<b><i>Online Extra</i></b><br> Pokéstop: Judge Calls Timeout in Suit Against Pokémon Go Maker

A federal judge has pressed pause on a group of lawsuits targeting the maker of augmented reality game Pokémon Go with nuisance and trespass claims for placing virtual landmarks on top of real property.

At a hearing on July 27, U.S. District Judge James Donato of the Northern District of California asked lawyers representing property owners in New Jersey, Michigan and Florida who sued app maker Niantic Inc. to lay out how their claims could possibly amount to more than $5 million, the threshold needed to invoke federal court jurisdiction.

“There's no dollar valuation whatsoever on the nuisance or trespass injuries,” Donato said. “There's nothing in there about how you get to $5 million.”

Lawyers from Pomerantz filed three successive lawsuits shortly after the wildly popular mobile game was released last summer, claiming Niantic induced players to trespass by placing virtual Pokéstops and Pokémon gyms on or near private property without sign-off from real-world, real estate owners. Plaintiffs claimed the players created a variety of nuisances, varying from unwanted knocks on the door to players congregating at all hours and relieving themselves on their property. Niantic's lawyers at Cooley have argued the company can't be held liable for players' actions and that the company requires users to abide by real-world laws to access the game.

At the hearing Pomerantz's Aatif Iqbal told Donato that Niantic generated more than $1 billion in revenues from the game since it launched last July, and the game relied on “having as large a game board as possible” to draw players in. Iqbal pointed out the plaintiffs are seeking an injunction that would force Niantic to change the locations of certain landmarks and characters in the game. That injunction would “easily” cost Niantic $5 million to comply, he said.

“I'm no game player, so help me out,” Donato said later to Iqbal's colleague, Murielle Steven Walsh. “When you say remove the Pokémon from the property, what do you mean?”

Walsh said that moving the location of items of characters in the game would involve adjusting the GPS coordinates where they are made to appear within the game on players' mobile devices. That, she said, would cost the company an amount that it would be difficult for plaintiffs to calculate without some discovery from Niantic.

Cooley's Michael Rhodes, however, countered it would be hard to place a value on an injunction as vague as the one outlined in the plaintiffs' complaints. “What exactly do they want us to do?” he asked.

Donato likewise asked the plaintiffs for clarification. The judge raised the issue of subject matter jurisdiction in an order prior to Thursday's hearing, so he asked the parties to file papers addressing that issue and placed other substantive issues on hold. Donato also allowed plaintiffs to file an amended complaint. Since Niantic filed its motion to dismiss, the plaintiffs have dropped their unjust enrichment claims and dismissed claims against The Pokémon Co. and Nintendo Co. Ltd, previously named as codefendants.

Additionally, Donato said that plaintiffs should specify what state laws they intend to invoke and should add name plaintiffs in states where they intend to pursue claims. “There's no national common law of trespass or nuisance,” Donato said. “You can't bank on sort of national nuisance or trespass law because there isn't one.”

***** Ross Todd is bureau chief of The Recorder in San Francisco, an ALM sibling of Internet Law & Strategy. He writes about litigation in the Bay Area and around California. Contact Ross at [email protected]. On Twitter: @Ross_Todd.