Apple asks judge to make iPhone lawsuit moot

Apple asks judge to dismiss lawsuit filed in August by woman who claims iPhone 3G dropped out and is slower than advertised.

Apple has asked a federal judge to dismiss a lawsuit brought by dissatisfied iPhone 3G owners because they did not ask the company to repair their iPhones or refund their money, according to court papers made public Friday.

In the motion, Apple's lawyers moved to dismiss the suit filed in August by an Alabama woman who said her iPhone 3G dropped calls, couldn't reliably connect to AT&T's network and was slower than advertised.

"The Defective iPhone 3G appeared to connect to the 3G standard and protocol less than 25 percent of the time," Jessica Smith's suit said. "Additionally, Plaintiff experienced an inordinate amount of dropped calls." Smith was later joined by another iPhone owner, Wilton Triggs, in the lawsuit, which has also sought class-action status.

iPhone users began complaining about making calls and keeping a connection within days of the smart phone's July 11 debut. Since then, Apple has released a pair of iPhone software updates, including one in September that seemed to solve network problems for some users.

On Friday, however, Apple said the lawsuit should be tossed out.

"Plaintiffs' Amended Complaint conspicuously omits one critical condition precedent to all three causes of action: an allegation that they contacted Apple to seek a repair of the alleged defects or a replacement iPhone 3G under Apple's One (1) Year Limited Warranty," Apple's attorneys argued.

By Alabama law, as well as the terms of Apple's warranty, consumers are required to ask for repair or a replacement, or a refund, before filing a lawsuit, Apple said. "Plaintiffs do not allege that they notified Apple of the alleged problems they experienced, or otherwise attempted to obtain a repair or replacement under warranty," the motion continued. "Instead, Plaintiffs allege that Apple is generally 'aware of the above-stated defects' and has 'attempted to undertake corrective action too late with little or no success'."

Apple's motion for dismissal cited sections of the Alabama Commercial Code, Apple's own warranty and other legal precedents in moving that the judge make Smith's lawsuit moot.

Two weeks after Smith sued Apple, a New Jersey man filed a separate lawsuit in federal court. Like Smith, Eulardi Tanseco said his iPhone dropped calls and wouldn't consistently connect with AT&T's network.

Apple has not filed a response to those charges.

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