Jeff Jonah v. Kimberly-Clark Corporation et al

Northern District of California, cand-4:2015-cv-03243

Request for Judicial Notice re {{27}} MOTION to Dismiss AND STRIKE AMENDED COMPLAINT, OR, IN THE ALTERNATIVE, MOTION FOR STAY; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Kimberly-Clark Corporation, Kimberly-Clark Global Sales, LLC., Kimberly-Clark Worldwide, Inc.

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Case4:15-cv-03243-PJH Document28 Filed09/02/15 Page1 of 4 1 Amy P. Lally, SBN 198555 alally@sidley.com 2 Darlene M. Cho, SBN 251167 dcho@sidley.com 3 SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 4 Los Angeles, California 90013 Telephone: (213) 896-6000 5 Facsimile: (213) 896-6600 6 Attorneys for Defendants 7 KIMBERLY-CLARK CORPORATION; KIMBERLY-CLARK GLOBAL SALES, 8 LLC; and KIMBERLY-CLARK WORLDWIDE, INC. 9 10 UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 12 13 JEFF JONAH, an individual, on behalf of) Case No. 15-cv-03243-PJH 14 himself, the general public and those) similarly situated,) Assigned to: Hon. Phyllis J. Hamilton 15) Plaintiff,) 16) DEFENDANTS’ REQUEST FOR v.) JUDICIAL NOTICE IN SUPPORT OF 17) MOTION TO DISMISS AND STRIKE KIMBERLY-CLARK CORPORATION;) AMENDED COMPLAINT, OR, IN THE 18 KIMBERLY-CLARK WORLDWIDE,) ALTERNATIVE, MOTION FOR STAY INC.; KIMBERLY-CLARK GLOBAL) 19 SALES LLC; and DOES 1 through 50) Date: October 7, 2015) Time: 9:00 a.m. 20 Defendants.) Place: Courtroom 3) 21 22 23 24 25 26 27 28 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document28 Filed09/02/15 Page2 of 4 1 Defendants Kimberly-Clark Corporation, Kimberly Clark Global Sales, LLC and Kimberly-2 Clark Worldwide, Inc. ("Defendants" or "Kimberly-Clark") respectfully request that the Court take 3 judicial notice pursuant to Federal Rule of Evidence 201(b) of the following: (1) a letter from 4 Robert A. Villee, the Executive Director of the Plainfield Area Regional Sewerage Authority in 5 Middlesex, New Jersey, regarding Kimberly-Clark’s flushable wipes products, a true and correct 6 copy of which is attached hereto as Exhibit 1 (the "Villee Letter"); and (2) Appellant Jennifer 7 Davidson’s Mediation Questionnaire filed in Davidson v. Kimberly-Clark Corp., et al., 9th Cir. Case 8 No. 15-16173, a true and correct copy of which is attached hereto as Exhibit 2 ("Davidson’s 9 Mediation Questionnaire"). 10 I. Judicial Notice May Be Taken of the Villee Letter 11 The Court is permitted to take judicial notice of public records, including such documents as 12 city ordinances and other public and municipal records, including letters from official public bodies. 13 See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (holding that "[a] court may take 14 judicial notice of "matters of public record"); Gens v. Wachovia Mortgage Corp., No. CV10–01073 15 JF (HRL), 2010 U.S. Dist. LEXIS 54932, at *6-7 n.4 (N.D. Cal. May 12, 2010) (taking judicial 16 notice of a letter issued by the Office of Thrift Supervision confirming World Savings’ request to 17 change its name to Wachovia); Fed. R. Evid. 201(b) (Judicial notice may be taken of a fact "not 18 subject to reasonable dispute in that it is capable of accurate and ready determination by resort to 19 sources whose accuracy cannot reasonably be questioned."); see also Stitt v. San Francisco Mun. 20 Transp. Agency, 12-CV-03704 YGR, 2013 U.S. Dist. LEXIS 3541, at *8 (N.D. Cal. Jan. 8, 2013) 21 (holding that "a court may take judicial notice of laws, regulations, and rules such as city ordinances 22 because they are matters of public record"); Santa Monica Food Not Bombs v. City of Santa Monica, 23 450 F.3d 1022, 1025 (9th Cir. 2006) (taking judicial notice of ordinances, event permit applications, 24 and indemnity agreements which were on file with the city clerk of the City of Santa Monica or may 25 be accessed on the city’s official website). 26 Because the Villee Letter is an official city document, it is a matter of public record, not 27 subject to reasonable dispute and is capable of accurate and ready determination by resort to sources 28 whose accuracy cannot reasonably be questioned. The facts within the letter are subject to the 1 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE CASE NO. 15-CV-03243-PJH Case4:15-cv-03243-PJH Document28 Filed09/02/15 Page3 of 4 1 hearsay exception for public records, as a public record setting out the "office’s activities" and 2 Plaintiff cannot "show that the source of the information or other circumstances indicate a lack of 3 trustworthiness." Fed. R. Evid. 803(8). The letter also is offered for the non-hearsay purpose of 4 showing that at least one municipal water treatment agency has made an official pronouncement 5 specifically regarding Kimberly-Clark’s flushable moist wipes at issue in the above referenced 6 action that the products are suitable for flushing, which is how Plaintiff has defined "flushable." 7 II. Judicial Notice May Be Taken of Davidson’s Mediation Questionnaire 8 It is well-settled that the Court may take judicial notice of court documents already in the 9 public record. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); Reyn's Pasta 10 Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Accordingly, judicial notice of 11 Davidson’s Mediation Questionnaire is proper. 12 13 Dated: September 2, 2015 SIDLEY AUSTIN LLP Amy P. Lally 14 Darlene M. Cho 15 By:/s/Amy P. Lally 16 Amy P. Lally Kimberly-Clark Corporation; Kimberly-Clark 17 Global Sales, LLC; and Kimberly-Clark Worldwide, Inc. 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE CASE NO. 15-CV-03243-PJH