Hovsepian v. Apple, Inc.

Filing 37

Request for Judicial Notice re 36 MOTION to Strike 22 Amended Complaint Defendant Apple Inc.'s Notice of Motion and Motion to Strike Class Allegations From Plaintiff's Amended Complaint; Memorandum of Points and Authorities in Support Thereof MOTION to Strike 22 Amended Complaint Defendant Apple Inc.'s Notice of Motion and Motion to Strike Class Allegations From Plaintiff's Amended Complaint; Memorandum of Points and Authorities in Support Thereof, 35 MOTION to Dismiss Defendant Apple Inc.'s Notice of Motion and Motion to Dismiss Amended Class Action Complaint; Memorandum of Points and Authorities in Support Thereof filed byApple, Inc.. (Related document(s) 36 , 35 ) (Counts, Thomas) (Filed on 6/1/2009)

Hovsepian v. Apple, Inc.

Doc. 37

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DAVID M. WALSH (SB# 120761) [e-mail] PAUL, HASTINGS, JANOFSKY & WALKER LLP 515 South Flower Street Twenty-Fifth Floor Los Angeles, CA 90071 Telephone: [phone] Facsimile: [phone] THOMAS A. COUNTS (SB# 148051) [e-mail] ERIC A. LONG (SB# 244147) [e-mail] PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street Twenty-Fourth Floor San Francisco, CA 94105-3441 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

ARAM HOVSEPIAN, individually and on behalf of all others similarly situated, Plaintiff, vs. APPLE INC., Defendant.

CASE NO. C 08-05788 JF DEFENDANT APPLE INC.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS MOTION TO DISMISS AND MOTION TO STRIKE AMENDED COMPLAINT Date: Time: Dept.: July 24, 2009 9:00 a.m. Courtroom 3, 5th Floor

Complaint Filed: December 31, 2008

Case No. C 08-05788 JF

DEFENDANT APPLE INC.'S REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS AND MOTION TO STRIKE
Dockets.Justia.com

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Pursuant to Rule 201 of the Federal Rules of Evidence, Defendant Apple Inc. ("Apple") hereby requests that the Court take judicial notice of Apple's One (1) Year Limited Warranty ­ Worldwide for Apple-branded hardware, including the iMac, which is cited in Apple's Motion to Dismiss and Motion to Strike, filed concurrently herewith. A true and correct copy of an exemplar of Apple's written warranty is attached as Exhibit A to the accompanying Declaration of Eric A. Long and contains the language that Plaintiff received with his iMac at the time of purchase. Federal Rule of Evidence 201(b) provides that a court may 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." Under this rule, "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); Hoey v. Sony Elecs. Inc., 515 F. Supp. 2d 1099, 1103 (N.D. Cal. 2007) (taking judicial notice of express warranty because complaint was based on that warranty); Long v. HewlettPackard Co., 2007 U.S. Dist. LEXIS 79262, at *16-18 n.3 (N.D. Cal. July 27, 2007) (taking judicial notice of warranty because it was referenced in the complaint). Apple's written warranty for the iMac is a proper subject of judicial notice. Plaintiff's Amended Class Action Complaint ("Amended Complaint') specifically refers to Apple's written warranty, and Plaintiff bases his allegations on this warranty. For example, Plaintiff's prayer for relief states that "Plaintiff seeks a declaration that the Apple iMac screen display warranties regarding the one year time limitation on manufacturing defects in material or workmanship are void, invalid and not enforceable." (Cmplt. at ¶ 100.) Plaintiff also maintains that "[t]here is an actual controversy between Apple and the Class concerning the validity of the time limitations in the warranty on iMac screen displays showing vertical lines." (Cmplt. at ¶ 97; see also id. at ¶ 10 ("consumers have made warranty claims arising from vertical lines which have been denied as out of warranty"); id. at ¶ 28 (". . . the vertical line problem will manifest, -1Case No. C 08-05788 JF DEFENDANT APPLE INC.'S REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS AND MOTION TO STRIKE

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and that such manifestation is likely to occur just after the expiration of the Apple warranty of one year.").) Since Plaintiff has incorporated Apple's written warranty by reference into the Amended Complaint, the Court may take judicial notice of this warranty and consider it for purposes of Apple's Motion to Dismiss, and for Apple's Motion to Strike.

DATED: June 1, 2009

PAUL, HASTINGS, JANOFSKY & WALKER LLP

By:

/s/ Thomas A. Counts THOMAS A. COUNTS

Attorneys for Defendant APPLE INC.
LEGAL_US_W # 61773605.1

-2Case No. C 08-05788 JF

DEFENDANT APPLE INC.'S REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS AND MOTION TO STRIKE