Digital Link - CASE #: 96-CV-20867 - 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' SUPPLEMENTAL
v. ) REQUEST TO TAKE JUDICIAL
) NOTICE UNDER FEDERAL RULES
DIGITAL LINK CORPORATION, VINITA ) OF EVIDENCE 201
GUPTA, DANIEL L. PALMER, TIMOTHY )
K. MONTGOMERY, STANLEY E. ) Date: April 18, 1997
KAZMIERCZAK, TONI BELLIN, ) Time: 9:00 a.m.
BENJAMIN W. BERRY, MOREY R. ) Judge: The Honorable
SCHAPIRA, GREGORY M. AVIS and ) Ronald M. Whyte
CHARLES R. MOORE, )
)
Defendants. )
)
___________________________________)

DEFENDANTS' SUPPLEMENTAL 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

"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). The contents of all of the Forms 3 and 4 of which the

defendants request this Court to take notice are referred to by

plaintiff in his Complaint. See Complaint ¶¶ 14, 80.

Consequently, this Court may take notice of these documents.

This Court may also take judicial notice of these Forms 3 and

4 because they have been filed with the United States Securities

and Exchange Commission ("SEC"). See In re Silicon Graphics, Inc.

Sec. Litig., [1996-97 Tr. Binder] Fed. Sec. L. Rep. (CCH) ¶ 99,325,

at 95,966 (N.D. Cal. Sept. 25, 1996) (taking judicial notice of

defendants' Forms 3 and 4). "'[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 these 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

____________________

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

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 material misrepresentations and

omissions in such documents.").

WHEREFORE, the defendants hereby request that this Court take

judicial notice of the documents attached hereto as the following

exhibits:

Exhibit A: Forms 3 and 4 for Gregory M. Avis for the
time period of January 1994-October 1994.

Exhibit B: Forms 3 and 4 for Toni M. Bellin for the
time period of January 1994-November 1995.

Exhibit C: Forms 4 for Benjamin W. Berry for the
time period of January 1994-May 1995.

Exhibit D: Forms 3 and 4 for Vinita Gupta for the
time period of January 1994-October 1995.

Exhibit E: Forms 3 and 4 for Stanley E. Kazmierczak for
the time period of January 1994-November 1995.

Exhibit F: Forms 3 and 4 for Timothy K. Montgomery for
the time period of January 1994-August 1995.

Exhibit G: Forms 3 and 4 for Charles R. Moore for the
time period of January 1994-November 1995.

Exhibit H: Forms 3 and 4 for Daniel L. Palmer for the
time period of January 1994-November 1995.

Exhibit I: Forms 3 and 4 for Morey R. Schapira for the
time period of August 1994-August 1995.

Dated: April 4, 1997 WILSON, SONSINI, GOODRICH & ROSATI

By _______________________________
Daniel W. Turbow

Attorneys for Defendants

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

8 May 1997