"Confidential" Accusation Creates Substantial Controversy Sufficient to Exercise Subject Matter Jurisdiction

The magistrate judge recommended denying defendant's motion to dismiss plaintiff's declaratory relief action for lack of subject matter jurisdiction where plaintiff's suit was based upon an allegedly confidential email between defendant and a third party. "There is nothing inherently confidential about a statement accusing a third party’s product of patent infringement. [Defendant] should reasonably have anticipated -- and perhaps even intended -- that its claim of infringement by [plaintiff's] product would be communicated to [plaintiff]. . . . The communication was an affirmative act fairly traceable to [defendant]; the fact that the email was marked 'confidential' does not affect the justiciability analysis."

Google Inc. v. Traffic Information LLC, 3-09-cv-00642 (ORD February 2, 2010, Findings & Recommendation) (Hubel, M.J.)