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

Filing 36

Reply in Support of Request for Judicial Notice in Support of Motion to Dismiss Plaintiff's Complaint re 25 filed by Office of the Commissioner of Baseball, Allan Huber "Bud" Selig. (Keker, John) (Filed on 9/20/2013) Modified on 9/23/2013 (bw, 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
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,
Plaintiffs,
v.
OFFICE OF THE COMMISSIONER OF
BASEBALL, an unincorporated association
doing business as Major League Baseball;
and ALLAN HUBER “BUD” SELIG,

Case No. 13-CV-02787-RMW
REPLY IN SUPPORT OF REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
MOTION TO DISMISS PLAINTIFF’S
COMPLAINT
Hearing Date: October 4, 2013
Judge:

Hon. Ronald M. Whyte

Date Filed: June 18, 2013
Trial Date: None set

Defendants.
Reply in Support of Request for Judicial Notice in Support of Motion to Dismiss Plaintiffs’ Complaint
Case No. 13-CV-02787-RMW

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Defendants have presented public records generated by federal, state, or municipal
government entities. They are all appropriate for judicial notice.

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A.

Exhibit A

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Plaintiffs object to the authenticity of Exhibit A, a 2009 San Jose City Council

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Resolution. The document is an official publication obtained from the City of San Jose’s official

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website and therefore it is self-authenticating under Federal Rule of Evidence 902(5). Paralyzed

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Veterans of Am. v. McPherson, No. C 06-4670 SBA, 2008 WL 4183981, at *6–7 (N.D. Cal. Sept.

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9, 2008) (concluding that reports issued by a public authority and published on the Secretary of

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State’s website were “self-authenticating”); Estate of Gonzales v. Hickman, No. ED CV 05-660

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MMM (RCx), 2007 WL 3237727, at *2 n.3 (C.D. Cal. May 30, 2007) (holding that report issued

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by the Inspector General and published on the Inspector General’s website was self-

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authenticating). A signed and otherwise identical copy of the resolution is also available in a

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different section of Plaintiffs’ website. See “Option Agreement” Memorandum from Mayor

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Chuck Reed to Rules and Open Government Committee” (Oct. 20, 2011) (attaching Resolution

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No. 74908), available at http://ca-sanjose.civicplus.com/Archive/ViewFile/Item/691.

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B.

Exhibits B and C

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Plaintiffs object to the authenticity of Exhibit B because “there are extraneous markings

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on the cover page and the document is incomplete.” Opp. to RFJN at 2:1–3. The first page of

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Exhibit B bears a stamp and handwritten filing notations that were added by the UCLA Law

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Plaintiffs make irrelevant arguments that Exhibit A should be disregarded because it is available
from a San Jose website that is no longer “updated.”. This web page is incorporated into the San
Jose City Clerk’s active website, under the link labeled “Archived Agendas & Minutes.” See
http://sanjoseca.gov/index.aspx?NID=145. The “root URL” that Plaintiffs attempt to disavow in
their Opposition is the City’s online source for all City Council minutes and resolutions prior to
2013. Further, Exhibit A is the version of Resolution 74908 that is linked to, and referenced in,
the minutes for the May 12, 2009 San Jose City Council meeting at which the resolution was
adopted. San Jose cannot seriously contend that a City Council resolution that was incorporated
into City Council minutes on the City Clerk’s website is inauthentic.

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Plaintiffs’ argument that Exhibit A is not signed and thus not authentic is unavailing. As an
official publication, it is self-authenticating under Fed. R. Evid. 902(5). Plaintiffs do not dispute
that resolutions are public records subject to judicial notice. Thornbrough v. W. Placer Unified
Sch. Dist., No. 2:09-cv-02613-GEB-GGH, 2010 WL 2179917, at *2 (E.D. Cal. May 27, 2010)
(taking judicial notice of school district’s resolution because it was a matter of public record);
Meeker v. Belridge Water Storage Dist. , No. 1:05-CV-00603 OWW SMS, 2006 U.S. Dist.
LEXIS 91775, at *31–32 (E.D. Cal. Oct. 23, 2006) (taking judicial notice of a copy of the
Belridge Water Storage District’s resolution, a public record).
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Reply in Support of Request for Judicial Notice in Support of Motion to Dismiss Plaintiffs’ Complaint
Case No. 13-CV-02787 RMW

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Library. RFJN Ex. B. Defendants obviously do not ask this Court to take judicial notice of these

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markings. See Dent v. Holder, 627 F.3d 365, 371–72 (9th Cir. 2010) (taking judicial notice of

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government records but not taking notice of handwritten notations or stamps on certain

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documents in the records). This congressional record comes from an official publication of the

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United States, and is therefore self-authenticating under Federal Rule of Evidence 902(5).

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Further, judicial notice of an excerpt is proper. See, e.g., Pentair Thermal Mgmt., LLC v. Rowe

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Indus., Inc., No. 06-cv-07164 NC, 2013 WL 1320422, at *4 (N.D. Cal. Mar. 31, 2013) (taking

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judicial notice of an excerpt of a guide published by the EPA).

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Plaintiffs also object that the legislative history contained in Exhibits B and C is “offered

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solely as legal argument.” Opp. to RFJN at 2:7, 2:14–15. That is incorrect and not a valid reason

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for the Court to decline to take judicial notice. Defendants have presented legislative history

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regarding Congress’s treatment of the baseball antitrust exemption to show Congress’s purpose

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and intent for enactment of the Curt Flood Act. Federal district courts regularly, and

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appropriately, take notice of legislative history to aid in their interpretation of statutes. See, e.g.,

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Palmer v. Stassinos, 348 F. Supp. 2d 1070, 1077, 1080–82 (N.D. Cal. 2004). And Defendants

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may rely on judicially noticed documents in their argument. Davenport v. Bd. of Trs., 654 F.

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Supp. 2d 1073, 1095 (E.D. Cal. 2009) (granting request for judicial notice of matters of public

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record used to support the defendant’s argument); Glover v. Fremont Inv. & Loan, No. C-09-

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03922 (JCS), 2009 WL 5114001, at *2 (N.D. Cal. Dec. 18, 2009) (taking judicial notice of

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documents used to support the defendant’s argument on motion to dismiss).

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C.

Exhibits D & E

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Plaintiffs do not dispute that “[j]udicial notice is appropriate for records and reports of

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administrative bodies,” such as Exhibits D and E. United States v. 14.02 Acres, 547 F.3d 943,

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955 (9th Cir. 2008) (internal quotation marks omitted). Defendants request judicial notice of

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Exhibit D, the California State Controller’s March 2013 Review Report and Exhibit E, the

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memorandum of the San Jose City Manager and San Jose Redevelopment Agency Executive

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Director dated October 24, 2011; Defendants have not requested judicial notice of any “assertions

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of what the contents mean.” Opp. to RFJN at ¶ 4; see Boysen v. Walgreen Co., No. C 11-06262
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Reply in Support of Request for Judicial Notice in Support of Motion to Dismiss Plaintiffs’ Complaint
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SI, 2012 WL 2953069, at *1 n.2 (N.D. Cal. July 19, 2012); see also In re LeapFrog Enters., Inc.

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Sec. Litig., 527 F. Supp. 2d 1033, 1042 (N.D. Cal. 2007) (“By granting defendants’ request for

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judicial notice, the court does not purport to accept defendants’ interpretation of the matters

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therein.”).

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For the foregoing reasons, the Court should grant the Defendants’ Request for Judicial
Notice.

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Dated: September 20, 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
PROSKAUER ROSE LLP
BRADLEY I. RUSKIN
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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Reply in Support of Request for Judicial Notice in Support of Motion to Dismiss Plaintiffs’ Complaint
Case No. 13-CV-02787 RMW
781530