Gomelsky v. Apple, Inc.

Filing 88

Request for Judicial Notice re 87 MOTION to Dismiss the Third Amended Complaint filed byApple, Inc.. (Related document(s) 87 ) (Preovolos, Penelope) (Filed on 6/28/2010)

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PENELOPE A. PREOVOLOS (CA SBN 87607) ([e-mail]) ANDREW D. MUHLBACH (CA SBN 175694) ([e-mail]) ALEXEI KLESTOFF (CA SBN 224016) ([e-mail]) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: 415.268.7522 Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 15 16 17 18 19 20 21 22 Plaintiffs, 23 v. 24 APPLE INC., 25 26 27 28
APPLE'S REQUEST FOR JUDICIAL NOTICE CASE NO. C-08-04969 JF, C-09-01649 JF sf-2857492

REUBEN BERENBLAT, ANDREW PERSONETTE, EARL C. SIMPSON, LAURA MILLER, On behalf of themselves and all others similarly situated, Plaintiffs, v. APPLE INC., Defendant. THOMAS WAGNER, SCOTT MEYERS, On behalf of themselves and all others similarly situated,

Case No. Case No.

C-08-04969 JF C-09-01649 JF

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF APPLE INC.'S MOTION TO DISMISS THE THIRD AMENDED COMPLAINT Date: September 24, 2010 Time: 9:00 am Courtroom: 3

Defendant.

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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 an online message board thread titled "RAM upgrade causes FCPHD crashes," which is cited in Apple's Motion to Dismiss the Third Amended Complaint. A true and correct copy of the thread is attached as Exhibit A to the accompanying Declaration of Alexei Klestoff. 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 questions, 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); Berenblat v. Apple, Inc., Nos. 08-4969, 09-1649, 2009 U.S. Dist. LEXIS 80734, at *2 n.3 (N.D. Cal. Aug. 21, 2009) (taking judicial notice of express warranty because it was referenced in the complaint); Hoey v. Sony Elecs. Inc., 515 F. Supp. 2d 1099, 1103 (N.D. Cal. 2007) (the court can take judicial notice of a document if the complaint refers extensively to it or if it forms the basis of plaintiff's claim). The message board thread is a proper subject of judicial notice. The Third Amended Complaint ("TAC") refers to the thread and Plaintiffs base their allegations on it. Specifically, Plaintiffs allege that the thread evidences Apple's exclusive knowledge and active concealment of the purported defect in PowerBook G4 computers. (TAC ¶¶ 29-31, 111.) Plaintiffs have thus incorporated the thread by reference into the complaint, allowing the Court to judicially notice the thread and consider it for purposes of Apple's motion to dismiss. Berenblat, 2009 U.S. Dist. LEXIS 80734, *2 n.3; Branch, 14 F.3d at 454; Hoey, 515 F. Supp. 2d at 1103. // // //
APPLE'S REQUEST FOR JUDICIAL NOTICE CASE NO. C-08-04969 JF, C-09-01649 JF sf-2857492

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1 Dated: June 28, 2010 2 3 4 By: 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 REQUEST FOR JUDICIAL NOTICE CASE NO. C-08-04969 JF, C-09-01649 JF sf-2857492

PENELOPE A. PREOVOLOS ANDREW D. MUHLBACH ALEXEI KLESTOFF MORRISON & FOERSTER LLP /s/ Penelope A. Preovolos Penelope A. Preovolos Attorneys for Defendant APPLE INC.

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