Luxpro Corporation v. Apple, Inc.

Filing 47

MOTION for Order in Support of Apple Inc.'s Motion to Dismiss by Apple, Inc.. (Attachments: # 1 Exhibit 1)(Crass, Kevin)

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Luxpro Corporation v. Apple, Inc. Doc. 47 Case 4:08-cv-04092-HFB Document 47 Filed 09/02/09 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION LUXPRO CORPORATION, a Taiwanese ) corporation, ) ) Plaintiff, ) ) v. ) ) APPLE, INC. f/k/a Apple Computer, ) Inc., ) ) ) Defendant. ) Civil Action No. 4:08-CV-04092-HFB REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF APPLE INC.'S MOTION TO DISMISS Pursuant to Rule 201 of the Federal Rules of Evidence, Apple Inc. hereby requests that the Court take judicial notice of a July 7, 2009 decision of the Taiwan Supreme Court regarding Apple's and Luxpro's respective appeals from Taiwanese lower court decisions referenced in Luxpro's complaint. A true and correct copy of the Taiwan Supreme Court decision, and an English translation of the decision, is attached hereto as Exhibit 1. Federal Rule of Evidence 201 allows a court to take judicial notice of adjudicative facts "not subject to reasonable dispute in that [they are] . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." "When considering a motion for judgment on the pleadings (or a motion to dismiss under Fed. R. Civ. P. 12(b)(6)), the court generally must ignore materials outside the pleadings, but it may consider `some materials that are part of the public record or do not contradict the complaint,' as well as materials that are `necessarily embraced by the pleadings.'" Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citations omitted). A court may also consider documents 1 835490.1 Case 4:08-cv-04092-HFB Document 47 Filed 09/02/09 Page 2 of 4 whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th Cir. 2003); Stahl v. United States Dep't of Agric., 327 F.3d 697, 700 (8th Cir. 2003) (district court properly took judicial notice of public record referenced in complaint); R.P. v. Springdale Sch. Dist., 2007 U.S. Dist. LEXIS 12073, *6 (W.D. Ark. Feb. 21, 2007) (on motion to dismiss, considering settlement agreements referred to and relied on in the complaint). Orders and judgments of foreign courts are also proper subjects of judicial notice. Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 412 (6th Cir. 2006) (taking judicial notice of forty-five exhibits that included English translations of documents generated during Korean judicial proceedings); Channer v. Brooks, 2001 U.S. Dist. LEXIS 25065, *2 (D. Conn. July 19, 2001) ("A federal court may take judicial notice of a decision rendered by the judicial system of a state or foreign country."). The Taiwan Supreme Court decision is a proper subject of judicial notice. The complaint refers to the litigation in Taiwan that led to this final determination in the Taiwan Supreme Court, and Luxpro bases a number of its allegations on that litigation. As argued at the hearing before the Court on September 1, 2009, the Taiwan Supreme Court affirmed the injunctive relief Apple sought and won with respect to Luxpro's "Super Tangent" product. Also, as argued at the hearing, the decision demonstrates that Luxpro continued the litigation by filing appeals after the issuance of injunctive relief, and the litigation was not finally resolved until July 2009. 835490.1 2 Case 4:08-cv-04092-HFB Document 47 Filed 09/02/09 Page 3 of 4 Respectfully submitted, /s/Kevin A. Crass Arkansas Bar No.: 84029 KEVIN A. CRASS FRIDAY, ELDREDGE & CLARK, LLP 400 West Capitol Avenue, Suite 2000 Little Rock, Arkansas 72201-3522 Telephone: (501) 376-2011 Email: and JAMES M. PRATT, JR. Arkansas Bar No.: 74124 144 Washington Street, Northwest P.O. Box 938 Camden, Arkansas 71701-0938 Telephone: (870) 836-7328 Email: and Co-Counsel PENELOPE A. PREOVOLOS California Bar No.: 87607 STUART C. PLUNKETT California Bar No.:187971 MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 E-mail: E-mail: Attorneys for Defendant Apple Inc. 835490.1 3 Case 4:08-cv-04092-HFB Document 47 Filed 09/02/09 Page 4 of 4 CERTIFICATE OF SERVICE I, Kevin A. Crass, hereby certify that on September 2, 2009, the foregoing was electronically filed with the Clerk which shall send notification of such filing to the following: Richard A. Adams,, Phillip N. Cockrell, Patrick J. Conroy, Jeremy Young Hutchinson, Glenn E. Janik,, Corey Darnell McGaha,, Reid Davis Miller, Nicholas H. Patton, Leisa B. Pearlman,,,k Patricia L. Peden Stuart Christopher Plunkett, James M. Pratt , Jr Penelope A. Preovolos, Sean F. Rommel, /s/ Kevin A. Crass KEVIN A. CRASS (84029) FRIDAY, ELDREDGE & CLARK, LLP 400 West Capitol Avenue, Suite 2000 Little Rock, Arkansas 72201-3522 Telephone: (501) 376-2011 Attorneys for Defendant, Apple Inc. f/k/a Apple Computer, Inc. 835490.1 4

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