Motion for Leave to File Request for Judicial Notice filed by Think Computer Corporation. (Attachments: # (1) Supplement, # (2) Declaration)(Cable, Marvin) (Filed on 5/18/2012) Text modified on 5/18/2012 conforming to posted document caption (bw, COURT STAFF).
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Page 1 Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page1 of 5
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Michael Brooks Carroll (Bar #54904)
Kevin A. Flautt (Bar #257892)
LAW OFFICES OF MICHAEL BROOKS CARROLL
300 Montgomery Street, Suite 650
San Francisco, California 94104
Telephone: (415) 788-7600
Facsimile: (415) 421-7379
carroll_law@sbcglobal.net
Marvin Cable, Esq. (BBO #680968)
LAW OFFICES OF MARVIN CABLE
P.O. Box 1630
Northampton, MA 01061
Telephone: (413) 268-6500
Facsimile: (413) 268-6500
law@marvincable.com
Attorneys for Plaintiff
THINK COMPUTER CORPORATION
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
San Jose Division
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THINK COMPUTER CORPORATION,
Plaintiff,
v.
ROBERT VENCHIARUTTI, et al.,
Defendants.
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)
)
)
)
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)
Case No. CV11-05496-HRL
MOTION FOR LEAVE TO FILE
REQUEST FOR JUDICIAL NOTICE
Before the Honorable Howard R. Lloyd
Complaint Filed: November 14, 2011
First Amended Complaint Filed: January 31, 2012
Trial Date: None Yet Set
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MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRLPage 2 Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page2 of 5
INTRODUCTION
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Plaintiff respectfully submits this administrative motion for permission to file the proposed
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Request for Judicial Notice (“RJN”) filed concurrently herewith. In the RJN, Plaintiff Think Computer
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Corporation hereby requests that this Court take judicial notice of exhibits, made up of official
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correspondence from the State of California; Plaintiff’s seller’s permit granted by the California State
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Board of Equalization “authorized pursuant to Sales and Use Tax Law to engage in the business of
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selling tangible personal property,” including but not limited to FaceCash barcode scanners, FaceCash
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Point Of Sale (POS) systems and various types of computer hardware; Plaintiff’s money transmission
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licenses issued by the States of Alabama and Idaho and granting rights, including but not limited to
“property rights” to conduct money transmission business, under the respective laws of each state as
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stated on such money transmission licenses; and excerpts of the official money transmission license
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application forms for various states listed in Schedule B of the First Amended Complaint (FAC),
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inquiring as to money transmission licenses denied, rejected or revoked by other states. As explained
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herein, the submitted exhibits directly support Plaintiff’s due process and commerce cause claims, and
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are admissible under Federal Rules of Evidence via a request for judicial notice.
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ARGUMENT
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In Plaintiff’s First Amended Complaint, Plaintiff makes three claims: a due process claim and
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two commerce clause claims. The exhibits in the RJN provide further support on each of Plaintiff’s
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three claims.
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Specifically, Exhibit A, the official governmental record dated April 27, 2012 of the official
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final action taken by the State of California on April 19 (after the motion to dismiss hearing on this
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matter) to deny Plaintiff’s governmental claim arising out of the same subject matter as this action,
which official record supports the ripeness of Plaintiff’s claims. The precursor to Exhibit A, the State’s
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MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRLPage 3 Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page3 of 5
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letter to Plaintiff dated March 30, 2012 (a true copy of which is attached as Exhibit B to the RJN)
notifying Plaintiff that “the court system is the appropriate means for resolution of these claims” and
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that his governmental claim would be denied at the Claims Board’s upcoming April 19 hearing was
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presented to this Court and discussed at the April 17, 2012 motion to dismiss hearing, but confirmation
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of such now final governmental action by the State was not mailed to Plaintiff until April 28, 2012 and
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could therefore not be provided to the Court any earlier. Accordingly, Exhibits A and B should now be
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admitted by judicial notice as further showing that Plaintiff’s claims are now ripe and that it would be
futile to require Plaintiff to do more before suing, despite Defendants’ contention otherwise.
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Exhibit C, the official record of the California State Board of Equalization’s granting of a
“Seller’s Permit” to Plaintiff, supports Plaintiff’s due process claim, that Plaintiff has a presently
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existing property right at stake and placed in jeopardy by the state action challenged by Plaintiff in this
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lawsuit.
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Exhibits D and E, the official records of the governmental actions of the states of Alabama and
Idaho granting money transmission licenses to Plaintiff, further support Plaintiff’s due process claim,
that Plaintiff has a presently existing property right at stake and placed in jeopardy by the state action
challenged by Plaintiff in this lawsuit. Further, these exhibits are referred to in FAC ¶ 56 as the “valid
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MTLs” outside of California.
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Exhibits F through I, excerpts from the official governmental documents of the states of
Georgia, Kansas, Rhode Island and Washington constituting the application forms for a money
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transmitter’s business license, further support the ripeness of Plaintiff’s claims by illustrating the
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inevitable jeopardy to Plaintiff that would have ensued from the due process permitted by statute under
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the Money Transmission Act, and therefore also directly support the substantive elements of Plaintiff’s
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due process and commerce clause claims. Further, these exhibits are examples of the types of “MTL
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MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRLPage 4 Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page4 of 5
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applications” that “require the applicant to indicate if a license has ever been rejected for any reason”
referenced in FAC ¶ 52.
Good cause exists for granting leave to Plaintiff to submit these exhibits after the April 17
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hearing on the motion to dismiss in that Exhibit A, the confirmation of Exhibit B which was submitted
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at the hearing, was not then available, and Exhibits C through I are official records of governmental
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actions that are directly responsive to the “Plaintiff has no present property rights” argument made by
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the State Defendants at such hearing and the Court’s questions regarding the same.
Importantly, the Court is allowed to take such judicial notice of exhibits in the RJN. “Under
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Fed. R. Evid. 201, a court may take judicial notice of ‘matters of public record.’ Mack v. South Bay
Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986).” Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir.
12
2001). Importantly, “a court may take judicial notice of ‘records and reports of administrative bodies.’
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Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953).” Mack v.
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South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. Cal. 1986).
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Also, the exhibits are all self-authenticating per Federal Rule of Evidence 902. Exhibit A is selfauthenticating per Rule 902(1), as it bears both the seal of the State of California and a signature.
Exhibits B and C are self-authenticating per Rule 902(5), as they are official publications of the State of
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California and bear the seal of the State Board of Equalization of the State of California. Exhibits D is
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self-authenticating per Rule 902(1), as it bears both the seal of the State of Alabama and a signature.
Exhibit E is self-authenticating per Rule 902(1), as it bears both the seal of the State of Idaho and a
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signature. Exhibit F is self-authenticating per Rule 902(5), and bears the seal of the State of Georgia.
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Exhibit G is self-authenticating per Rule 902(5), and bears the seal of the State of Kansas. Exhibit H is
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self-authenticating per Rule 902(5), and bears the seal of the State of Rhode Island. Exhibit I is self-
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authenticating per Rule 902(5), and bears the seal of the State of Washington.
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MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRLPage 5 Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page5 of 5
CONCLUSION
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Plaintiff respectfully requests that its administrative motion be granted.
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Respectfully submitted on May 17, 2012,
FOR THE PLAINTIFF:
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Marvin Cable, Esq.
BBO#: 680968
LAW OFFICES OF MARVIN CABLE
P.O. Box 1630
Northampton, MA 01061
P: (413) 268-6500
F: (413) 268-6500
E: law@marvincable.com
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CERTIFICATE OF SERVICE
I hereby certify that on May 17, 2012, the foregoing document, filed through the ECF system,
will be sent electronically to the registered participants as identified on the Notice of Electronic Filing,
and paper copies will be served via first-class mail to those indicated as non-registered participants.
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Marvin Cable, Esq.
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MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRL
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Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page1 of 5
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Michael Brooks Carroll (Bar #54904)
Kevin A. Flautt (Bar #257892)
LAW OFFICES OF MICHAEL BROOKS CARROLL
300 Montgomery Street, Suite 650
San Francisco, California 94104
Telephone: (415) 788-7600
Facsimile: (415) 421-7379
carroll_law@sbcglobal.net
Marvin Cable, Esq. (BBO #680968)
LAW OFFICES OF MARVIN CABLE
P.O. Box 1630
Northampton, MA 01061
Telephone: (413) 268-6500
Facsimile: (413) 268-6500
law@marvincable.com
Attorneys for Plaintiff
THINK COMPUTER CORPORATION
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
San Jose Division
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12
13
14
15
16
17
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THINK COMPUTER CORPORATION,
Plaintiff,
v.
ROBERT VENCHIARUTTI, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. CV11-05496-HRL
MOTION FOR LEAVE TO FILE
REQUEST FOR JUDICIAL NOTICE
Before the Honorable Howard R. Lloyd
Complaint Filed: November 14, 2011
First Amended Complaint Filed: January 31, 2012
Trial Date: None Yet Set
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20
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MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRL
PDF Page 3
Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page2 of 5
INTRODUCTION
1
2
Plaintiff respectfully submits this administrative motion for permission to file the proposed
3
Request for Judicial Notice (“RJN”) filed concurrently herewith. In the RJN, Plaintiff Think Computer
4
Corporation hereby requests that this Court take judicial notice of exhibits, made up of official
5
correspondence from the State of California; Plaintiff’s seller’s permit granted by the California State
6
Board of Equalization “authorized pursuant to Sales and Use Tax Law to engage in the business of
7
selling tangible personal property,” including but not limited to FaceCash barcode scanners, FaceCash
8
Point Of Sale (POS) systems and various types of computer hardware; Plaintiff’s money transmission
9
10
11
licenses issued by the States of Alabama and Idaho and granting rights, including but not limited to
“property rights” to conduct money transmission business, under the respective laws of each state as
12
stated on such money transmission licenses; and excerpts of the official money transmission license
13
application forms for various states listed in Schedule B of the First Amended Complaint (FAC),
14
inquiring as to money transmission licenses denied, rejected or revoked by other states. As explained
15
herein, the submitted exhibits directly support Plaintiff’s due process and commerce cause claims, and
16
are admissible under Federal Rules of Evidence via a request for judicial notice.
17
18
ARGUMENT
19
20
In Plaintiff’s First Amended Complaint, Plaintiff makes three claims: a due process claim and
21
two commerce clause claims. The exhibits in the RJN provide further support on each of Plaintiff’s
22
three claims.
23
Specifically, Exhibit A, the official governmental record dated April 27, 2012 of the official
24
final action taken by the State of California on April 19 (after the motion to dismiss hearing on this
25
26
27
28
matter) to deny Plaintiff’s governmental claim arising out of the same subject matter as this action,
which official record supports the ripeness of Plaintiff’s claims. The precursor to Exhibit A, the State’s
1
MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRL
PDF Page 4
Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page3 of 5
1
2
letter to Plaintiff dated March 30, 2012 (a true copy of which is attached as Exhibit B to the RJN)
notifying Plaintiff that “the court system is the appropriate means for resolution of these claims” and
3
that his governmental claim would be denied at the Claims Board’s upcoming April 19 hearing was
4
presented to this Court and discussed at the April 17, 2012 motion to dismiss hearing, but confirmation
5
of such now final governmental action by the State was not mailed to Plaintiff until April 28, 2012 and
6
could therefore not be provided to the Court any earlier. Accordingly, Exhibits A and B should now be
7
8
admitted by judicial notice as further showing that Plaintiff’s claims are now ripe and that it would be
futile to require Plaintiff to do more before suing, despite Defendants’ contention otherwise.
9
10
11
Exhibit C, the official record of the California State Board of Equalization’s granting of a
“Seller’s Permit” to Plaintiff, supports Plaintiff’s due process claim, that Plaintiff has a presently
12
existing property right at stake and placed in jeopardy by the state action challenged by Plaintiff in this
13
lawsuit.
14
15
16
17
Exhibits D and E, the official records of the governmental actions of the states of Alabama and
Idaho granting money transmission licenses to Plaintiff, further support Plaintiff’s due process claim,
that Plaintiff has a presently existing property right at stake and placed in jeopardy by the state action
challenged by Plaintiff in this lawsuit. Further, these exhibits are referred to in FAC ¶ 56 as the “valid
18
MTLs” outside of California.
19
20
21
Exhibits F through I, excerpts from the official governmental documents of the states of
Georgia, Kansas, Rhode Island and Washington constituting the application forms for a money
22
transmitter’s business license, further support the ripeness of Plaintiff’s claims by illustrating the
23
inevitable jeopardy to Plaintiff that would have ensued from the due process permitted by statute under
24
the Money Transmission Act, and therefore also directly support the substantive elements of Plaintiff’s
25
due process and commerce clause claims. Further, these exhibits are examples of the types of “MTL
26
27
28
2
MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRL
PDF Page 5
Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page4 of 5
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2
3
applications” that “require the applicant to indicate if a license has ever been rejected for any reason”
referenced in FAC ¶ 52.
Good cause exists for granting leave to Plaintiff to submit these exhibits after the April 17
4
hearing on the motion to dismiss in that Exhibit A, the confirmation of Exhibit B which was submitted
5
at the hearing, was not then available, and Exhibits C through I are official records of governmental
6
actions that are directly responsive to the “Plaintiff has no present property rights” argument made by
7
8
the State Defendants at such hearing and the Court’s questions regarding the same.
Importantly, the Court is allowed to take such judicial notice of exhibits in the RJN. “Under
9
10
11
Fed. R. Evid. 201, a court may take judicial notice of ‘matters of public record.’ Mack v. South Bay
Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986).” Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir.
12
2001). Importantly, “a court may take judicial notice of ‘records and reports of administrative bodies.’
13
Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953).” Mack v.
14
South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. Cal. 1986).
15
16
17
Also, the exhibits are all self-authenticating per Federal Rule of Evidence 902. Exhibit A is selfauthenticating per Rule 902(1), as it bears both the seal of the State of California and a signature.
Exhibits B and C are self-authenticating per Rule 902(5), as they are official publications of the State of
18
California and bear the seal of the State Board of Equalization of the State of California. Exhibits D is
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21
self-authenticating per Rule 902(1), as it bears both the seal of the State of Alabama and a signature.
Exhibit E is self-authenticating per Rule 902(1), as it bears both the seal of the State of Idaho and a
22
signature. Exhibit F is self-authenticating per Rule 902(5), and bears the seal of the State of Georgia.
23
Exhibit G is self-authenticating per Rule 902(5), and bears the seal of the State of Kansas. Exhibit H is
24
self-authenticating per Rule 902(5), and bears the seal of the State of Rhode Island. Exhibit I is self-
25
authenticating per Rule 902(5), and bears the seal of the State of Washington.
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3
MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRL
PDF Page 6
Case5:11-cv-05496-HRL Document43 Filed05/18/12 Page5 of 5
CONCLUSION
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Plaintiff respectfully requests that its administrative motion be granted.
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Respectfully submitted on May 17, 2012,
FOR THE PLAINTIFF:
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Marvin Cable, Esq.
BBO#: 680968
LAW OFFICES OF MARVIN CABLE
P.O. Box 1630
Northampton, MA 01061
P: (413) 268-6500
F: (413) 268-6500
E: law@marvincable.com
12
13
14
15
CERTIFICATE OF SERVICE
I hereby certify that on May 17, 2012, the foregoing document, filed through the ECF system,
will be sent electronically to the registered participants as identified on the Notice of Electronic Filing,
and paper copies will be served via first-class mail to those indicated as non-registered participants.
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Marvin Cable, Esq.
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MOTION FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE - Case No. CV11-05496-HRL
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