FOX TELEVISION STATIONS, INC., et al v. AEREOKILLER LLC, et al

Filing 40

Memorandum in opposition to re 37 Emergency MOTION for Reconsideration re 33 Memorandum & Opinion, 34 Preliminary Injunction, , 38 Emergency MOTION Judicial Notice re 37 Emergency MOTION for Reconsideration re 33 Memorandum & Opinion, 34 Preliminary Injunction, , 36 Emergency MOTION to Stay Preliminary Injunction filed by ALLBRITTON COMMUNICATIONS COMPANY, AMERICAN BROADCASTING COMPANIES, INC., CBS BROADCASTING, INC.,, CBS STUDIOS, DISNEY ENTERPRISES, INC., FOX BROADCASTING COMPANY, INC., FOX TELEVISION STATIONS, INC., GANNETT CO., INC., NBC STUDIOS LLC, NBC SUBSIDIARY (WRC-TV), LLC, OPEN 4 BUSINESS PRODUCTIONS LLC, TELEMUNDO NETWORK GROUP LLC,, TWENTIETH CENTURY FOX FILM CORPORATION, UNIVERSAL NETWORK TELEVISION LLC. (Attachments: # 1 Objections to Defendants' Supplemental Evidence, # 2 Objections to Defendants' Request for Judicial Notice, # 3 Text of Proposed Order)(Smith, Paul)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA

FOX TELEVISION STATIONS, INC., et al.

Civil Action No. 1:13-cv-00758-RMC
Hon. Rosemary M. Collyer

Plaintiffs,
v.
FILMON X, LLC, et al.
Defendants.

PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE

Plaintiffs1 respectfully submit their Objections to the Request for Judicial Notice (Dkt.
No. 38) filed by Defendants FilmOn X, LLC (f/k/a/ Aereokiller LLC), FilmOn.TV Networks,
Inc., FilmOn.TV, Inc., and FilmOn.com, Inc. (collectively, “FilmOnX”) in connection with
FilmOnX’s Emergency Motions (Dkt. Nos. 36 and 37) (the “Request”). FilmOnX asks the
Court to take judicial notice of (1) Aereo, Inc. (“Aereo”) press releases and (2) a docket report
and a pleading from a case pending in the District of Massachusetts, Hearst Stations Inc. v.
Aereo, Inc., Case No. 13-cv-11649-NMG (“Hearst Case”). Because the Request: (1) seeks to
introduce materials that are an improper subject for judicial notice under Federal Rule of
Evidence 201, (2) is an improper attempt to exceed the page limits on memoranda supporting

1

Plaintiffs are Fox Television Stations, Inc., Twentieth Century Fox Film Corporation, Fox
Broadcasting Company, NBC Subsidiary (WRC-TV) LLC, NBC Studios LLC, Universal
Network Television, LLC, Open 4 Business Productions LLC, Telemundo Network Group LLC,
American Broadcasting Companies, Inc., Disney Enterprises, Inc., CBS Broadcasting Inc., CBS
Studios Inc., Allbritton Communications Company, and Gannett Co., Inc.

1

motions and to incorporate arguments not properly before this Court, and (3) seeks to introduce
new evidence at an improper time, the Court should deny the Request.
Press Releases. FilmOnX asks the Court to take judicial notice of nine press releases
FilmOnX obtained from its alleged competitor, Aereo’s, website, announcing Aereo’s launch
dates for and/or expansion into various cities around the nation. FilmOnX’s request should be
denied for two reasons. First, FilmOnX is not asking the Court to take judicial notice of the
mere fact that Aereo issued such press releases, but rather to judicially notice the contents of
those press releases detailing where Aereo’s services are currently available or will become
available. Such a request is an improper attempt to sidestep Federal Rule of Evidence 201(b)’s
mandate that a court may judicially notice a fact that is “not subject to reasonable dispute” when
it “can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” These press releases do not represent undisputed facts about where Aereo is or will
be. Rather, these facts are subject to dispute and their accuracy can be reasonably questioned.
Second, even if the press releases were judicially noticeable, they should not be
considered here since FilmOnX has not provided any reason why its evidence could not have
been presented along with its opposition to the Plaintiffs’ motion for a preliminary injunction,
which the Court granted. Schoenbohm v. F.C.C., 204 F.3d 243, 250 (D.C. Cir. 2000) (evidence
that was “previously available” is not “new evidence” supporting reconsideration); Olson v.
Clinton, 630 F. Supp. 2d 61, 63 (D.D.C. 2009) (“Even if evidence is newly raised, it is not
considered new evidence if it was previously available.”) (internal quotation marks omitted);
Bao Ge v. Li Peng, 209 F.R.D. 250, 251 (D.D.C. 2000) (denying motion for reconsideration
because the plaintiffs “failed to present any new evidence that was not previously available and
which would alter this Court’s conclusions”); see also James v. England, 226 F.R.D. 2,

2

7 (D.D.C. 2004) (“[A]rguments that should have been previously raised, but are only raised for
the first time in a motion for reconsideration, will not be entertained by this Court.”); Summitt
Investigative Serv., Inc. v. Herman, 34 F. Supp. 2d 16, 26 (D.D.C. 1998) (“Furthermore, it is a
cardinal tenet of federal-civil practice that a court — trial or appellate — will not consider
matters raised for the first time in a motion for reconsideration.”).
Hearst Case Materials. FilmOnX also asks the Court to judicially notice the docket
report and a particular pleading from the Hearst Case. FilmOnX contends that the docket and
pleading show that “there is a substantially similar pending case in the First Circuit” (Request at
3) and the District of Massachusetts court “will hear a motion for preliminary injunction –
similar to the motion brought by plaintiffs in this case – on September 18, 2013” (Memorandum
re Emergency Motion for Reconsideration (“Memo Re Recon”) at 1; Memorandum re
Emergency Motion for Stay (“Memo Re Stay”) at 1). And, in its emergency motion memoranda,
FilmOnX cites to the docket and pleading as support for the contention that “there is ongoing
litigation in the First … Circuit[] concerning the same subject matter as this lawsuit.” Memo Re
Recon at 1; see Memo Re Stay at 1.
The Court should deny FilmOnX’s request for judicial notice of the Hearst Case
materials for three reasons. First, FilmOnX is not really requesting that the Court take judicial
notice of the existence of various filings in the Hearst Case. Rather, FilmOnX is requesting that
the Court take judicial notice of the substance of those pleadings. This is evident from
statements in FilmOnX’s emergency motion memoranda about the Hearst Case’s similarity to
this case. Under Federal Rule of Evidence 201(b), a court may judicially notice a fact that is
“not subject to reasonable dispute” when it “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Here, while it may be proper for the

3

Court to take judicial notice of the fact that various documents were filed in the Hearst Case, the
contents of those filings, and the similarity between their subject matter and this case, are
“subject to reasonable dispute,” and thus the Court may not take judicial notice of more than the
fact of filing. See Mehle v. Am. Mgmt. Sys., Inc., No. 01-7197, 2002 WL 31778773, at *1 (D.C.
Cir. Dec. 4, 2002) (“The court takes judicial notice of the existence of the documents [filed in
another action], not the accuracy of any legal or factual arguments made therein.”); accord
Kahue v. Pac. Envtl. Corp., 834 F. Supp. 2d 1039, 1054 (D. Haw. 2011) (refusing to take
judicial notice of amicus briefs in other actions because “Plaintiff . . . does not appear to rely on
the proffered legal briefs . . . for any ‘adjudicative facts’ contained therein; rather, they support
Plaintiff’s legal arguments.”).
Furthermore, the Hearst docket attached to the Request provides no information that
supports the contentions for which FilmOnX relies upon in the Request, specifically, the subject
matter and claims at issue in that case. Thus, this Court would need to review the content of the
filings themselves to determine their similarity, which is an improper use of judicial notice. See
Fox Television Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138, 1142 n.8
(C.D. Cal. 2012) (denying Defendants’ request for judicial notice of amicus briefs filed in other
litigation, noting that “Defendants argue that the very existence of the briefs shows that
Defendants’ technology serves an important public interest. [Citation omitted.] However, it is
impossible to draw that conclusion without examining the content of the proffered briefs”). What
is more, the mere fact that pleadings were filed in another action involving FilmOnX’s supposed
competitor is irrelevant to the issues presently before this Court, and the Request can be denied
on that basis. See Whiting v. AARP, 637 F.3d 355, 430 (D.C. Cir. 2011) (“[T]he matters to be
noticed must be relevant . . . .”).

4

Second, to the extent that FilmOnX seeks to have this Court examine the contents of the
pleadings in the Hearst Case, the Request is an improper attempt to expand the page limits of
FilmOnX’s memoranda, as set forth in LCvR 7(e), and to incorporate by reference arguments not
properly before the Court here, such as those made by FilmOnX’s alleged competitor, Aereo.
See Crummey v. Soc. Sec. Admin., 794 F. Supp. 2d 46, 54 (D.D.C. 2011) (denying party’s
request for judicial notice to the extent it was an improper attempt “to supplement his arguments
in opposition to” the underlying motion); BarryDriller, 915 F. Supp. 2d at 1142 (“The Court
would not take judicial notice of the amicus briefs because, as Plaintiffs object, the request is an
implicit attempt to extend Defendants’ page limits without leave”) (citing Calence, LLC v.
Dimension Data Holdings, PLC, 222 F. App’x 563, 566 (9th Cir. 2007)).
Third, even if the Hearst Case materials releases were judicially noticeable, they should
not be considered here since FilmOnX has not provided any reason why its evidence could not
have been presented along with its opposition to the Plaintiffs’ motion for a preliminary
injunction, which the Court granted. Schoenbohm, 204 F.3d at 250; Olson, 630 F. Supp. 2d at
63; Bao Ge, 209 F.R.D. at 251; see also James, 226 F.R.D. at 7; Summitt Investigative Serv.,
Inc., 34 F. Supp. 2d at 26.
Conclusion. For all the foregoing reasons, Plaintiffs respectfully request that the Court
deny the Request in its entirety.

Dated: September 11, 2013
/s/ Paul Smith
Paul Smith (D.C. Bar No. 358870)
[e-mail]
JENNER & BLOCK LLP
1099 New York Avenue, NW, Suite 900
Washington, DC 20001-4412
Telephone: [phone]

5

Facsimile: [phone]
Richard L. Stone (admitted pro hac)
[e-mail]
Julie A. Shepard (admitted pro hac)
[e-mail]
Amy Gallegos (admitted pro hac)
[e-mail]
JENNER & BLOCK LLP
633 West 5th Street, Suite 3600
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs Fox Television
Stations, Inc., Twentieth Century Fox Film
Corporation, and Fox Broadcasting Company
/s/ Robert Garrett
Robert Alan Garrett (D.C. Bar No. 239681)
Hadrian R. Katz (D.C. Bar No. 931162)
Christopher Scott Morrow
(D.C. Bar No. 491925)
Murad Hussain (D.C. Bar No. 999278)
ARNOLD & PORTER LLP
555 12th St., NW
Washington, DC 20004
Telephone: [phone]
Facsimile: [phone]
James S. Blackburn (admitted pro hac)
[e-mail]
John C. Ulin (admitted pro hac)
[e-mail]
ARNOLD & PORTER LLP
777 South Figueroa Street, 44th Floor
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs NBC Subsidiary
(WRC-TV) LLC, NBC Studios LLC,
Universal Network Television LLC, Open 4
Business Productions LLC, Telemundo
Network Group LLC, American

6

Broadcasting Companies, Inc., Disney
Enterprises, Inc., Allbritton
Communications Company, CBS
Broadcasting Inc., CBS Studios Inc., and
Gannett Co., Inc.

7