the plaintiff’s trespass claims under the law of states like Michigan and Florida that require a showing of intent, Niantic argues.

Niantic also challenges what it refers to as a claim for “virtual trespass” – a claim that the company itself has committed trespass by positioning virtual “objects” within the plaintiffs’ private property without those plaintiffs’ authorization.

That claim fails because the law of trespass requires a physical intrusion onto property, Niantic argues. Merely using software to designate a specific location creates no such physical intrusion, the company says.

The company also challenges the plaintiffs’ nuisance claims. It argues that plaintiffs have failed to allege, and cannot prove, that Niantic was the proximate cause of the behavior of millions of Pokémon Go players.

Defendant The Pokémon Company brings its own motion to dismiss plaintiffs’ sole claim against it. Plaintiffs allege The Pokémon Company was unjustly enriched pursuant to a license agreement with Niantic.

But the company counters that the plaintiffs fail to accuse it of committing the allegedly unlawful acts at issue, attributing those actions to other defendants. The company further argues that unjust enrichment is not an independent cause of action under California law, leaving the plaintiffs without a claim to bring.

The Pokémon Company also brings a separate motion for dismissal, arguing that the Japan-based company is not subject to the California federal court’s jurisdiction.

Pokémon Go is a mobile device-based game. Players are required to move around the real world to “catch” Pokémon – virtual animated characters that are given a designated real-world location by the game app.

The game also designates locations for “Gyms,” where players can train their Pokémon, and “PokéStops,” where they can stock up on virtual game supplies.

Plaintiff Jeffrey Marder initiated his own Pokémon Go class action lawsuit in July 2016. Marder and other plaintiffs claim Niantic, Nintendo and The Pokémon Company violate their rights by designating locations for Pokémon, Gyms and PokéStops on private property.

They argue the game entices players to trespass and create a nuisance. Plaintiffs say the influx of Pokémon players led to a rash of noise, traffic, litter and illegal parking.

Marder has since been joined in this consolidated Pokémon Go class action lawsuit by plaintiffs Scott Dodich, Jayme Gotts-Dodich and The Villas of Positano Condominium Association Inc.

Plaintiffs’ counsel includes attorneys Jennifer Pafiti, Patrick V. Dahlstrom, J. Alexander Hood II, Aatif Iqbal, Jeremy A. Lieberman and Murielle J. Steven of Pomerantz LLP.

The Pokémon Go Class Action Lawsuit is In re: Pokémon Go Nuisance Litigation, Case No. 3:16-cv-04300, in the U.S. District Court for the Northern District of California.

UPDATE: On Feb. 14, 2019, the owners of Pokemon promise to discourage Pokemon Go users from trespassing, as part of a class action settlement.

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One thought on Pokémon Go Maker Seeks Dismissal of Trespass, Nuisance Class Action

  1. Jane says:

    Yes I am sick of Pokémon go trespassers

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