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
12
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.
26 27
28
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
17
sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).
18
A. Documents referenced in Complaint.
19
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
28
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
Page 3 of 3
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
22
23
By:
24
25
26 27
28
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