National Federation of the Blind et al v. Target Corporation

Filing 28

Memorandum in Opposition re 16 First MOTION to Dismiss Amended Complaint filed byNational Federation of the Blind, Bruce Frank Sexton, the National Federation of the Blind of California. (Attachments: # 1 Proposed Order Denying Target's Motion to Dismiss# 2 Request For Judicial Notice# 3 Declaration of Camilla L. Roberson# 4 Exhibit A# 5 Exhibit B# 6 Exhibit C)(Paradis, Laurence) (Filed on 6/12/2006)

National Federation of the Blind et al v. Target Corporation

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644

LAURENCE W. PARADIS (California Bar No. 122336) [e-mail] MAZEN M. BASRAWI (California Bar No. 235475) [e-mail] DISABILITY RIGHTS ADVOCATES 2001 Center Street, Third Floor Berkeley, California 94704 Telephone: [phone] Facsimile: [phone] TTY: [phone] TODD M. SCHNEIDER (California Bar No. 158253) [e-mail] JOSHUA KONECKY (California Bar No. 182897) [e-mail] SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: [phone] Fax: [phone] TTY: [phone] DANIEL F. GOLDSTEIN (pro hac vice) [e-mail] BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore St., Suite 1700 Baltimore, MD 21202 Telephone: [phone] Fax: [phone] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION NATIONAL FEDERATION OF THE BLIND, the NATIONAL FEDERATION OF THE BLIND OF CALIFORNIA, on behalf of their members, and Bruce F. Sexton, on behalf of himself and all others similarly situated, Plaintiffs, v. TARGET CORPORATION, Defendant. Case No.: C 06-01802 MHP CLASS ACTION PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE IN CONNECTION WITH PLAINTIFFS' OPPOSITION TO DEFENDANT TARGET CORPORATION'S MOTION TO DISMISS Hearing Date: July 24, 2006 Time: 2:00 p.m. Judge: The Honorable Marilyn Hall Patel

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National Federation of the Blind, et al v. Target Corporation Case. No.: C 06-01802 MHP Plaintiffs' Request For Judicial Notice In Connection With Plaintiffs' Opposition To Defendant Target Corporation's Motion To Dismiss
Dockets.Justia.com

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644

I.

INTRODUCTION Pursuant to Federal Rule of Evidence 201, Plaintiffs request that this Court take judicial

notice of three records. The first record it the transcript of the Congressional oversight hearing entitled Applicability of the Americans With Disabilities Act (ADA) to Private Internet Sites: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. 65010 (2000), attached as Exhibit A to the Declaration of Camilla L. Roberson ("Roberson Decl."), submitted herewith. Defendant Target.com specifically referred to these hearing in its Motion to Dismiss and plaintiffs have cited the hearing transcripts in their Opposition. The second record is a Brief of the United States as Amicus Curiae in Support of Appellant, filed by the U.S. Department of Justice in the case Hooks v. OKBridge, Inc., 232 F.3d 208 (5th Cir. 2000) (No. 99-50891), Exhibit B to Roberson Decl. The third record is a Letter from the Assistant Attorney-General for Civil Rights to Senator Tom Harkin, (September 9, 1996), 10 NDLR 240 (currently available at http://www.usdoj.gov/crt/foia/cltr204.txt), Exhibit C to Roberson Decl. Both of these documents are cited in Plaintiffs' Opposition to Defendant's Motion to Dismiss and discuss the opinion of the DOJ regarding the applicability of the ADA to private internet sites. Government records and court records have long been found to be judicially noticeable by federal courts. In conformity with the requirements of the Rule, these records are official, publicly available documents that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." F.R.E. 201(b)(2). Plaintiffs and/or defendants refer to each of these records in their briefs. They are therefore amenable to judicial notice. II. ARGUMENT

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All of the documents of which plaintiffs seek judicial notice are court records or government records which are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably questioned." FRE 201(b)(2).
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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644

The Congressional hearing transcripts are public records easily accessible online through the official website of Congress, in this case of the House of Representatives. See Roberson Decl. ¶2. These are the official transcripts of hearings open to the public. As both defendant Target and plaintiffs have specifically referred to these hearings as an indication of Congressional intent regarding the ADA and its applicability to the Internet, the transcripts of the hearings themselves are clearly relevant to the case. Additionally the technical letter of the U.S. Department of Justice to Senator Tom Harkin regarding the applicability of the ADA to the Internet is also appropriate for judicial notice and relevant to the case. Public filings of government agencies or entities are appropriate for judicial notice under Rule 201(b)(2). Numerous courts have found government publications to be appropriate for judicial notice. See Clappier v. Flynn, 605 F.2d 519, 535 (10th Cir. 1979); Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313 (N.D.N.Y. 2003) (judicial notice may be taken of the Federal Register); U.S. ex rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 968 (W.D. Mich. 2003), affirmed 388 F.3d 209 (in qui tam action under False Claims Act (FCA) against anthrax vaccine manufacturer, District Court would take judicial notice of congressional documents); Austracan (U.S.A.) Inc. v. Neptune Orient Lines, Ltd., 612 F. Supp. 578 (S.D.N.Y. 1985) (under Federal Evidence Rule 201(b)(2), court would take judicial notice of contents of government publication, a shipper's guide, which defined "pier-to-house" shipment as being shipment loaded into container at pier or terminal then exported directly to consignee's designated area for unloading); Nehus v. Alaska Marine Towing, Inc., 519 F. Supp. 328 (W.D. Wash. 1981) (court considering case involving collision of vessels would take judicial notice of the publication, United States Coast Pilot). The Amicus Brief filed by the Department of Justice in Hooks v. OKBridge is a court record, also "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FRE 201(b)(2). This document is contained in court files, on the official website of the DOJ and in legal databases and can be readily verified if necessary. See Roberson Decl. ¶3. Furthermore this document has been cited by plaintiffs and
National Federation of the Blind, et al v. Target Corporation Case. No.: C 06-01802 MHP Plaintiffs' Request For Judicial Notice In Connection With Plaintiffs' Opposition To Defendant Target Corporation's Motion To Dismiss

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644

is being offered to establish the opinion of the Department of Justice regarding the applicability of the ADA to the Internet. Finally, courts routinely take judicial notice of court filings and records. See, e.g., Sosuther Cross Overseas Agencies, Inc. v. Kah Kwong Shipping Group, Ltd., 181 F.3d 410, 426-27 (3rd Cir.); United States v. Jones, 29 F.3d 1549, 1553. (11th Cir. 1994). In short, the documents that plaintiffs request this Court take judicial notice are public records whose accuracy can be readily determined. Public records are self-authenticating under the Federal Rules of Evidence, F.R.E. 901(a) and (b)(7), and are considered an exception to the hearsay rule. F.R.E. 803(8). The documents do not contain facts that are in dispute or reasonably subject to dispute, and derive from trustworthy sources. I. CONCLUSION For the foregoing reasons, plaintiffs respectfully request that this Court take judicial notice of the transcript of the Congressional hearing entitled Applicability of the Americans With Disabilities Act (ADA) to Private Internet Sites, and the letter to Senator Harkin and Amicus Brief issued by the Department of Justice, submitted herewith.

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Respectfully submitted, DATED: June 12, 2006 DISABILITY RIGHTS ADVOCATES LAURENCE W. PARADIS MAZEN M. BASRAWI SCHNEIDER & WALLACE TODD M. SCHNEIDER JOSHUA KONECKY BROWN, GOLDSTEIN & LEVY, LLP DANIEL F. GOLDSTEIN (pro hac vice) By: /s/ Laurence W. Paradis . Laurence W. Paradis Attorneys for Plaintiffs

National Federation of the Blind, et al v. Target Corporation Case. No.: C 06-01802 MHP Plaintiffs' Request For Judicial Notice In Connection With Plaintiffs' Opposition To Defendant Target Corporation's Motion To Dismiss

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