Luxpro Corporation v. Apple, Inc.
RESPONSE in Opposition re 65 MOTION for Entry of Scheduling Order Under Federal Rules of Civil Procedure 16 filed by Apple, Inc.. (Attachments: # 1 Exhibit A)(Plunkett, Stuart)
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 THE SECOND AMENDED COMPLAINT Pursuant to Rule 201 of the Federal Rules of Evidence, Apple Inc. hereby requests that the Court take judicial notice of (1) an injunction issued by the Ninth Panel of the Braunschweig Regional Court in Braunschweig, Germany on March 14, 2005; (2) an injunction issued by the Shihlin District Court in Taipei, Taiwan on August 18, 2005; and (3) 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, which are cited in Apple's Motion to Dismiss the Second Amended Complaint ("SAC"). True and correct copies of the injunctions and their translations, as well as the Taiwan Supreme Court decision, are attached as Exhibits 2-6 to the accompanying Declaration of Thomas La Perle.
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 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., No. 06-5014, 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, No. 3:99CV1707 (AWT) (DFM), 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 German and Taiwanese injunctions are a proper subject of judicial notice. The SAC refers to (but does not attach) both of these injunctions, and Luxpro bases a number of its allegations on those injunctions. Specifically, Luxpro alleges that "Apple applied for and received
ex parte injunctive relief against Luxpro from a German Court" and that "Apple asked the Court to
require Luxpro to abandon the use of the word `Shuffle' in the product name." (SAC ¶ 37.) Luxpro
also contends that Apple obtained an injunction in Taiwan that prohibited Luxpro from
manufacturing, distributing and marketing its digital music players, and that the injunction "forced to stop all production, manufacturing, advertising and marketing of its popular Tangent MP3 players."
(Id. at ¶¶ 39, 41.) Luxpro has thus incorporated the two injunctions by reference into the SAC, allowing the Court to judicially notice them and consider them for purposes of Apple's motion to dismiss. Mattes, 323 F.3d at 698. The Court may judicially notice the injunctions for the additional, independent reason that they are orders of a foreign court. Mike's Train House, 472 F.3d at 412; Channer, 2001 U.S. Dist. LEXIS 25065 at *2. The Taiwan Supreme Court decision is also a proper subject of judicial notice. The SAC 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. Specifically, Luxpro alleges that it continued the Taiwanese litigation by filing appeals after the issuance of injunctive relief, and that the Taiwan Supreme Court affirmed the injunctive relief Apple sought and won with respect to Luxpro's "Super Tangent" product. (SAC ¶¶ 41-42.) Luxpro has thus incorporated the Taiwan Supreme Court decision by reference into the SAC, allowing the Court to judicially notice it and consider it for purposes of Apple's motion to dismiss. Mattes, 323 F.3d at 698. The Court may judicially notice the decision for the additional, independent reason that it is an order of a foreign court. Mike's Train House, 472 F.3d at 412; Channer, 2001 U.S. Dist. LEXIS 25065 at *2.
Respectfully submitted, /s/Kevin A. Crass KEVIN A. CRASS Arkansas Bar No.: 84029 FRIDAY, ELDREDGE & CLARK, LLP 400 West Capitol Avenue Suite 2000 Little Rock, Arkansas 72201-3522 Telephone: (501) 376-2011 Email: firstname.lastname@example.org 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: email@example.com and Co-Counsel PENELOPE A. PREOVOLOS (pro hac vice) California Bar No.: 87607 STUART C. PLUNKETT (pro hac vice) 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: PPreovolos@mofo.com E-mail: SPlunkett@mofo.com Attorneys for Defendant Apple Inc
ECF ATTESTATION I, Stuart C. Plunkett, am the ECF User whose ID and Password are being used to file this: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF APPLE INC.'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT I hereby attest that Kevin A. Crass has concurred in this filing.
Dated: February 26, 2010
MORRISON & FOERSTER LLP
By: /s/ Stuart C. Plunkett Stuart C. Plunkett
CERTIFICATE OF SERVICE
The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system, this 26th day of February, 2010.
/s/ Stuart C. Plunkett Stuart C. Plunkett
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