McKinney v. Google, Inc. et al

Filing 89

RESPONSE to re 84 Request for Judicial Notice Plaintiffs Opposition to Request for Judicial Notice In Support of Defendants Motion to Dismiss Second Amended Complaint by Mary McKinney. (Avila, Sara) (Filed on 4/4/2011)

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1 2 3 4 5 6 7 8 9 10 11 12 13 MILSTEIN | ADELMAN, LLP SARA D. AVILA, State Bar No. 263213 2800 Donald Douglas Loop North Santa Monica, California 90405 Telephone (310) 396-9600 Facsimile (310) 396-9635 WHATLEY DRAKE & KALLAS, LLC Joe R. Whatley, Jr. (pro hac vice pending, NY Bar No.4406088) Edith M. Kallas (pro hac vice pending, NY Bar No. 2200434) Patrick J. Sheehan (pro hac vice pending, NY Bar No. 3016060) 1540 Broadway, 37th Floor New York, New York 10036 Tel: (212) 447-7070 Fax: (212) 447-7077 Attorneys for Plaintiff Additional Counsel Listed on Signature Page UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION 14 15 23 MARY MCKINNEY, Individually and on ) ) behalf of all others similarly situated, ) ) Plaintiff, ) ) v. ) GOOGLE, INC., a Delaware corporation; ) HTC CORP., a Delaware corporation; and ) T-MOBILE USA, INC., a Delaware ) ) corporation. ) ) Defendants ) 24 I. 16 17 18 19 20 21 22 5:10-cv-01177-JW PLAINTIFF’S OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT Date: Time: Courtroom: Judge: April 25, 2011 9:00 A.M. 8 Hon. James Ware INTRODUCTION 25 In connection with their Motion to Dismiss Plaintiff’s Second Amended Complaint, 26 Defendants Google Inc. and HTC Corporation have asked the Court to take judicial notice of (1) 27 Google’s Terms of Sale for the Nexus One and (2) HTC’s End User License Statement. 28 Defendants incorrectly assert that, under Federal Rule of Evidence 201, the Court can take judicial 1 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO REQUEST FOR JUDICIAL NOTICE 5:10-CV-01177-JW 1 notice of these documents. As explained below, the Court cannot take judicial notice of any of 2 these documents for the truth of their content. 3 II. ARGUMENT 4 A. Legal Standard 5 “Pursuant to Rule 201, a court may take judicial notice of adjudicative facts ‘not subject to 6 reasonable dispute.’” See Jones v. Dovery, 2008 WL 733468, at *18 (S.D. Cal. Mar. 18, 2008) 7 (quoting Fed. R. Evid. 201(b)). To satisfy the rule, facts must be either “generally known” or 8 “capable of accurate and ready determination by resort to sources whose accuracy cannot 9 reasonably be questioned.” See Fed. R. Evid. 201(b). “The party requesting judicial notice bears 10 the burden of persuading the court that the particular fact is not reasonably subject to dispute and 11 is capable of immediate and accurate determination by resort to a source ‘whose accuracy cannot 12 reasonably be questioned.’” See Jasso v. Citizens Telecomms. Co. of Cal., Inc., 2007 WL 97036, 13 at *2 (E.D. Cal. Jan. 9, 2007); In re Tyrone F. Conner Corp., 140 B.R. 771, 781 (Bankr. E.D. Cal. 14 1992) (“[A] party requesting judicial notice bears the burden of persuading the trial judge that the 15 fact is a proper matter for judicial notice.”). 16 Because judicial notice is “an adjudicative device that substitutes the acceptance of a 17 universal truth for the conventional method of introducing evidence,” the doctrine “merits the 18 traditional caution it is given, and courts should strictly adhere to the criteria established by the 19 Federal Rules of Evidence before taking judicial notice of pertinent facts.” See Gen. Elec. Capital 20 Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997). Were it otherwise, “the 21 fundamental concept of procedural due process” would be implicated, see In re Tyrone F. Conner 22 Corp., 140 B.R. at 782, as “the effect of taking judicial notice under Rule 201 is to preclude a 23 party from introducing contrary evidence and in effect, directing a verdict against him as to the 24 fact noticed,” see United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994). 25 26 27 B. Defendants’ Request Must Be Denied Because Disputed Matters Are Not Judicially Noticeable. “If a court takes judicial notice of a fact in dispute, the court removes [the weapons of 28 2 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS SECOND AMENDED COMPLAINT 5:10-CV-01177-JW 1 rebuttal evidence, cross-examination, and argument] from the parties and raises doubt as to 2 whether the parties received a fair hearing.” See Gen. Elec. Capital, 128 F.3d at 1083. Thus, 3 Federal Rule of Evidence 201 expressly provides that matters in dispute may not be judicially 4 noticed. See Lee v. City of Los Angeles, 250 F. 3d 668, 689 (9th Cir. 2001) (“[A] court may not 5 take judicial notice of a fact that is ‘subject to reasonable dispute.’ ”) (quoting Fed. R. Evid. 6 201(b)). 1. 7 Defendants Have Not Properly Authenticated Exhibits 1 And 2 8 Plaintiff disputes the authenticity of the documents proffered and assertions made by 9 Defendants’ attorneys and representatives. Defendants have failed to produce any undisputed 10 matters of public record for which judicial notice may properly be taken, and, thus, their request 11 must be denied. 12 indisputable evidence that the Terms of Sale attached to Plaintiff’s original complaint is the Terms 13 of Sale Google attaches to its Request for Judicial Notice. Second, Defendants provide no 14 evidence that Plaintiff actually received the Terms of Sale and/or the HTC End User License 15 Agreement,1 nor that she read, understood or agreed to any term set forth therein. Third, with 16 regard to the HTC End User License Agreement, Defendants provide absolutely no authority 17 supporting the argument that it can bootstrap this document simply because it is referenced in 18 another document. If that were the state of the law companies could reference a myriad of 19 documents to protect themselves from future liability to consumers. 2. 20 See Lee, 250 F. 3d at 689-90 (9th Cir. 2001). First, Defendants provide no Exhibits 1 and 2 Are Hearsay And Thus Judicial Notice Should Not Be Taken As To Their Facts And Contents 21 22 To the extent the Court takes judicial notice as to the existence of Exhibits 1 and 2, it 23 should reject Defendants’ request that the Court take judicial notice of the contents of those 24 documents. Hearsay is an out of court statement offered for the truth of the matters asserted. Fed. 25 R. Evid. 801(c). Here, the out of court statements contained in Exhibits 1 and 2 are being offered 26 1 27 28 Plaintiff has never attached the HTC End User License Agreement to any court filing. Defendant HTC does not offer any evidence showing the HTC End User was given to Plaintiff or any member of the Class. Moreover, Plaintiff’s allegations against HTC do not refer to any agreement with HTC. Therefore, the Court should not take judicial notice of Exhibit 2. 3 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS SECOND AMENDED COMPLAINT 5:10-CV-01177-JW 1 for the truth and contents of the matters asserted therein (i.e. to support Defendants’ assertion the 2 exhibits disclaim warranties). In particular, Defendants ask the Court to interpret Exhibits 1 and 2 3 in considering Defendants’ Motion to Dismiss. See Mtn. at 17:11-18:6, FN 12 and 20:22-21:1. 4 Moreover, Exhibit 2 amounts to “double hearsay” as it is merely a document that was vaguely 5 referenced in Exhibit 1 (referred to as the “HTC Limited Warranty terms”). Accordingly, both 6 documents must not be relied upon for their contents. 7 III. CONCLUSION 8 For the reasons explained above, the Court should deny Defendants’ Request and refuse to 9 take judicial notice of Google’s Terms of Sale for the Nexus One and HTC’s End User License 10 Agreement. 11 DATED: April 4, 2011 12 Attorneys for Plaintiff Mary McKinney and the Proposed Class 13 14 15 By: 16 17 /s/ Sara D. Avila MILSTEIN ADELMAN, LLP Gillian L. Wade Sara D. Avila WHATLEY DRAKE & KALLAS, LLC Joe R. Whatley, Jr. Edith M. Kallas Patrick J. Sheehan 18 19 LAW OFFICE OF HOWARD RUBINSTEIN Howard Rubinstein 914 Waters Avenue, Suite 20 Aspen, Colorado 81611 Tel: (832) 715-2788 20 21 22 23 24 SMITH & VANTURE, LLP Brian W. Smith 1615 Forum Place, Suite 4C West Palm Beach, Florida 33401 Tel: (800) 443-4529 Fax: (561) 688-0630 25 26 27 28 4 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS SECOND AMENDED COMPLAINT 5:10-CV-01177-JW

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