Digital Link - CASE #: 96-CV-20867 - DEFENDANTS' REQUEST TO TAKE JUDICIAL NOTICE

Stanford University Law School - Securities Class Action Clearinghouse

[Web note: Page formatting approximates, but does not match exactly, that of filed paper document.]

STEVEN M. SCHATZ, State Bar # 118356
TIMOTHY T. SCOTT, State Bar # 126971
THOMAS J. MARTIN, State Bar # 150039
DANIEL W. TURBOW, State Bar # 175015
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Telephone: (415) 493-9300

Attorneys for Defendants
VINITA GUPTA, DANIEL L. PALMER,
TIMOTHY K. MONTGOMERY, STANLEY E.
KAZMIERCZAK, TONI BELLIN, BENJAMIN W.
BERRY, MOREY R. SCHAPIRA, GREGORY M. AVIS,
CHARLES R. MOORE and DIGITAL LINK CORPORATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

GEORGE GENNA, On Behalf of Himself ) CASE NO. C-96-20867-RMW (EAI)
and All Others Similarly Situated, )
) CLASS ACTION
Plaintiff, )
) DEFENDANTS' REQUEST TO
v. ) TAKE JUDICIAL NOTICE UNDER
) FEDERAL RULES OF EVIDENCE
DIGITAL LINK CORPORATION, VINITA ) 201
GUPTA, DANIEL L. PALMER, TIMOTHY )
K. MONTGOMERY, STANLEY E. ) Date: February 21, 1997
KAZMIERCZAK, TONI BELLIN, ) Time: 9:00 a.m.
BENJAMIN W. BERRY, MOREY R. ) Judge: The Honorable Ronald
SCHAPIRA, GREGORY M. AVIS and ) M. Whyte
CHARLES R. MOORE, )
)
Defendants. )
)
___________________________________)

DEFENDANTS' REQUEST TO TAKE
JUDICIAL NOTICE UNDER FEDERAL
RULES OF EVIDENCE 201
C-96-20867-RMW (EAI)

Defendants Digital Link Corporation ("Digital Link"), Vinita

Gupta, Daniel L. Palmer, Timothy K. Montgomery, Stanley E.

Kazmierczak, Toni Bellin, Benjamin W. Berry, Morey R. Schapira,

Gregory M. Avis and Charles R. Moore, (collectively the "Digital

Link defendants"), hereby request that this Court take judicial

notice of the documents specified herein under Fed. R. Evid. 201.

This Court may consider on a motion to dismiss matters referred to

in the complaint. See, e.g., Branch v. Tunnell, 14 F.3d 449, 454

(9th Cir.) ("[D]ocuments whose contents are alleged in a complaint

and whose authenticity no party questions, but which are not

physically attached to the pleading, may be considered in ruling on

a Rule 12(b)(6) motion to dismiss."), cert. denied, 114 S. Ct. 2704

(1994). All of the documents which the defendants request this

Court to take notice of, other than Digital Link's report on Form

10-Q for the quarter ended September 30, 1995, are cited by

plaintiff in his Complaint. See Complaint ¶¶ 56, 78.

Consequently, this Court may take notice of these documents.

This Court may also take judicial notice of Digital Link's

filings with the United States Securities and Exchange Commission

("SEC"). "'[W]hen passing on a motion attacking the legal efficacy

of the plaintiff's statement of his claim, the court may properly

look beyond the complaint only to items in the record of the case

or to matters of general public record.'" Emrich v. Touche Ross &

Co., 846 F.2d 1190, 1198 (9th Cir. 1988) (emphasis added). It is

indisputable that Digital Link's filings with the SEC are "matters

of public record." 17 C.F.R. § 240.0-3. Accord In re Valence

Tech. Sec. Litig., No. C 95-20459 JW, 1996 WL 37788, *3 (N.D. Cal.

Jan. 23, 1996) ("[A] district court deciding a motion to dismiss a

securities fraud action 'may review and consider public disclosure

documents required by law to be and which actually have been filed

with the SEC....'")¹; Kramer v. Time Warner Inc., 937 F.2d 767, 769-

770 (2d Cir. 1991) ("We hold that a district court may consider

relevant documents required by the securities laws to be filed with

the [SEC] in determining a motion to dismiss a complaint alleging

____________________

¹ A copy of In re Valence Tech. Sec. Litig., No. C 95-20459
JW, 1996 WL 37788 (N.D. Cal. Jan. 23, 1996) is attached as Ex. 6 to
the Declaration of Daniel W. Turbow in support of defendants'
Motion to Dismiss filed concurrently herewith.

DEFENDANTS' REQUEST TO TAKE
JUDICIAL NOTICE UNDER FEDERAL
RULES OF EVIDENCE 201
C-96-20867-RMW (EAI)
-2-

material misrepresentations and omissions in such documents.").

All of the documents which the defendants request this Court to

take judicial notice of are Digital Link's filings with the SEC.

WHEREFORE, the defendants hereby request that this Court take

judicial notice of the documents attached to the Declaration of

Daniel W. Turbow as the following exhibits:

Exhibit A: Digital Link's report on Form 10-Q for the
quarter ended September 30, 1994;

Exhibit B: Digital Link's report on Form 10-K for the
fiscal year ended December 31, 1994;

Exhibit C: Digital Link's report on Form 10-Q for the
quarter ended March 31, 1995;

Exhibit D: Digital Link's report on Form 10-Q for the
quarter ended June 30, 1995; and

Exhibit E: Digital Link's report on Form 10-Q for the
quarter ended September 30, 1995.

Dated: January 3, 1997 WILSON, SONSINI, GOODRICH & ROSATI

By _______________________________
Daniel W. Turbow

Attorneys for Defendants

DEFENDANTS' REQUEST TO TAKE
JUDICIAL NOTICE UNDER FEDERAL
RULES OF EVIDENCE 201
C-96-20867-RMW (EAI)
-3-

8 May 1997