Gomelsky v. Apple, Inc.

Filing 19

Request for Judicial Notice re 17 MOTION to Dismiss and to Strike filed byApple, Inc.. (Related document(s) 17 ) (Preovolos, Penelope) (Filed on 12/22/2008)

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Gomelsky v. Apple, Inc. Doc. 1 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 PENELOPE A. PREOVOLOS (CA SBN 87607) (PPrevolos@mo fo.com) ANDREW D. MUHLBACH (CA SBN 175694) (AMuhlbach@mo fo.com) ANNE M. HUNTER (CA SBN 221455) (AHunter@mo fo.com) ALEXEI KLESTOFF (CA SBN 224016) (AKlestoff@mo fo.com) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION GIORGIO GOMELSKY, on behalf of himself and all others similarly situated, Plaint iff, v. APPLE INC., Defendant. Case No. C-08-04969 JF REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF APPLE INC.'S MOTION TO DISMISS AND TO STRIKE Date: February 20, 2009 Time: 9:00am Courtroom: 3 APPLE'S REQUEST FOR JUDICIAL NOTICE CASE NO. C-08-04969 JF sf-2612906 1 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 REQUEST FOR JUDICIAL NOTICE Pursuant to Rule 201 of the Federal Rules of Evidence, Apple Inc. hereby requests that the Court take judicial notice of Apple's written warrant y for its PowerBook G4 notebook computers, which is cited in Apple's Motion to Dismiss and to Strike. A true and correct copy of Apple's written warrant y is attached as Exhibit A to the accompanying Declaration of Anne M. Hunter. 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." It is axiomatic that under Rule 201, "documents whose contents are alleged in a complaint and whose authenticity no party quest ions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Hoey v. Sony Elecs. Inc., 515 F. Supp. 2d 1099, 1103 (N.D. Cal. 2007) (taking judicial notice of express warrant y because allegations in complaint were based on that warranty). APPLE'S REQUEST FOR JUDICIAL NOTICE CASE NO. C-08-04969 JF sf-2612906 2 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 Apple's written warrant y for its PowerBook G4 laptop computers, as it appeared in the packaging for those computers and as it appears on Apple's website, is a proper subject of judicial notice. The complaint here refers to the written warrant y several times, and plaintiff bases a number of his allegations on that warranty. Specifically, plaintiff contends that Apple intentionally wit hheld information about the alleged defect in its PowerBook G4 computers so that computer owners would not uncover the defect until such time as Apple's written warranty had expired. (Compl., 23, 50, 58.) Plaintiff also contends that Apple had a duty to disclose the alleged defect so that computer owners could take measures to repair the defect while still covered by Apple's written warranty. (Id. 77, 78.) Plaintiff has thus incorporated Apple's written warrant y by reference into the complaint, allowing the Court to judicially notice the warranty and consider it for purposes of Apple's motion to dismiss and to strike. Hoey, 515 F. Supp. 2d at 1103. Dated: December 22, 2008 PENELOPE A. PREOVOLOS ANDREW D. MUHLBACH ANNE M. HUNTER ALEXEI KLESTOFF MORRISON & FOERSTER LLP By: /s/ Penelope A. Preovolos Penelope A. Preovolos Attorneys for Defendant APPLE INC. APPLE'S REQUEST FOR JUDICIAL NOTICE CASE NO. C-08-04969 JF sf-2612906 3

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