Jackson Browne v. John McCain et al

Filing 21

REQUEST FOR JUDICIAL NOTICE re MOTION to Dismiss Case Under FRCP 12(b)(6) 19 filed by Defendants John McCain, The Republican National Committee, The Ohio Republican Party. (Bandlow, Lincoln)

Jackson Browne v. John McCain et al

Doc. 21

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
SSAB LLP

SPILLANE SHAEFFER ARONOFF BANDLOW LLP Lincoln D. Bandlow (SBN 170449) 1880 Century Park East, Suite 1004 Los Angeles, CA 90067-2627 Telephone: [phone] Fax: [phone] [e-mail] Attorneys for Defendant JOHN MCCAIN

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

JACKSON BROWNE., an individual Plaintiff, vs.

CASE # CV08-05334 RGK (Ex) JOINT REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' MOTIONS TO DISMISS UNDER FRCP 12(b)(6)

JOHN MCCAIN, an individual; THE REPUBLICAN NATIONAL COMMITTEE, a non-profit political organization; THE OHIO REPUBLICAN PARTY, a non-profit political Hearing: Date: December 8, 2008 organization, Time: 9:00 a.m. Place: Courtroom 850 Defendants.

1
DEFENDANTS' JOINT 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

Pursuant to Federal Rule of Evidence 201, Defendants John McCain, Ohio Republican Party and Republican National Committee (collectively "Defendants") respectfully requests that this Court take judicial notice of the following documents: 1. A DVD copy of the Ohio Republican Party Political Video that is the subject of this action (the "Political Video"), which was referenced and described in the Complaint (¶ 2) filed by plaintiff Jackson Browne ("Browne"), was identified and authenticated in the concurrently-filed Declaration of John McClelland as Exhibit 1, and was filed under separate cover pursuant to the Court's manual filing procedures. 2. A compact disc of the Song Running On Empty which was referenced in the Complaint (¶¶ 2 and 13), was identified and authenticated in the concurrently-filed Declaration of John McClelland as Exhibit 2, and was filed under separate cover pursuant to Court's manual filing procedures. 3. Articles and news stories identified, authenticated and attached to the concurrently-filed Declaration of Lincoln D. Bandlow as Exhibits 5-20. These documents are properly subject to judicial notice under Federal Rule of Evidence 201(a) and (b) (judicial notice may be taken of "adjudicative facts" "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). Hunt v. Check Recovery Systems, Inc., 478 F.Supp.2d 1157, 1160 (N.D.Cal. 2007). When considering a motion to dismiss, the Court may consider exhibits submitted or referenced in the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. Pegasus Holdings v. Veterinary Centers of America, Inc., 38 F. Supp. 2d 1158, 1160 (C.D. Cal. 1998). "Documents specifically referred to in a complaint, though not physically attached to the pleading, may be considered where authenticity is unquestioned." Daly v. Viacom, Inc., 238 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2002) (court considered television program referenced in, but not attached to complaint); Burnett v. Twentieth Century Fox Film Corp., 491 F. 2

SSAB LLP

DEFENDANTS' JOINT 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

Supp. 2d 962, 966 (C.D. Cal. 2007) (reviewing two works referenced in the complaint on Motion to Dismiss). Here, the song Running On Empty from the Browne album of the same name and the Political Video are at issue in the case and are specifically referenced in paragraphs 13 and 2 of the Complaint, respectively, but are not attached. Defendant Ohio Republican Party concurrently filed a true and correct copy of a DVD of the Political Video at issue and a CD of the song Running On Empty. See McClelland Decl., Exhibits 1 and 2. Since Browne specifically referred to and relies upon the Political Video and the Song, it is appropriate for the Court to take judicial notice of these items. It is also appropriate for federal courts to take judicial notice of articles and news stories relevant to the proceedings, such as the articles and news stories concerning the use of the term "running on empty." See Show-World Center, Inc. v. Walsh, 438 F.Supp. 642, 654 (D.C.N.Y. 1977) ("This court takes judicial notice of the fact that defendants' campaign against sex oriented establishments in the midtown area of the Borough of Manhattan...has received widespread publicity in the community via newspaper publicity and television news stories"); Allen v. City and County of Honolulu, 58 Haw. 432, 438, 571 P.2d 328, 331 (Hawaii 1977) (court took judicial notice of news stories). Defendant John McCain concurrently filed true and correct copies of several relevant news stories. See Bandlow Decl., Exhibits 5-20.

Dated:

November 17, 2008

SPILLANE SHAEFFER ARONOFF BANDLOW LLP

Lincoln D. Bandlow Attorneys for Defendant JOHN MCCAIN

By:

3
SSAB LLP
DEFENDANTS' JOINT REQUEST FOR JUDICIAL NOTICE