Free Request for Judicial Notice - District Court of California - California

Case 3:07-cv-04975-WHA

Document 38

Filed 11/01/2007

Page 1 of 3

1 KEKER & V AN NEST, LLP

MICHAEL D. CELIO - #197998 2 CLEMENT S. ROBERTS - #209203 JO F. WEINGARTEN - #246224
3 710 Sansome Street

San Francisco, CA 94111-1704
4 Telephone: (415) 391-5400
Facsimile: (415) 397-7188 5 Email: mcelio(fkvn.com

cro berts(fkvn. com

6 iweingarten(fkvn.com
7 Attorneys for Defendants

ALEXANDER JAMES TRABULSE,
8 FAHEY FUND, L.P., FAHEY FINANCIAL

GROUP, INe., INTERNATIONAL TRADE
9 & DATA, and ITD TRADING
10
11

UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
13

SAN FRANCISCO DIVISION
14
15

SECURITIES AND EXCHANGE COMMISSION Case No. C-07-4975 WHA
16

Plaintiff,
17

v.
18

ALEXANDER JAMES TRABULSE
19

DEFENDANT ALEXANDER JAMES TRABULSE'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF HIS MOTION TO DISMISS

20
and
21

Defendant,

Time: 8:00 a.m.
Courtroom: 9

Date: December 6, 2007

Judge: Hon. Wiliam H. Alsup
Date Action Filed: September 26, 2007

FAHEY FUND, L.P., FAHEY FINANCIAL 22 GROUP, INC., INTERNATIONAL TRADE & DATA, and ITD TRADING,
23

24
25

Relief Defendants.

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405533.01

DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS CASE NO. C-07-4975 WHA

Case 3:07-cv-04975-WHA

Document 38

Filed 11/01/2007

Page 2 of 3

Defendant Alexander James Trabulse respectfully requests that the Court take judicial
2 notice, pursuant to Rule 201 of the Federal Rules of

Evidence, of certain documents and
his Motion to

3 information cited in his Memorandum of

Points and Authorities in Support of

4 Dismiss (the "Memorandum of

Points & Authorities").
1.

5

REQUEST FOR JUDICIAL NOTICE

6 Pursuant to Federal Rule Evidence 201, Defendant Alexander James Trabulse requests
7 that the Court take judicial notice of the following documents, which are attached to the

8 accompanying Declaration of Clement S. Roberts:
9
1.

Fahey Fund (Limited) Partnership Agreement, dated January 2002.

10
11

2.

Newspaper article by Kathleen Pender, Net Worth: Hedge Funds Need a Careful Look, S.F. Chron., Sept. 27, 2007, at Cl.

3. Dow Jones Industrial Average annual returns for the years 2000-2006.
12

II. JUDICIAL NOTICE IS APPROPRIATE
13

The material set forth above is suitable for judicial notice pursuant to Federal Rule of
14

Evidence 201. Under that rule, the Court may take judicial notice of any matter that is "not
15

subject to reasonable dispute in that it is either (1) generally known within the terrtorial
16

jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to
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sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).
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A. Documents referenced in Complaint.

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It is axiomatic that under Rule 201, "documents whose contents are alleged in a
20

complaint and whose authenticity no party questions, but which are not physically attached to the
21

pleading, may be considered in ruling on a Rule 12(b)( 6) motion to dismiss." Branch v. Tunnell,
22
14 F.3d 449,454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of

Santa
Bus.

23
Clara, 307 F.3d 1119 (9th Cir. 2002); see also Parks Sch. of

24
25
therein by reference are treated as part of the complaint for purposes of

, Inc. v. Symington, 51 F.3d

1480, 1484 (9th Cir. 1995) (holding that documents attached to the complaint and incorporated
Rule 12(b)(6).); In re

26
Autodesk, Inc. Sec. Litg., 132 F. Supp. 2d 833,837-38 (N.D. CaL. 2000) ("Thus, the court may

27

consider the full text of a document the complaint quotes only in part."). On this basis, the Court
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1

405533.01

DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS CASE NO. C-07-4975 WHA

Case 3:07-cv-04975-WHA

Document 38

Filed 11/01/2007

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1 may take judicial notice of the Fahey Fund (Limited) Partnership Agreement explicitly
2 referenced in the Complaint. See Plaintiffs Complaint (Docket No.1) iìiì 22,33.

3 B.

Documents that are a matter of public record.

4 Under Federal Rule of Evidence 201, "(a) court may take judicial notice of 'matters of
5 public record' without converting a motion to dismiss into a motion for summary judgment," as

6 long as the facts noticed are not "subject to reasonable dispute." Lee v. City ofL.A., 250 F.3d
7 668, 689 (9th Cir. 2001) (citation omitted).

8 The Dow Jones Industrial Average annual returns for the period from 2000 to 2006 are a
9 matter of public record. Similarly, the newspaper article from the San Francisco Chronicle is a

10 matter of public record. These facts and documents are, therefore, suitable for judicial notice.
11 See SECv. Bilzerian, 814 F. Supp. 116, 123, n. 19 (D.D.C. 1993), aff'd, 29 F.3d 689 (1994)
12 (taking

judicial notice of common stock closing prices); Ritter v. Hughes Aircraft Co., 58 F.3d

13 454,458-59 (9th Cir. 1995) (taking

judicial notice of a newspaper article); Trevino v. Us., 804
judicial notice of economic trends and inflation rates). Indeed,

14 F.2d 1512 (9th Cir. 1986) (taking

15 the court has "discretion to take judicial notice under Rule 201 of the existence and content of

16 published articles." us. v. WR. Grace, _ F.3d _,2007 WL 2728767, at *17 (9th Cir. Sept.
17 20,2007) (citing Bell Atlantic Corp. v. Twombly, _ U.S. _, 127 S.Ct. 1955, 1973 n.13
18 (2007); Us. v. Rutgard, 116 F.3d 1270, 1278 (9th Cir. 1997)).

19 In sum, Defendant Alexander James Trabulse respectfully requests that the Court take

20 judicial notice of the documents listed above.
21 Dated: November 1, 2007

KEKER & V AN NEST, LLP

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23

By:

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25

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CLEMENT S. ROBERTS Attorneys for Defendants ALEXANDER JAMES TRABULSE, FAHEY FUND, L.P., FAHEY FINANCIAL GROUP, INC., INTERNATIONAL TRADE & DATA, and ITD TRADING

¿af æ- -

405533.01

2 DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS CASE NO. C-07-4975 WHA