eBay Inc. v. Digital Point Solutions, Inc. et al

Filing 31

First MOTION to Dismiss for Failure to State a Claim filed by Digital Point Solutions, Inc., Shawn Hogan. Motion Hearing set for 12/12/2008 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Judical Notice, # 2 Exhibit 1, # 3 Declaration of Seyamack Kouretchian, # 4 Proposed Order)(Kouretchian, Seyamack) (Filed on 10/27/2008) .

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Seyamack Kouretchian (State Bar No. 171741) [e-mail] Ross Campbell (State Bar No. 234827) Rcampbell@Coast LawGroup.com COAST LAW GROUP, LLP 169 Saxony Road, Suite 204 Encinitas, California 92024 Tel: [phone] Fax: [phone] Attorneys for Defendants, SHAWN HOGAN and DIGITAL POINT SOLUTIONS, INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION EBAY, INC., ) ) Plaintiff, ) ) v. ) DIGITAL POINT SOLUTIONS, INC., SHAWN ) ) HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD ) ) DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, BRIANDUNNING.COM, ) ) and Does 1-20, ) ) Defendants. ) ) Case No. CV 08-04052 JF PVT DEFENDANTS DIGITAL POINT SOLUTIONS, INC. AND SHAWN HOGAN'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PARTIAL MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [FRCP RULE 12(b)(6)] Date: December 12, 2008 Time: 9:00 a.m. Dept.: Courtroom 3

I. SUMMARY OF REQUEST Defendants DIGITAL POINT SOLUTIONS, INC. and SHAWN HOGAN, in support of their partial motion to dismiss Plaintiff EBAY, INC.'s First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), request that the Court take judicial notice of the following certified records of the California Secretary of State, true and correct copies of which are attached hereto: /././

D e fe n d a n ts ' Request for Judicial Notice in Support of Motion to Dismiss

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Case No. CV 08-04052 JF PVT

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EXHIBIT 1.

DESCRIPTION Certified Records of the California Secretary of State consisting of the Articles of Incorporation of Digital Point Solutions, Inc., filed May 14, 2007 (certified on October 3, 2008).

The Court should take judicial notice of Exhibit 1 under Federal Rule of Evidence 201. II. JUDICIAL NOTICE IS PROPER

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A court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment. MGIC Indem. Corp. v. Weisman (9th Cir. 1986) 803 F.2d 500, 504. In that regard, certified public records kept by the Secretary of State, including a corporation's articles of incorporation, "fall directly into the category of items that the Ninth Circuit generally considers proper for judicial notice." Grassmueck v. Barnett (W.D. Wash. 2003) 281 F. Supp. 2d 1227, 1232. As such, courts may take judicial notice of such articles as part of a 12(b)(6) motion without converting the motion into summary judgment. Id. Under Rule 201(d), "A court shall take judicial notice if requested by a party and supplied with the necessary information." Based on the above, Defendants respectfully request that the Court take judicial notice of the certified records of the Secretary of State set forth in Exhibit 1 hereto. DATED: October 27, 2008 s/Seyamack Kouretchian COAST LAW GROUP, LLP 169 Saxony Road, Suite 204 Encinitas, CA 92024 Telephone: [phone] FAX: [phone] E-mail: [e-mail] Attorney for Defendants, Shawn Hogan and Digital Point Solutions, Inc.

D e fe n d a n ts ' Request for Judicial Notice in Support of Motion to Dismiss

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Case No. CV 08-04052 JF PVT