Brave New Films 501 (C)(4) v. Weiner et al

Filing 42

Request for Judicial Notice re 41 Declaration in Support,, 40 MOTION for Partial Summary Judgment PLAINTIFF BRAVE NEW FILMS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF BRAVE NEW FILMS' MOTION FOR PARTIAL SUMMARY JUDGMENT filed byBrave New Films 501 (C)(4). (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibits C & D, # 4 Exhibit Exhibits E, F, & G)(Related document(s) 41 , 40 ) (Pierce, Sheila) (Filed on 2/27/2009)

Brave New Films 501 (C)(4) v. Weiner et al Doc. 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Anthony T. Falzone (SBN 190845) Julie A. Ahrens (SBN 230170) STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: (650) 736-9050 Facsimile: (650) 723-4426 E-mail: falzone@stanford.edu William F. Abrams (SBN 88805) Sheila M. Pierce (SBN 232610) BINGHAM MCCUTCHEN LLP 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: 650.849.4400 Facsimile: 650.849.4800 E-mail: william.abrams@bingham.com Attorneys for Plaintiff BRAVE NEW FILMS 501(c)(4) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION BRAVE NEW FILMS 501(C)(4), v. Plaintiff, No. CV 08-04703 SI REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF BRAVE NEW FILMS 501(C)(4)'S MOTION FOR PARTIAL SUMMARY JUDGMENT Date: April 3, 2009 Time: 9:00 a.m. Place: Courtroom 10 Judge: Honorable Susan Illston MICHAEL WEINER aka MICHAEL SAVAGE, and ORIGINAL TALK RADIO NETWORK, INC., Defendants. CV 08-04703 SI REQUEST FOR JUDICIAL NOTICE Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Pursuant to Federal Rule of Evidence 201, Plaintiff Brave New Films 501(c)(4) respectfully requests that the Court take judicial notice of the following in support of its Motion for Partial Summary Judgment: ∑ Exhibit A: A true and correct copy of the Complaint filed by Michael Savage against Counsel on American-Islamic Relations, Inc. on December 3, 2007 in Savage v. Council on American-Islamic Relations, Inc., No. 3:07-cv-06076-SI, Docket No. 1. ∑ Exhibit B: A true and correct copy of the Motion for Judgment on the Pleadings filed by Counsel on American-Islamic Relations, Inc. on January 30, 2008 in Savage v. Council on American-Islamic Relations, Inc., No. 3:07-cv-06076-SI, Docket No. 12. ∑ Exhibit C: A true and correct copy of the Order Granting Defendants' Motion for Judgment on the Pleadings in Savage v. Council on American-Islamic Relations, Inc., No. 3:07-cv-06076-SI (N.D. Cal. July 25, 2008), Docket No. 38. ∑ Exhibit D: A true and correct copy of the Order of Dismissal dated August 15, 2008 in Savage v. Council on American-Islamic Relations, Inc., No. 3:07-cv06076-SI, Docket No. 40. ∑ Exhibit E: A true and correct copy of U.S. Copyright Office website registration record of the October 29, 2007 broadcast of "The Michael Savage Show." The registration record was obtained from the United States Copyright Office online catalog, located on the Library of Congress website at: http://cocatalog.loc.gov/cgibin/Pwebrecon.cgi?Search_Arg=michael+savage&Search_Code=TALL&PID=D rhi9X4f8olbksiZmd0FTxrVSajq&SEQ=20090227125129&CNT=25&HIST=1. ∑ Exhibit F: A true and correct copy of a posting on CAIR's website, www.cair.com, entitled "National Radio Host Goes on Anti-Muslim Tirade." 2 REQUEST FOR JUDICIAL NOTICE CV 08-04703 SI 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ∑ The posting, dated November 1, 2007, is found at: http://www.cair.com/ArticleDetails.aspx?mid1=777&&ArticleID=23608&&nam e=n&&currPage=2. Exhibit G: A true an correct copy of four minutes and thirteen seconds of audio excerpts from the October 29, 2007 broadcast of "The Michael Savage Show." The file "Savage 10.29.excerpt.wav" contains the above-referenced audio which was accessed through a link on CAIR's website, www.cair.com, at http://www.cair.com/ArticleDetails.aspx?mid1=777&&ArticleID=23608&&nam e=n&&currPage=2. ARGUMENT Federal Rule of Evidence 201 provides that a court may take judicial notice of a fact "not subject to reasonable dispute [and] . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). A court may take judicial notice "at any stage of the proceeding," including in ruling on a motion for summary judgment. Fed. R. Evid. 201(f); see Hunt v. Check Recovery Sys., 478 F. Supp. 2d 1157, 1160-61 (N.D. Cal. 2007) (taking judicial notice on a motion for summary judgment). A. Court Documents The Court may take judicial notice of matters of the public record including pleadings, decisions, orders and other documents filed in another court. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (a court may take judicial notice of court filings and other matters of public record); see also Kurtcu v. U.S. Parking Inc., No. 08-2113, 2008 U.S. Dist. LEXIS 51302, at *5 (N.D. Cal. Jun. 16, 2008) (a court may take judicial notice of orders and decisions made by other courts and administrative agencies). B. Websites The Court may take judicial notice of a website maintained publicly on the World Wide Web, the contents of which are readily ascertainable and widely disseminated. See e.g., Rearden LLC. v. Rearden Commerce, Inc., --- F. Supp. 2d ---, No. 06-7367, 2009 WL 276099, at *17 n.3 (N.D. Cal., Jan. 27, 2009) ("The court takes judicial notice of contents of this website and other 3 CV 08-04703 SI REQUEST FOR JUDICIAL NOTICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 websites cited herein pursuant to Federal Rule of Evidence 201."); Caldwell v. Caldwell, 420 F. Supp. 2d. 1102, 1105 n.3 (N.D. Cal. 2006) (granting judicial notice of the UC Berkeley Museum of Paleontology website and a portion of that site), aff'd, 545 F.3d 1126 (9th Cir. 2008); Coremetrics Inc. v. Atomic Park.com, LLC, 370 F. Supp. 2d 1013, 1021 (N.D. Cal. 2005) (taking judicial notice of content on AtomicPark's website); Cairns v. Franklin Mint Co., 107 F. Supp. 2d 1212, 1216 (C.D. Cal. 2000) (taking judicial notice of pages on Warhol Museum's website), aff'd, 292 F.3d 1139 (9th Cir. 2000). In addition, the Court may take judicial notice of an audio recording where there is no reasonable dispute as to its accuracy. See Twinde v. Threshold Pharms. Inc., No. 07-4972, 2008 U.S. Dist. LEXIS 58619, at *32 (N.D. Cal. July 11, 2008). III. CONCLUSION This Court may appropriately take judicial notice of the court filings and orders designated above as Exhibit A, Exhibit B, Exhibit C, and Exhibit D. Likewise, because website content is a proper subject for judicial notice, this Court may take judicial notice of the webpages attached hereto as Exhibit E and Exhibit F, as well as the audio file taken from CAIR's website attached hereto on a CD as Exhibit G. DATED: February 27, 2009 Bingham McCutchen LLP By: /s/ William F. Abrams William F. Abrams Attorneys for Plaintiff BRAVE NEW FILMS 4 REQUEST FOR JUDICIAL NOTICE CV 08-04703 SI