City of San Jose et al v. Office of the Commissioner of Baseball et al

Filing 26

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS COMPLAINT re 25 filed by Office of the Commissioner of Baseball, Allan Huber "Bud" Selig. (Attachments: # 1 Exhibit-A, # 2 Exhibit-B, # 3 Exhibit-C, # 4 Exhibit-D, # 5 Exhibit-E, # 6 (Proposed) Order) (Keker, John) (Filed on 8/7/2013) Text modified on 8/7/2013 (fff, COURT STAFF).

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KEKER & VAN NEST LLP
JOHN KEKER - # 49092
[e-mail]
PAULA L. BLIZZARD - # 207920
[e-mail]
THOMAS E. GORMAN - # 279409
[e-mail]
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
415 391 5400
Facsimile:
415 397 7188

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PROSKAUER ROSE LLP
BRADLEY I. RUSKIN (pro hac vice)
[e-mail]
Eleven Times Square
New York, NY 10036
Telephone:
212-969-3000
Facsimile:
212-969-2900
PROSKAUER ROSE LLP
SCOTT P. COOPER (SBN 96905)
[e-mail]
SARAH KROLL-ROSENBAUM (SBN 272358)
[e-mail]
JENNIFER L. ROCHE (SBN 254538)
[e-mail]
SHAWN S. LEDINGHAM, JR. (SBN 275268)
[e-mail]
2049 Century Park East, 32nd Floor
Los Angeles, CA 90067-3206
Telephone:
310-557-2900
Facsimile:
310-557-2193
Attorneys for Defendants
OFFICE OF THE COMMISSIONER OF BASEBALL,
an unincorporated association doing business as Major League
Baseball; and ALLAN HUBER “BUD” SELIG

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA / SAN JOSE DIVISION

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CITY OF SAN JOSÉ; CITY OF SAN
JOSÉ AS SUCCESSOR AGENCY TO
THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN JOSÉ; and THE SAN JOSÉ
DIRIDON DEVELOPMENT AUTHORITY,

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Case No. 13-CV-02787-RMW
DEFENDANTS’ REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
MOTION TO DISMISS PLAINTIFF’S
COMPLAINT

Plaintiffs,
v.

Hearing Date: October 4, 2013

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OFFICE OF THE COMMISSIONER OF
BASEBALL, an unincorporated association
doing business as Major League Baseball; and
ALLAN HUBER “BUD” SELIG,

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Judge:
Hon. Ronald M. Whyte
Date Filed: June 18, 2013
Trial Date: None Set

Defendants.

DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS
Case No. 13-CV-02787-RMW
773807

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REQUEST FOR JUDICIAL NOTICE

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Defendants Office of the Commissioner of Baseball and Allan Huber “Bud” Selig

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respectfully request that the Court take judicial notice of the following governmental records cited

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in support of their Motion to Dismiss:
A. San José City Council Resolution 74908, adopted May 12, 2009 (“2009 City Council

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Resolution”), attached as Exhibit A;

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B. Excerpts from the record of the 1982 hearings before the Senate Judiciary Committee

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on Professional Sports Antitrust Immunity, 97th Cong., Serial No. J-97-134, attached

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as Exhibit B;
C. The October 29, 1997 Report of the Senate Judiciary Committee on the Curt Flood Act

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(bill S. 53, later enrolled as 15 U.S.C. § 26B), S. Rep. 105-118, attached as Exhibit C;

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D. The California State Controller’s March 2013 Review Report entitled “Redevelopment

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Agency of the City of San Jose: Asset Transfer Review January 1, 2011, through

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January 31, 2012” (“Controller’s Report”), attached as Exhibit D; and
E. A memorandum of the San José City Manager and San José Redevelopment Agency

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Executive Director bearing the subject line “Option Agreement for Sale of Property to

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Athletics Investment Group, LLC,” dated October 24, 2011 (“October 2011

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Memorandum”), attached as Exhibit E.
MEMORANDUM OF POINTS AND AUTHORITIES

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Courts may take judicial notice of facts that are “not subject to reasonable dispute,” such as

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when they can be “accurately and readily determined from sources whose accuracy cannot

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reasonably be questioned.” Fed. R. Evid. 201(b)(2). Here, Defendants seek judicial notice of

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public records and reports generated by federal, state, and municipal governmental entities, all of

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which can be confirmed by reference to publicly available information contained in the

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Congressional Record or on government websites. 1 Judicial notice of such documents is

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Exhibits A, C, D, and E are all available from federal, state, and municipal websites. See Exhibit
A, available at http://www3.sanjoseca.gov/clerk/ORDS_RESOS/RESO_74908.pdf; Exhibit C,
available at http://www.gpo.gov/fdsys/pkg/CRPT-105srpt118/pdf/CRPT-105srpt118.pdf; Exhibit
D, available at http://www.sco.ca.gov/Files-AUD/03_2013san_jose_asset_transfer_review.pdf;
Exhibit E, available at http://www3.sanjoseca.gov/clerk/Agenda/20111108/20111108_jpa02.pdf.
DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS
Case No. 13-CV-02787-RMW
773807

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appropriate “at any stage of the proceeding,” Fed. R. Evid. 201(d), including when considering a

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Rule 12(b)(6) motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).

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As the Northern District of California has recognized, “courts routinely take judicial notice of

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legislative history and of information on government websites.” Paralyzed Veterans of Am. v.

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McPherson, No. C 06-4670 SBA, 2006 WL 3462780, at *4 (N.D. Cal. Nov. 28, 2006); see also

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Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (holding that it was

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“appropriate to take judicial notice of this information [taken from school district websites], as it

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was made publicly available by government entities (the school districts), and neither party

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disputes the authenticity of the web sites or the accuracy of the information displayed therein”).

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Additionally, courts in this Circuit have recognized that each specific category of

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document raised here is appropriate for judicial notice:

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1. Exhibit A, the 2009 City Council Resolution, constitutes a record of an

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administrative proceeding and is therefore subject to judicial notice. See Lewis v.

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Cnty. of Berkeley, No. C-08-5089 JCS, 2009 WL 33326, at *3–4 (N.D. Cal. Jan. 6,

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2009) (taking judicial notice of city council resolution); see also Santa Monica

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Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006)

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(“City ordinances fall within the category of ‘common knowledge’ and are

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therefore proper subjects for judicial notice.”) (quoting Newcomb v. Brennan, 558

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F.2d 825, 829 (7th Cir. 1977)).

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2. Exhibits B and C consist of “materials and testimony . . . in the Congressional

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Record” or in published Congressional Reports, and are therefore appropriate for

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judicial notice. Planned Parenthood Fed’n of Am. v. Ashcroft, 320 F. Supp. 2d

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957, 1014 n.42 (N.D. Cal. 2004) (taking judicial notice of hearings before

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Congressional committees), rev’d on other grounds, Gonzales v. Carhart, 550 U.S.

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124 (2007);

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Exhibit B is available in the Congressional Record. See Professional Sports Antitrust Immunity:
Hearing on S. 2784 and S. 2821 Before the S. Comm. on the Judiciary, 97th Cong., Serial No. J97-134 (1982).
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DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS
Case No. 13-CV-02787-RMW
773807

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3. Exhibit D, the Controller’s Report, and Exhibit E, the October 2011 Memorandum,

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are “government agency reports of public record,” both “capable of verification by

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reference to [the government entity’s] website,” and are therefore judicially

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noticeable. Lamle v. City of Santa Monica, No. CV 04-6355-GHK (SH), 2010 WL

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3734868, at *5 (C.D. Cal. July 23, 2010); see also Retired Emps. Ass’n of Orange

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Cnty., Inc. v. Cnty. of Orange, 632 F. Supp. 2d 983, 985 (C.D. Cal. 2009) (taking

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judicial notice of report issued by county controller).

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For the foregoing reasons, the documents here may be considered by the Court in ruling on

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Defendants’ Motion to Dismiss and Defendants therefore request that the Court grant this Request

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for Judicial Notice.

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Dated: August 7, 2013

KEKER & VAN NEST LLP

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By:

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/s/ John Keker
JOHN KEKER
PAULA L. BLIZZARD
THOMAS E. GORMAN

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PROSKAUER ROSE LLP
BRADLEY I. RUSKIN

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SCOTT P. COOPER
SARAH KROLL-ROSENBAUM
JENNIFER L. ROCHE
SHAWN S. LEDINGHAM, JR.

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Attorneys for Defendants
OFFICE OF THE COMMISSIONER OF
BASEBALL an unincorporated association
doing business as Major League Baseball;
and ALLAN HUBER “BUD” SELIG

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DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS
Case No. 13-CV-02787-RMW
773807