Very Strong objection by Handal for "RJN"against Research in motion- black berry
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Message: Very Strong objection by Handal for "RJN"against Research in motion- black berry
e.Digital Corporation,
Plaintiff,
v.
Research In Motion Limited dba
BlackBerry; Research In Motion
Corporation dba BlackBerry,
Defendants.
Case No. 3:13-cv-00781-DMS-WVG
PLAINTIFF E.DIGITAL
CORPORATION'S OBJECTION TO
“REQUEST FOR JUDICIAL NOTICE
IN SUPPORT OF DEFENDANTS’
[SIC] REPLY TO MOTION TO
DISMISS UNDER FED. R. CIV. P.
12(C)”
Date: August 2, 2013
Time: 1:30 P.M.
Judge: Hon. Judge Dana M. Sabraw
Ctrm: 13A (Annex)
Research In Motion Limited dba
BlackBerry; Research In Motion
Corporation dba BlackBerry,
Counterclaimants,
v.
e.Digital Corporation,
Counter-Defendant.
INTRODUCTION
Plaintiff and Counter-Defendant e.Digital Corporation (“Plaintiff” or
“e.Digital”) submits the following objections to the “Request for Judicial Notice In
Support of Defendants’ [sic] Reply to Motion to Dismiss under Fed. R. Civ. P.
12(c)” (“RJN”) (Dkt #55) filed by Defendants Research In Motion Limited dba
BlackBerry and Research In Motion Corporation dba BlackBerry on or about July
26, 2013 in redacted form and under seal. Defendants Research In Motion Limited
dba BlackBerry and Research In Motion Corporation dba BlackBerry are hereafter
referred to collectively as “Defendants” and/or “RIM.”
Defendants have asked the Court to take judicial notice of Defendants’
Exhibit 1 (Dkt #39-1) (hereafter referred to as “Exhibit 1”). The Defendants filed
Exhibit 1 in redacted form and under seal on or about July 10, 2013. (Dkt #39-1).
Plaintiff requests that the Court strike and/or not consider the RJN or its
contents when ruling on Defendants' “Notice Of Motion And Motion To Dismiss
Under Fed. R. Civ. P. 12(C) And Supporting Memorandum” (hereafter “Motion”)
(Dkt #39). The grounds for this request and Plaintiff’s objections to the RJN are set
forth herein.
OBJECTIONS
A. Objection Number One: Plaintiff objects to the entire RJN on the
grounds that it is a new matter that was not brought up in
Defendants’ moving papers
Defendants’ request for judicial notice and the grounds advanced therefor
constitute new matter not raised in the moving papers. Defendants did not file the
RJN until they filed their reply. (Dkt #55). While Plaintiff acknowledges that
judicial notice may be taken at any stage of a proceeding pursuant to Federal Rules
of Evidence Rule 201(d), Plaintiff asserts that it is improper for the moving party
to “shift gears” and introduce new facts or different legal arguments in the reply
brief than presented in the moving papers. New documents and issues cannot be
brief than presented in the moving papers. New documents and issues cannot be
raised in a reply.
See, e.g., Lentinj v. California Center for the Arts Escondido , 370
F.3d 837, 843 n. 6 (9th Cir. 2004);
Lujan v. National Wildlife Federation (1990)
497 US 871, 894–895, 110 S.Ct. 3177, 3192 (court has discretion to disregard latefiled
factual matters);
Zamani v. Carnes (9th Cir. 2007) 491 F3d 990, 997 (“district
court need not consider arguments raised for the first time in a reply brief”);
see
also Ojo v. Farmers Group, Inc.
(9th Cir. 2009) 565 F3d 1175, 1186, fn. 12;
Giovanni v. Bank of America, Nat. Ass'n,
2013 WL 1663335, *4 (C.D. Cal. April
7, 2013);
Provenz v. Miller , 102 F.3d 1478, 1483 (9th Cir. 1996); Davenport v.
M/V New Horizon
, 2002 WL 32098289 at *3 (N.D.Cal.Dec. 18, 2002).
Accordingly, Plaintiff respectfully requests that the Court deny the RJN in
B. Objection Number Two: Plaintiff objects to the RJN to the extent
that Defendants are asking the Court to take judicial notice of the
contents of their Exhibit 1 to prove the truth of certain matters
Judicial notice may be taken of facts “not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Here, while the
Court can take judicial notice of the fact that the document contained in
Defendants’ Exhibit 1 exists, the Court cannot take judicial notice of the contents
of that document for the truth of any matters asserted therein.
See, e.g. In re Sony
Gaming Networks and Customer Data Sec. Breach
Litigation 903 F.Supp.2d 942,
955 (S.D.Cal.2012) (taking the judicial notice of the existence of certain
documents, but only to the extent that they exist and not for the content cited
therein)
; In re Bare Escentuals, Inc. Sec. Litig ., 745 F.Supp.2d 1052, 1067
(N.D.Cal.2010)
; Coalition for a Sustainable Delta v. McCamman , 725 F.Supp.2d
1162, 1183–84 (E.D.Cal. 2010);
Pacific Coast Federation of Fishermen's
Associations v. U.S. Dept. of the Interior
, 2013 WL 923407, *21, fn. 5
Accordingly, Plaintiff respectfully requests that the
Court deny the RJN on this basis.
C. Objection Number Three: Plaintiff objects to the RJN to the
extent that Defendants are asking the Court to take judicial notice
of the contents of Exhibit 1 to resolve disputed factual
matters
A Court “may not take judicial notice of a fact that is subject to reasonable
dispute.”
Lee v. City of Los Angeles , 250 F.3d 668, 689–90 (9th Cir. 2001). Factual
information asserted in a document cannot be used to create or resolve disputed
issues of material fact.
Coalition for a Sustainable Delta v. McCamman , 725
F.Supp.2d 1162, 1183–84 (E.D.Cal. 2010). Courts when ruling on motions to
dismiss may “consider unattached evidence on which the Complaint necessarily
relies only if: (1) the complaint refers to the document; (2) the document is central
to the plaintiff's claims; and (3) no party questions the authenticity of the
document.”
U.S. v. Corinthian Colleges , 655 F.3d 984, 999 (9th Cir.2011).
While Plaintiff does not dispute the existence of the document contained in
Defendants’ Exhibit 1, Plaintiff does object to the Court drawing inferences or
taking judicial notice of facts that might reasonably be disputed and/or are disputed
by Plaintiff. The document contained in Exhibit 1 is partially redacted (and thereby
incomplete), is not a public record, and was not attached to the Complaint or
central to Plaintiff’s claims in the Complaint.
See, e.g., Gallagher v. San Diego
Unified Port Dist.
2009 WL 311120 *5, fn. 8 (S.D. Cal. Feb. 6, 2009) (denying
request to take judicial notice of a settlement agreement because it was not
mentioned in the complaint and was not in the public record). Moreover, at this
stage in the proceedings, it would be improper to take judicial notice of any facts
that may be or are reasonable disputed by Plaintiff.
See, United States v.
Corinthian Colleges
655 F3d 984, 998–999 (9th Cir. 2011) (declining with respect
to a motion to dismiss to take judicial notice of facts favorable to Defendants on
the basis of evidence outside of the complaint that could reasonably be disputed).
Accordingly, Plaintiff respectfully requests that the Court deny the RJN on this
basis.
D. Objection Number Four: Plaintiff objects to the RJN on the
grounds that the Defendants have failed to properly request
judicial notice of Exhibit 1 and/or meet their burden of proof with
respect thereto
While Plaintiff acknowledges that no particular form for the request for
judicial notice is required, the Defendants are required to furnish the Court with
sufficient information to enable it to determine whether the matter is a proper
subject of judicial notice—i.e., that it is not reasonably disputable because it is a
matter of common knowledge or readily ascertainable by resort to reliable sources.
Fed.R.Evid. 201(c)(2);
see, e.g. Old Republic Ins. Co. v. Hansa World Cargo
Service, Inc.
, 170 F.R.D. 361, 372 (S.D.N.Y. 1997); Nieves v. University of Puerto
Rico
, 7 F.3d 270, 276, fn. 9; Clark v. South Central Bell Tel. Co., 419 F.Supp. 697,
703 (WD LA 1976);
Guzman-Ruiz v. Hernandez-Colon , 406 F.3d 31, 36 (1st Cir.
2005). A party requesting judicial notice bears the burden of persuading the Court
that the fact is a proper matter for judicial notice.
In re Tyrone F. Conner Corp.,
Inc.
, 140 B.R. 771, 781 (Bkrtcy.E.D.Cal.1992); see also, Newman v. San Joaquin
Delta Community College Dist.
272 F.R.D. 505, 516 (E.D.Cal.2011). “To sustain
its burden in persuading the trial judge that the adjudicative fact sought to be
noticed is in fact proper for notice under Federal Rule of Evidence 201, the party
must (1) persuade the court that the particular fact is not reasonably subject to
dispute and is capable of immediate and accurate determination by resort to a
source ‘whose accuracy cannot reasonably be questioned’ ....”
In re Tyrone F.
Conner Corp.
at 781.
The document contained in Exhibit 1 is partially redacted and contains only
a few of several pages. It is thereby incomplete. Accordingly, it is unclear how the
Defendants can assert that the Court has sufficient information by which to
determine whether it is appropriate to take judicial notice of the document
contained in Exhibit 1. Further, the Defendants have not specified what fact or
facts they are requesting the Court to take judicial notice of and instead have made
an overly broad, extremely vague request for judicial notice. Again, it is unclear
how the Court can determine whether to grant the request for judicial notice in
light of such a vague request or what it is precisely the Defendants are asking the
Court take judicial notice of with respect to their Motion.
In light of the above, Defendants have thereby failed to meet their burden of
proof and have also failed to supply the Court with information sufficient to enable
the Court to ascertain whether the fact sought to be adjudicated is proper for
judicial notice.
See, e.g., Wilkins v. Ramirez, 455 F.Supp.2d 1080, 1112-13 (S.D.
Cal. 2006) (declining to take judicial notice of certain documents because, among
other things, the requests for judicial notice were “overly broad” and the
information contained in the records at issue were not “generally known within the
territorial jurisdiction”). Accordingly, Plaintiff respectfully requests that the Court
deny the RJN on this basis.
Dated: July 30, 2013
Respectfully Submitted,
HANDAL & ASSOCIATES
By: /s/Pamela C. Chalk _________________
Anton N. Handal
Pamela C. Chalk
Gabriel G. Hedrick
Attorneys for Plaintiff
e.Digital Corporation
18 Recommendations
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