1 Arrormnvs AT LAW
6750 East Camelback Rd., Suite 100-A 4
2 Scottsdale, AZ 85251
TELEPHONE (480) 222-0914
3 FAX (480) 222-0955
4 Nicholas J. DiCarlo (Bar No. 016457)
Christopher A. Caserta (Bar No. 018755)
5 Iarnes E. Phelps (Bar No. 019948)
6 Att0rneysf0r·Plaintr)j'
7 ‘ UNITED STATES DISTRICT COURT
8 DISTRICT OF ARIZONA
9
MERCHANT TRANSACTION SYSTEMS,
10 INC., No. 02-CV—l954-PHX-MHM
11 Plaintiff
MERCHANT TRANSACTION SYSTEMS,
12 VS_ ]NC.’S REQUEST TO TAKE JUDICIAL
NOTICE OF RECENT STATE COURT
_ 13 NELCELA, INC., an Arizona corporation; LEN OF APPEALS DECISION
CAIVIPAGNA, an Arizona resident; ALEC
14 DOLLARHIDE, a¤Ar~1zrm resident; _
EB OCOM, INC., a Delaware Corporation; (TPS H¤¤¤r4b19 Mm? H Mvramal
15 POST INTEGRATIONS, INC., an Illinois
16 Corp.,
1 7 Defendants.
18 And Related Counterclairrrs and Cross—Clairns
19 - A
Plaintiff Merchant Transaction Systems, Inc. (“MTSI"), in conjunction with its response in
20
21 opposition to Nelcela’s motion for partial summary judgment, hereby requests that this Court take
22 judicial notice of a recent decision of the Arizona Court of Appeals in Merchant Tmnsacrioiz
` 23 Systems, Inc. v. Nelcela, Inc., Case No. lCA—CV 05-0487. The Court of Appeals decision reverses
24 the decision of the Superior Court, which was heavily relied upon by Nelcela in its Motion for
25 Partial Sumrnary Judgment Against Plaintiff MTSI On All Phase I Claims.
1 As this Court is aware, Nelcela argued in its motion for summary judgment that MTSI did
2 not have the right to file this lawsuit because it allegedly "sold all of its assets and liabilities to EPX
3 on March 29, 2001 ." (Nelcela Motion for Partial Summary Judgment, p. 14.) According to Nelcela,
4 "[t]his was one of the exact reasons that Judge Fields granted Nelcela summary judgment in the
5 related state case .. ." (Id., at p. l5.)1
-6 MTSI makes this request for judicial notice because in a Memorandum Decision dated
7 August l, 2006, the Arizona Court of Appeals reversed Judge Fields’ decision granting summary
8 judgment. A copy of the decision is attached hereto at Exbibit A. The Court of Appeals
9 acknowledged Nelcela’s argument that “the claim had been sold to EPX ...†(Memorandum
IO Decision, p. 5), but it disagreed and held that “[v]iewing the evidence in the light most favorable to
ll MTSI, a reasonable jury could find that Nelcela was liable to MTSI for the processing fees ...â€
12 (Memorandum Decision, p. 12.) Thus, Nelcela’s argument that the claim did not belong to MTSI
13 was rejected. ‘
14 In light of Nelcela’s reliance on Judge Fields’ decision in its motion for summary judgment
15 against MTSI, MTSI requests this Court to take judicial notice of the fact that the decision has been
16 reversed. According to Fed.R.Evid. 201, a "judicially noted fact must be one not subject to
17 reasonable dispute in that it is capable of accurate and ready determination by resort to sources
18
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1 Actually, the "exact reasons" that Judge Fields granted summary judgment in the state court case
20 are not clear. ln that case, MTSI sued Nelcela for unpaid credit card processing fees that CCS Ltd.
incurred at the request of Nelcela. Nelcela moved for summary judgment on a number of grounds,
2l including the argument that the claim was sold to EPX. Judge Fields did not state whether he
accepted l\Jelcela’s argument regarding ownership of the claim. His ruling states: "lT IS
22 ORDERED granting the motion for the reasons set forth in [Nelcela’s] motion. The undisputed facts
are that the defendant Nelcela does not owe the amount claimed by Plaintiff" (4/1 l/05 Ruling of
23 Judge Fields attached at Exhibit B.) The exact basis of Judge Fields’ dismissal is not explained in
the decision. The ruling could just as easily have been based on Judge Fields’ belief that Nelcela did
24 not owe the money and not based on a determination that MTSI did not own the rights to the lawsuit.
25
1 whose accuracy cannot reasonably be questioned? The Ninth Circuit has held that "[j]udicia1 notice
2 is properly taken of orders and decisions made by other courts or administrative agencies? Papai v.
3 Harbor Tug and Barge Co., 67 F.3d 203, 207 (9th Cir. 1995), rev ’a' on other grounds, 520 U.S. 548,
4 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997); see also Dackett v. Goalinez, 67 F.3d 734 (9th Cir. 1995)
5 (“We may take judicial notice of proceedings in other courts, whether in the federal or state
6 systems.") Therefore, it is proper for this Court to take judicial notice of the recent decision of the
7 Court of Appeals, especially since Ne1ce1a’s motion for Sl1II]1I1Ei1'y judgment places great weight on
8 the decision.
9 RESPECTFULLY SUBMITTED: this Q1 day of September, 2006.
10 DICARLO CASERTA & PHELPS PLLC
1 1
12 By s/ Nicholas I DiCarlo
Nicholas J. DiCarlo
13 6750 E. caaerbaak Ra., ste. 100-A
M Scottsdale, Arizona 85251
William McKinnon
15 800 E. Ocean Blvd., Ste. 501
16 Long Beach, Califorpia 90802
Artorrteys for Plamtyjfs
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Case 2:02-cv-01954-IVIHIVI Document 324 Filed O9/O5/2006 Page 3 of 4
1 ORIGINAL electronically filed with the Clerk’s Office;
COPY mailed to Honorable Mary H. Mnrgnia; and
2 COPY electronically transmitted to the following
CM/ECP registrants this same date to:
3
Merrick B. Firestone
4 1'Il.I`-I1`CSIZO1'}.C@TOI1B1l—ZElTCSIO11€.CO111
Veronica L. Manolio
5 [email protected]
Attorneys for Nelcela, Inc., Len Campagna and Alec Dollarhide
6
William McI<.innon
7 [email protected]
8 Attomey for Merchant Transaction Systems, Inc.
9 Peter D. Baird
[email protected]
Robert H. McKirgan
1 0 rmclcii·ga11(Q)Jlrlaw.co1n
Richard A. Halloran
U Rna11¤m@niaW.¤¤1a
1 2 Kimberly Demarchi
I
14 Nicholas J. Wallwork
nwallworkg@¢steptoe.com
15 Bridget S. Bade
[email protected]
1 6 Fredric D. Bellamy -
[email protected]
17 Attorneys for Lexcel, Inc. and Lexcel Solutions
1 8 I
By: s/Mcholas J DiCm·l0
I 9
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