UNITED STATES DISTRICT COURT

Transcription

1 Case :-cv-0-jls-bgs Document Filed 0// PageID. Page of 0 GINA L. DURHAM (Bar No. 0) gina.durham@dlapiper.com Mission Street, Suite 00 San Francisco, California 0- Tel:..00 Fax:..0 STANLEY J. PANIKOWSKI (Bar No. ) stanley.panikowski@dlapiper.com 0 B Street, Suite 00 San Diego, CA 0 Tel:..00 Fax:..0 Attorneys for Plaintiff Dr. Seuss Enterprises, L.P. DR. SEUSS ENTERPRISES, L.P., a California limited partnership, v. WEST\. Plaintiff, COMICMIX LLC, a Connecticut limited liability company; MR. GLENN HAUMAN, an individual; MR. DAVID JERROLD FRIEDMAN A/K/A DAVID GERROLD, an individual; and MR. TY TEMPLETON, an individual, Defendants. UNITED STATES DISTRICT COURT Tamar Y. Duvdevani (pro hac vice pending) tamar.duvdevani@dlapiper.com Marc E. Miller (pro hac vice pending) marc.miller@dlapiper.com Avenue of the Americas New York, New York 00-0 Tel:..00 Fax:..0 Ryan Compton (pro hac vice pending) ryan.compton@dlapiper.com James Stewart (pro hac vice pending) james.stewart@dlapiper.com 00 Eight Street, NW Washington, D.C. 00 Tel:..000 Fax:..000 SOUTHERN DISTRICT OF CALIFORNIA Case No.: -cv-0-jls-bgs PLAINTIFF DR. SEUSS ENTERPRISES, L.P. S OPPOSITION TO DEFENDANT COMICMIX LLC S REQUEST FOR JUDICIAL NOTICE PURSUANT TO FED. R. EVID. IN SUPPORT OF MOTION TO DISMISS USDC CASE NO. -CV-0-JLS-BGS

2 Case :-cv-0-jls-bgs Document Filed 0// PageID.00 Page of 0 WEST\. TABLE OF CONTENTS Page I. INTRODUCTION... II. ARGUMENT... A. Exhibits -: Kickstarter.com Webpages (collectively, the Webpages )... B. Exhibit : October, Letter (the Oct. Letter )... C. Exhibits and : The Infringing Work and Oh, The Places You ll Go!, respectively... D. Star Trek Opening Monologue (the Monologue )... E. Star Trek Episodes (the Episodes )... 0 III. CONCLUSION... -i- USDC CASE NO. -CV-0-JLS-BGS

3 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page of 0 CASES WEST\. TABLE OF AUTHORITIES Page Balanced Body Univ.y, LLC v. Zahourek Sys., Inc., No. CIV S 0 LKK/EFB, WL (E.D. Cal. Jan., )... Branch v. Tunnell, F.d (th Cir. )... Browne v. McCain, F. Supp. d 0 (C.D. Cal. 0)..., Caldwell v. Caldwell, No. C 0- PJH, 0 WL (N.D. Cal. Mar., 0)..., 0 Cavalier v. Random House, Inc., F.d (th Cir. 0)... Cohen v. Facebook, Inc., F. Supp. d 00 (N.D. Cal. )... Coto Settlement v. Eisenberg, F.d 0 (th Cir. 0)... CPI Advanced, Inc. v. Kong Byung Woo Comm. Ind, Co., Ltd., F. App x (th Cir. 0)... Fraley v. Facebook, Inc., 0 F. Supp. d (N.D. Cal. )..., Garber v. Heilman, No. CV 0 DDP (RNB), 0 WL 0 (C.D. Cal. Feb., 0)... Gerritsen v. Warner Bros. Entm t Inc., F. Supp. d 0 (C.D. Cal. )..., Koenig v. USA Hockey, Inc., No. :0 cv 0, 0 WL 0 (S.D. Ohio June, 0)... -ii- USDC CASE NO. -CV-0-JLS-BGS

4 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page of 0 TABLE OF AUTHORITIES (continued) Page Lee v. City of Los Angeles, 0 F.d (th Cir. 0)... Lee v. Corinthian Colleges, F.d (th Cir. )..., Parrino v. FHP, Inc., F.d (th Cir. )... RB Rubber Products, Inc. v. ECORE Int l., Inc., No. :-CV--AC, WL 0 (D. Or. Mar., )... Rivera v. Philip Morris, Inc., F.d (th Cir. 0)... Shaw v. Lindheim, F.d (th Cir. 0)... Swartz v. KPMG LLP, F.d (th Cir. 0)...,,, 0 Theta Chi Fraternity, Inc. v. Leland Stanford Junior Univ., No. -cv-0-rmw, WL 0 (N.D. Cal. Aug. 0, )... Trenches, Inc. v. Hanover Ins. Co., No. SACV - AG (RNBx), WL 0 (C.D. Cal. Aug. 0, )..., Von Grabe v. Sprint PCS, F. Supp. d (S.D. Cal. 0)... OTHER AUTHORITIES Fed. R. Civ. P. (b)()... passim Fed. R. Evid.... passim Fed. R. Evid. (b)...,,, 0 Fed. R. Evid. (d)..., 0 WEST\. -iii- USDC CASE NO. -CV-0-JLS-BGS

5 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page of 0 I. INTRODUCTION Plaintiff Dr. Seuss Enterprises, L.P. ( DSE ), by and through its undersigned counsel, respectfully submits this opposition to Defendant ComicMix LLC s ( ComicMix or Defendant ) Request for Judicial Notice Pursuant to Fed. R. Evid. (the RJN ) (ECF No. -) filed in support of its Motion to Dismiss Pursuant to Fed. R. Civ. P. (b)() (the Motion ). (ECF No..) ComicMix submits to the Court extrinsic materials to support its Motion, and asks this Court to take judicial notice of Exhibits through to the RJN. In addition, although not properly attached as exhibits in compliance with Fed. R. Evid., ComicMix also asks this Court to take judicial notice of () the monologue from the opening credits of the original Star Trek series, from The Smithsonian National Air and Space Museum website and YouTube.com, (RJN at ) and () eighteen individual episodes from the Star Trek television series, (Memorandum of Points and Authorities in Support of ComicMix LLC s Motion to Dismiss Pursuant to Fed. R. Civ. P. (b)() at -, n.-) ( Br. ). This additional material is only cited in Defendant s moving brief. ComicMix s RJN should be denied for several reasons, as it requests that the Court take judicial notice of: () documents that are not public records; () documents containing hearsay; () documents that are irrelevant; () documents that are not properly authenticated; () documents that lack foundation; () documents not subject to judicial notice; and () information that is deficient for failure to comply with Fed. R. Evid.. While DSE submits that the documents submitted by Defendant are largely irrelevant to the legal issues before the Court, DSE nevertheless submits that the documents attached to the RJN are not the proper subject of judicial notice and should not be considered by the Court. For the same reasons, the additional extrinsic material cited in Defendant s brief but not contained in the RJN should likewise be rejected. ///// WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

6 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page of 0 II. ARGUMENT In ruling on a Rule (b)() Motion to Dismiss, the Court generally may not look beyond the four corners of the plaintiff s complaint, with the exception of documents incorporated into the complaint by reference, and any relevant matters subject to judicial notice. Fraley v. Facebook, Inc., 0 F. Supp. d, (N.D. Cal. ); Lee v. City of Los Angeles, 0 F.d, (th Cir. 0). Under the doctrine of incorporation by reference, the Court may consider documents not attached to the complaint, provided that the complaint necessarily relies on the documents or contents thereof, and both the document s authenticity and relevance are uncontested. See Swartz v. KPMG LLP, F.d, (th Cir. 0) (citing Parrino v. FHP, Inc., F.d, 0 (th Cir. )); Coto Settlement v. Eisenberg, F.d 0, 0 (th Cir. 0). [T]o merit incorporation by reference, the complaint must refer to the content of the document and not merely its existence. RB Rubber Products, Inc. v. ECORE Int l., Inc., No. :-CV--AC, WL 0, at * (D. Or. Mar., ) (citing Branch v. Tunnell, F.d, (th Cir. ) (overruled on other grounds)). In addition, under Fed. R. Evid., a court may take judicial notice of a fact that is not subject to reasonable dispute because it: () is generally known within the trial court s territorial jurisdiction; or () can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. (b). Because the effect of judicial notice is to deprive a party of an opportunity to use rebuttal evidence, cross-examination, and argument to attack contrary evidence, caution must be used in determining that a fact is beyond controversy under Rule (b). Rivera v. Philip Morris, Inc., F.d, (th Cir. 0) (citation omitted). [T]he Ninth Circuit tends to be strict with its application of Rule (b). Von Grabe v. Sprint PCS, F. Supp. d, (S.D. Cal. 0). Further, judicial notice is not a proper basis for rejecting factual ///// WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

7 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page of 0 allegations appearing in the plaintiff s complaint. CPI Advanced, Inc. v. Kong Byung Woo Comm. Ind, Co., Ltd., F. App x, (th Cir. 0). The documents for which ComicMix requests judicial notice do not meet the requirements of Fed. R. Evid., nor the requirements of the doctrine of incorporation by reference, and are thus unsuitable for judicial notice and cannot support ComicMix s Motion. A. Exhibits -: Kickstarter.com Webpages (collectively, the Webpages ) Exhibits through are screenshots of webpages on the Kickstarter.com website, and ComicMix presents them to the Court with a bare assertion that the Webpages reflect the content of: () Defendants Kickstarter campaign as it appeared on or shortly after September 0,, but before October, ; () a page on Kickstarter s website reflecting the DMCA Takedown Notice that DSE sent to Kickstarter as it appeared on the website on December, ; and () a page on Kickstarter s website where Defendant s Kickstarter campaign webpage address redirected as of December,, respectively. (RJN at.) DSE objects to ComicMix s request for judicial notice of the Webpages because they are irrelevant, inappropriate topics, and have not been properly authenticated. Additionally, DSE further objects to judicial notice of Exhibits and because they are not necessarily relied on by DSE in its complaint (ECF No. (the Complaint or Compl. )). As a threshold matter, judicial notice of a document that is merely referenced in the complaint for use in a Motion to Dismiss is proper only when the complaint necessarily relies on that document. See Swartz, supra, at. Although Paragraphs and of the Complaint make reference to Defendants Kickstarter campaign, and Paragraphs 0 and make reference to DSE s DMCA Takedown Notice, the Complaint in no way makes any substantive reliance on Exhibits or. But even assuming DSE s Complaint necessarily relies on the Webpages, WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

8 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page of 0 ComicMix s request as to Exhibits through should still be denied. First, while websites may be proper subjects for judicial notice, courts are hesitant to take notice of information found on third party websites and routinely deny requests for judicial notice. Gerritsen v. Warner Bros. Entm t Inc., F. Supp. d 0, 0 (C.D. Cal. ). This is especially true where, as here as to Exhibit, the user-submitted content appearing on the Defendants Kickstarter webpage was created and maintained by a party to the litigation. See id. at 00- (citing Koenig v. USA Hockey, Inc., No. :0 cv 0, 0 WL 0, at * (S.D. Ohio June, 0) ( [F]ederal courts should be very reluctant to take judicial notice of information or documents that appear exclusively on websites which have been created and are maintained by one of the parties to a case unless that party is a governmental body and the website is maintained not to further the business interests of the party but to provide a source of public information. )). On September,, DSE sent a letter to Defendants concerning their unauthorized use of the DSE works. (Compl. at.) ComicMix purportedly collected Exhibit sometime after September 0, but before October,, (Affidavit of Dan Booth in Support of ComicMix LLC s Request for Judicial Notice Pursuant to Fed. R. Evid. ( Booth Aff. ) at ) (ECF No. -), when DSE submitted its DMCA Takedown Notice to Kickstarter. (Compl. at 0.) ComicMix, however, does not establish whether Exhibit accurately reflects the content of the Defendants Kickstarter webpage prior to receiving notice of DSE s claims. See Fraley, 0 F. Supp. d at (denying Facebook s request for judicial notice of documents whose relevance and authenticity were contested since it was unclear whether the particular web pages... were even in existence at the time Facebook first launched the Sponsored Stories feature or at the time Plaintiffs took the actions that rendered them subject to Sponsored Stories. ); Cohen v. Facebook, Inc., F. Supp. d 00, 0 (N.D. Cal. ) (rejecting Facebook s request to take judicial notice of various Terms of Use documents because substantial questions... WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

9 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page of 0 remain in this instance as to when various versions of the documents may have appeared on the website.... ). Nor does ComicMix establish that the content of the Defendants Kickstarter webpage was not otherwise altered prior to the collection of Exhibit. See id. Second, ComicMix improperly uses a request for judicial notice of the existence of Exhibit to support its argument that the contents of that webpage are true, and should be considered by the court for their truth namely, that Defendants Infringing Work, Oh, The Places You ll Boldly Go!, is a parody. See Lee v. Corinthian Colleges, F.d, (th Cir. ) (the Court may take notice of the existence of certain documents, but may not draw inferences based on those documents or take notice of facts that might reasonably be disputed ). DSE, of course, vigorously disputes Defendants conclusory assertion that the Infringing Work is a parody. (See Plaintiff Dr. Seuss Enterprises, L.P. s Memorandum of Points and Authorities In Opposition To Defendant ComicMix LLC s Motion To Dismiss Pursuant To Fed. R. Civ. P. (b)() ( Opp. Br. ) at -.) Third, the Webpages are irrelevant to the issue presently before the Court on ComicMix s Motion since they have no bearing on whether DSE has adequately stated claims against Defendant for copyright and/or trademark infringement. through. Accordingly, the Court should deny ComicMix s RJN as to Exhibits B. Exhibit : October, Letter (the Oct. Letter ) Defendant also requests this Court take judicial notice of the content of a October, letter sent to DSE s counsel by Defendant s counsel, which characterizes and responds to DSE s DMCA Takedown Notice, sets forth Defendants position on the fair use defense, and threatens litigation. DSE objects to judicial notice of the Oct. Letter because it is irrelevant, asserts legal conclusions, and represents a one-sided characterization of facts subject to dispute. ComicMix asks the Court to take judicial notice of the truth of the disputed facts WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

10 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page 0 of 0 and legal conclusions asserted in the Oct. Letter. However, the Court may not take judicial notice of disputed facts contained in a document, or a party s interpretation of such disputed facts. See Corinthian Colleges, F.d at ( [W]e may not, on the basis of evidence outside of the Complaint, take judicial notice of facts favorable to Defendants that could reasonably be disputed. ); Garber v. Heilman, No. CV 0 DDP (RNB), 0 WL 0, at * (C.D. Cal. Feb., 0) ( Plaintiff s request that the Court take judicial notice of his own list of encounters with the police... is denied because plaintiff s own characterization of the matters reflected in his chart does not qualify as a matter that is not subject to reasonable dispute. ) (citing Fed. R. Evid. (b)); Balanced Body Univ.y, LLC v. Zahourek Sys., Inc., No. CIV S 0 LKK/EFB, WL, at * (E.D. Cal. Jan., ) ( The court cannot take judicial notice of statements which paraphrase or summarize allegations, as such statements are arguably inaccurate, and therefore, subject to reasonable dispute. ) (citing Fed. R. Evid. (b)). ComicMix s request to have this Court draw factual conclusions based on disputed allegations should be rejected. ComicMix contends that [t]he Court may take judicial notice of the fact that counsel made particular statements in correspondence between the parties counsel referenced in the complaint. (RJN at ) (quoting Theta Chi Fraternity, Inc. v. Leland Stanford Junior Univ., No. -cv- 0-RMW, WL 0, at * (N.D. Cal. Aug. 0, ). However, ComicMix grossly mischaracterizes the Theta case by omitting the Theta court s complete holding, which actually held that: While the court takes judicial notice of the fact that counsel made particular statements in these s, the court does not take judicial notice of the truth of counsel s factual assertions in the s to the extent that the s are inconsistent with the allegations in the complaint. Id. In any event, ComicMix is wrong because [c]ommunications between counsel generally do not fall under Federal Rule of Evidence. Trenches, Inc v. ///// WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

11 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page of 0 Hanover Ins. Co., No. SACV - AG (RNBx), WL 0, at * (C.D. Cal. Aug. 0, ). Accordingly, the Court should deny ComicMix s RJN as to Exhibit. C. Exhibits and : The Infringing Work and Oh, The Places You ll Go!, respectively ComicMix requests that the Court take judicial of the contents of the Infringing Work (Exhibit ) and DSE s Oh, The Places You ll Go! (Exhibit ). Because ComicMix s request, however, suffers from two fatal flaws, it should be rejected. First, ComicMix s Motion does not ask the Court to conduct a substantial similarity analysis between the DSE works and the Infringing Work, or to dismiss DSE s copyright claim for lack of substantial similarity, and therefore infringement, as a matter of law. Rather, ComicMix asks the Court to determine whether ComicMix s unauthorized use of the protectable elements thereof is a fair use as a matter of law. (Br. at -.) As this exercise is not proper for any copyright defense advanced by ComicMix, the Court s review of the content of these works has only minimal relevance to the issue presently before the Court on ComicMix s Motion: whether Defendants unauthorized use of DSE s copyrighted material constitutes fair use as a matter of law. (See id.) As discussed in DSE s opposition brief (see Opp. Br. at -), Rule (b)() motions are particularly unsuitable for adjudicating a fair use defense to copyright infringement as a matter of law. See e.g., Browne v. McCain, F. Supp. d ComicMix also fails to address the Ninth Circuit s two-part analysis the extrinsic and intrinsic tests to determine whether two works are substantially similar. See Cavalier v. Random House, Inc., F.d, (th Cir. 0). Likewise, ComicMix does not address the inverse ratio rule, which applies here, given Defendants undisputed access to the DSE Works, justify[ing] a lower standard of proof [for DSE] to show substantial similarity. Shaw v. Lindheim, F.d, (th Cir. 0). DSE s allegations concerning infringement of the DSE Works satisfy the extrinsic test prong of substantial similarity and, thus, survive the Motion. (See Compl. at -.) WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

12 Case :-cv-0-jls-bgs Document Filed 0// PageID.0 Page of 0 0, 0 (C.D. Cal. 0) ( Generally, when analyzing a Rule (b)() motion, a court s analysis of the plaintiff s claims is limited to its allegations in the complaint. At this stage, a court does not make factual findings, nor deem material facts undisputed or admitted. Thus, in light of a court s narrow inquiry at this stage and limited access to all potentially relevant and material facts needed to undertake the analysis, courts rarely analyze fair use on a (b)() motion. ). This is because the fair use defense involves highly fact-specific inquiries. Id. As such, courts routinely reject fair use as a basis to dismiss copyright claims. Id. Accordingly, because the Court s review of the content of these two works bears only minimal relevance to fact-specific fair use factors at the pleading stage, ComicMix s request should be denied. Second, even if ComicMix were asking the Court to conduct a proper substantial similarity analysis, ComicMix asks this Court to review only some of the underlying works at issue: the Infringing Work also misappropriates key protected elements of Horton Hears a Who, How the Grinch Stole Christmas!, The Lorax, and The Sneetches and Other Stories. (Compl. at.) These works are not yet before the Court, and thus the Court cannot make a finding on the highly fact-specific fair use factors based on an incomplete record. See Browne, F. Supp. d at 0. Accordingly, the Court should deny ComicMix s RJN as to Exhibits and. D. Star Trek Opening Monologue (the Monologue ) ComicMix requests that the Court take judicial notice of the Monologue, which is not referenced in or relied upon by DSE s Complaint. Even if the Monologue were referenced in the Complaint, as stated above, judicial notice of a document that is merely referenced in the complaint for use in a Motion to Dismiss is proper only when the complaint relies on that document. See Swartz, supra, at. Further, the Monologue is not the proper subject of judicial notice because any purported facts it contains are not the type of facts which are generally WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

13 Case :-cv-0-jls-bgs Document Filed 0// PageID. Page of 0 known within the trial court s territorial jurisdiction, Fed. R. Evid. (b). Nor are those facts capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned, Fed. R. Evid. (b), since the authors of the Monologue are unknown and not stated by Defendants, and they have not offered any documents for authentication. The Monologue s proffered extrinsic facts thus lack foundation and are hearsay. Significant questions regarding the authenticity of the Monologue are also raised because Defendant has not attached any copies of the Monologue it seeks to have judicially noticed. As stated above, while websites may be proper subjects for judicial notice, courts are hesitant to take notice of information found on third party websites and routinely deny requests for judicial notice. Warner Bros. Entm t Inc., F. Supp. d at 0. That is especially true where, as here, the defendant has not attached a hard copy of the webpages referenced in their request a webpage on a museum s website and a webpage on YouTube. Federal Rule of Evidence (d) generally contemplates that a party will provide the copy of the document it seeks to have judicially noticed. Caldwell v. Caldwell, No. C 0- PJH, 0 WL, at * (N.D. Cal. Mar., 0) (denying the defendant s request for judicial notice of a museum s website as deficient for failure to comply with Fed. R. Evid. ). [W]ithout the actual web pages before it, the court is unable to pass on the nature of facts contained within the entire website, whose accuracy cannot be determined with reference to anything concrete. This is especially significant, given the changing and changeable nature of internet websites. Id. Finally, the Monologue, which constitutes intellectual property owned by a third-party, is irrelevant to this Motion. Neither the existence of the Monologue nor Defendant s use of it in The Infringing Work have any bearing on whether DSE has stated a claim for trademark and copyright infringement. ///// WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

14 Case :-cv-0-jls-bgs Document Filed 0// PageID. Page of 0 Accordingly, the Court should deny ComicMix s RJN as to the Monologue. E. Star Trek Episodes (the Episodes ) Although not properly requested in its RJN, Defendant cites to eighteen Star Trek episodes in its brief (Br. at -, n.-), apparently asking the Court to consider the Episodes content in its fair use analysis. Putting aside that Defendant did not properly request that the Court take judicial notice of these extrinsic facts, the Court should disregard them, too, because they are not the proper subject of judicial notice. First, the Episodes may not be noticed under the doctrine of incorporation by reference since none of the Episodes are referenced, much less necessarily relied upon, by DSE in its Complaint. See Swartz, supra, at. Second, the Episodes are not appropriate for judicial notice because the alleged facts they contain the content of various Star Trek television series episodes are not generally known within the trial court s territorial jurisdiction, Fed. R. Evid. (b). Nor are these facts capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned, Fed. R. Evid. (b), since the source of the Episodes are unknown and not stated by Defendants. For these reasons, the Episodes also lack foundation. Finally, Defendant has not submitted to the Court copies of any of the Episodes. Again, Federal Rule of Evidence (d) generally contemplates that a party will provide the copy of the document it seeks to have judicially noticed. Caldwell, 0 WL at *. As with Defendant s other proffered evidence, the information contained in the Episodes, regardless of their authenticity, have nothing to do with the issue before the court which is whether DSE has sufficiently stated claims for trademark and copyright infringement of DSE s own trademarks and copyrighted material against Defendant. Judicial notice of the Episodes for consideration in deciding the instant Motion is improper. ///// WEST\. -0- USDC CASE NO. -CV-0-JLS-BGS

15 Case :-cv-0-jls-bgs Document Filed 0// PageID. Page of 0 III. Accordingly, the Court should deny ComicMix s RJN as to the Episodes. CONCLUSION For the foregoing reasons, DSE respectfully submits that ComicMix s Request for Judicial Notice be denied in its entirety. Dated: January, Of Counsel: Tamar Y. Duvdevani (pro hac vice pending) Marc E. Miller (pro hac vice pending) Avenue of the Americas New York, New York 00-0 Tel:..00 Fax:..0 Ryan Compton (pro hac vice pending) James Stewart (pro hac vice pending) 00 Eight Street, NW Washington, D.C. 00 Tel:..000 Fax:..000 /s/ Gina Durham GINA L. DURHAM Mission Street, Suite 00 San Francisco, California 0- Tel:..00 Fax:..0 STANLEY J. PANIKOWSKI 0 B Street, Suite 00 San Diego, CA 0 Tel:..00 Fax:..0 Attorneys for Plaintiff Dr. Seuss Enterprises, L.P. WEST\. -- USDC CASE NO. -CV-0-JLS-BGS

16 Case :-cv-0-jls-bgs Document Filed 0// PageID. Page of 0 CERTIFICATE OF SERVICE I hereby certify that on January, I electronically filed the foregoing document by using the Court s ECF system, thereby causing a true copy thereof to be served upon counsel of record for each party to have appeared to date, as identified on the Notice of Electronic Filing. /s/ Gina Durham Gina Durham WEST\. -- USDC CASE NO. -CV-0-JLS-BGS