Free Brief - District Court of California - California

Case 3:07-cv-05115-JSW

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1 GUTRIDE SAFIER REESE LLP Adam J. Gutride (Cal. State Bar No.181466) 2 Seth A. Safier (Cal. State Bar No. 197427) 835 Douglass Street 3 San Francisco, California 94114 Telephone: (415) 271-6469 4 Facsimile: (415) 449-6469 5 Counsel for Plaintiff 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07-5115 JSW PLAINTIFF'S OPPOSITION TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE JUDGE: Hon. Jeffery S. White DATE: Jan. 25, 2008 TIME: 9:00 am CTRM: 2

11 DOE, Individually And On Behalf Of All Others Similarly Situated, 12 Plaintiff, 13 vs. 14 NETWORK SOLUTIONS, LLC Defendant. 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PLAINTIFF'S OPPOSITION TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE- CASE NO. C 07-5115 JSW

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Plaintiff respectfully submits this Opposition to Defendant's Request for Judicial Notice

2 (Dkt.# 20). 3 I. INTRODUCTION 4 Defendant requests that this Court judicially notice eighteen different documents. These

5 documents include five versions of a service agreement, three versions of a privacy policy, a 6 definition from the American Heritage Dictionary and nine cases from jurisdictions around the 7 country. All of these purported facts, with the exception of the definition, are not properly 8 noticed by this Court. Defendant's request should be denied. 9 II. ARGUMENT 10 In this instance, Defendant requests that this Court take judicial notice of five service

11 agreements, three privacy policies, a definition of "search engine" from the American Heritage 12 Dictionary, and nine court cases from around the nation. Plaintiff objects to this Court taking 13 judicial notice of any of the proffered service agreements, privacy policies or court cases. 14 A judicially noticed fact must be one not subject to reasonable dispute in that it is either

15 "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate 16 and ready determination by resort to sources whose accuracy cannot reasonably be questioned." 17 Fed. R. Evid. 201(b). 18 19 A. The Service Agreements Are Not Admissible On A Motion to Dismiss. Defendant argues that this Court may consider the service agreement, because it is

20 alleged, relied on and quoted in the Complaint. (Mot. 8:2-8.) Defendant's premise is false. Not 21 only does the Complaint not cite to or rely on the service agreement, but there is a serious 22 dispute as to what version(s) of that agreement would apply to Plaintiff and what portion(s) of 23 that agreement (if any) are enforceable. At best, according to Defendant, the service agreement 24 was merely "made available" to Plaintiff if he clicked on a hyperlink, and he "agreed" to it only 25 by checking a box. In these circumstances, none of the cases cited by Defendant support its 26 argument. 27 The service agreement is not once mentioned, let alone quoted or relied upon, in the

28 Complaint. The only "agreement" referenced in the Complaint is Defendant's privacy policy,

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1 which is a separate document. (Compare Request for Judicial Notice Exhibits 1-5 (service 2 agreements) with Id. Exhibits 6-8 (privacy policies).) Furthermore, Plaintiff disputes the 3 authenticity of the service agreements. Defendant submits five versions of the agreement, each 4 of which is approximately 50 pages long, even when printed out single-spaced in 8 point type. 5 There is no evidence that the text of any version of the agreement was ever actually displayed to 6 Plaintiff, nor that any effort was made to highlight to him the alleged waivers of his rights, 7 before he purportedly "agreed" to them. 8 A document may not be judicially noticed unless it is referred to "extensively" or the

9 document forms the basis of the plaintiff's claim. See United States v. Ritchie, 342 F.3d 903, 10 908 (9th Cir. 2003); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994); Venture Assoc. 11 Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993). For example, when a 12 plaintiff's claim about insurance coverage is based on the contents of a coverage plan, the 13 coverage plan is admissible, Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1986), or when 14 a plaintiff's claim about stock fraud is based on the contents of SEC filings, those filings are 15 admissible. See In re Silicon Graphics Secs. Litig., 183 F.3d 970, 986 (9th Cir. 1999). 16 The cases cited by Defendant, which misapplies this standard, are inapposite. In Branch

17 v. Tunnell, for example, the lower court considered a deposition transcript that was specifically 18 referenced in, but not attached to, the complaint. See id. at 453-54. Neither party objected to the 19 authenticity of the document. On that basis, the Ninth Circuit determined that it was properly 20 considered. The court explained that "a document is not `outside' the complaint if the complaint 21 specifically refers to the document and if its authenticity is not questioned." Id. at 454 citing 22 Townsend v. Columbia Operations, 667 F.2d 844, 848-49 (9th Cir. 1982) (emphasis supplied). 23 Likewise, in Parrino, 146 F.3d at 706, the court held that a plaintiff could not survive a Rule 24 12(b)(6) motion by deliberately omitting references to documents upon which their claims are 25 based. Id. The Ninth Circuit affirmed, explaining that a district court ruling on a motion to 26 dismiss may consider a document the authenticity of which is not contested, and upon which the 27 plaintiff's complaint necessarily relies. Id. (emphasis supplied.) The court further explained 28 this holding by stating that "where...an attached document is integral to the plaintiff's claims and

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1 its authenticity is not disputed, the plaintiff obviously is on notice of the contents of the 2 document and the need for a chance to refute evidence is greatly diminished." Id. at 706, n.4 3 citing Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196-97 (3d Cir. 4 1993); see also Anderson v. Clow (In re Stac Elecs. Sec. Litig.), 89 F.3d 1399, 1411 (9th Cir. 5 1996) (admitting full text of a prospectus was filed with SEC whose "contents [were] alleged in a 6 complaint and whose authenticity no party question[ed]").1 7 Here, Defendant asks this Court to consider an agreement that (1) is not specifically

8 mentioned in the Complaint, (2) the authenticity of which is vigorously contested, and (3) as to 9 which Plaintiff is neither on notice of the contents nor given a chance to refute the "evidence" 10 that the contract was consummated. Each of the cases cited by Defendant, including Parrino, 11 strongly supports denying Defendant's request to consider any of the multitude service 12 agreements. 13 14 B. The Court Cases Contain No Judicially Noticeable "Facts." Documents that are part of the public record may be judicially noticed to show, for

15 example, that a judicial proceeding occurred or that a document was filed in another court case. 16 But a court may not take judicial notice of findings of facts from another case, or use such 17 findings against Plaintiff, who was not a party to that case. See Wyatt v. Terhune, 315 F.3d 1108, 18 1114 & n. 5 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); 19 Jones, 29 F.3d at 1553. Nor may the court take judicial notice of any matter in dispute. Lee, 250 20 F.3d at 689-90; Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir. 2001). 21 At best these cases may be offered as precedents, not judicially noticeable "facts." Their

22 applicability (or lack thereof) is accordingly addressed in the oppositions to the motions in which 23 they were cited. Judicial notice, however, should be denied. 24 25 26 If this Court elects to take judicial notice of the service agreement, it should convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and give Plaintiff an opportunity 27 to take discovery and present evidence in response. See Fed. R. Civ. P. 12(b); Parrino, 146 F.3d 28 at 706.
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1 III. CONCLUSION 2 Defendant's request for judicial notice of the service agreements, privacy policies and the

3 other cases should be denied. 4 Dated: December 14, 2007 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By:____________________ Adam J. Gutride Seth A. Safier 835 Douglas Street San Francisco, CA 94114 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 Respectfully Submitted, GUTRIDE SAFIER REESE LLP

PLAINTIFF'S OPPOSITION TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICECASE NO. C 07-5115 JSW

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