Clark v. The Walt Disney Company et al

Filing 12

MOTION re 11 MOTION to Dismiss REQUEST FOR JUDICAL NOTICE by Defendants Toys 'R Us, The Walt Disney Company, Jakks Pacific, Inc., Play Along Toys, KB Toys. (Kinsel, Grant)

Clark v. The Walt Disney Company et al

Doc. 12

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

AARON CLARK, Plaintiff, v. THE WALT DISNEY COMPANY; JAKKS PACIFIC, INC.; PLAY ALONG TOYS; KB TOYS; AMAZON.COM; and TOYS `R US, Defendants.

Case No. 2:08CV982

MOTION TO TAKE JUDICIAL NOTICE FILED IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

LACA_2085788.1

Dockets.Justia.com

Defendants JAKKS Pacific, Inc., Play Along Toys, and Toys "R" Us, respectfully submit this Motion to Take Judicial Notice filed in support of Defendant's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6). The basis for this motion is set forth in the accompanying Memorandum of Law.

Dated: January 2, 2008

Respectfully submitted, By: /s/ Michael C. Lueder Michael C. Lueder Foley & Lardner LLP 777 E. Wisconsin Ave. Milwaukee, WE 53202 Tel: [phone] Trial Attorney /s/ Grant E. Kinsel Grant Kinsel (Pro Hac Vice) Foley & Lardner LLP 555 South Flower St., Suite 3500 Los Angeles, CA 90071 Tel: [phone] Attorneys for JAKKS Pacific, Inc., Play Along Toys, KB Toys, and Toys "R" Us, The Walt Disney Company

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LACA_2085788.1

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Defendants respectfully request the Court to take judicial notice of the materials set forth below on the grounds described below: Kinsel Decl. Ex. 1, U.S. Patent No. 5,548,272, on the grounds that this document was attached as Exhibit "H" to the Complaint. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001) (Court may take judicial notice of materials integral to complaint); F.R.E. 201. Kinsel Decl. Exs. 2 and 3, on the grounds that these documents were attached as Exhibits "A" and "B" to the Complaint. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001) (Court may take judicial notice of materials intergral to complaint); F.R.E. 201. Kinsel Decl. Ex. 4 on the grounds that these materials are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. F.R.E. 201. Kinsel Decl. Ex. 5 on the grounds that portions of these materials were attached as Exhibit "H" to the Complaint. "It is well established that a Rule 12(b)(6) motion attacks the sufficiency of the pleadings, and a court ordinarily may not consider documents outside the four corners of the complaint. Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir.1997). However, documents a defendant attaches to a motion to dismiss are considered part of the pleadings if they are (1) referred to in the plaintiff's complaint and (2) are central to his claims. Id. `Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document upon which it relied.'" Doe v. SexSearch.com, 502 F.Supp.2d 719, 728 (N.D. Ohio 2007); see also, Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001).

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Dated: January 2, 2008

Respectfully submitted, By: /s/ Michael C. Lueder Michael C. Lueder Foley & Lardner LLP 777 E. Wisconsin Ave. Milwaukee, WE 53202 Tel: [phone] Trial Attorney /s/ Grant E. Kinsel Grant Kinsel (Pro Hac Vice) Foley & Lardner LLP 555 South Flower St., Suite 3500 Los Angeles, CA 90071 Tel: [phone] Attorneys for JAKKS Pacific, Inc., Play Along Toys, KB Toys, and Toys "R" Us, The Walt Disney Company

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LACA_2085788.1

CERTIFICATE OF SERVICE I hereby certify that the counsel of record who are deemed to have consented to electronic service are being served today with a copy of this document via the Court's CM/ECF system per Local Rule 5.2. Any other counsel of record will be served by electronic mail, facsimile transmission and/or first class mail on this same date. Dated: January 2, 2009 Brian Edward Dickerson The Dickerson Law Group 5003 Horizons Drive Suite 200 Upper Arlington , OH 43220 614-339-5370 Fax: [phone] [e-mail] Kevin R Conners 5003 Horizons Drive Suite 101 Columbus , OH 43220 614-562-5877 [e-mail] Sharlene I Chance The Dickerson Law Group 5003 Horizons Drive Suite 200 Columbus , OH 43220 614-339-5370 Fax: [phone] [e-mail] /s/ Grant E. Kinsel Attorneys for Plaintiff Aaron Clark

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