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`Case 5:18-md-02834-BLF Document 414 Filed 04/24/19 Page 1 of 5
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`J. DAVID HADDEN (CSB No. 176148)
`dhadden@fenwick.com
`SAINA S. SHAMILOV (CSB No. 215636)
`sshamilov@fenwick.com
`TODD R. GREGORIAN (CSB No. 236096)
`tgregorian@fenwick.com
`PHILLIP J. HAACK (CSB No. 262060)
`phaack@fenwick.com
`RAVI R. RANGANATH (CSB No. 272981)
`rranganath@fenwick.com
`CHIEH TUNG (CSB No. 318963)
`ctung@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone:
`650.988.8500
`Facsimile:
`650.938.5200
`
`Attorneys for AMAZON.COM, INC.
`and AMAZON WEB SERVICES, INC.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
` Case No.: 5:18-md-02834-BLF
`
`Case No.: 5:18-cv-00767-BLF
`REQUEST FOR JUDICIAL NOTICE
`IN SUPPORT OF MOTION OF
`AMAZON.COM, INC. AND AMAZON
`WEB SERVICES, INC. FOR
`JUDGMENT ON THE PLEADINGS
`
`Date:
` October 3, 2019
`Time:
` 9:00 am.
`Courtroom: 3, 5th Floor
`Judge:
`Hon. Beth Labson Freeman
`
`
`IN RE: PERSONALWEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION,
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs,
`
`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
`
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Counterclaimants,
`
`v.
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`
`Counterdefendants.
`
`REQUEST FOR JUDICIAL NOTICE ISO MOTION FOR
`JUDGMENT ON THE PLEADINGS
`
`
`
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`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
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`FENWICK & WEST LLP
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`

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`Case 5:18-md-02834-BLF Document 414 Filed 04/24/19 Page 2 of 5
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`Amazon.com, Inc. and Amazon Web Services, Inc. (collectively “Amazon”) hereby request
`that the Court take judicial notice of the following materials under Federal Rule of Evidence 201:
`1.
`Exhibit 1 is a true and correct copy of a License Agreement Between Kinetech, Inc.
`and Digital Island, Inc., dated September 1, 2000, produced in this case with Bates Nos.
`PERSONALWEB006795-6816.
`2.
`Exhibit 2 is a true and correct copy of a February 26, 2019 stipulation filed by the
`parties in this action, Dkt. 369.
`3.
`Exhibit 3 is a true and correct copy of an excerpt of PersonalWeb’s opposition to
`Amazon’s summary judgment motion in this action, Dkt. 334, Dkt. 341-18.
`4.
`Exhibit 4 is a true and correct copy of the Declaration of Patrick McClory in support
`of PersonalWeb’s opposition to Amazon’s motion for summary judgment, Dkt. 338.
`5.
`Exhibit 5 is a true and correct copy of the Declaration of Erik De La Iglesia in
`support of PersonalWeb’s opposition to Amazon’s motion for summary judgment, Dkt. 336.
`6.
`Exhibit 6 is a true and correct copy of PersonalWeb’s sur-reply to Amazon’s
`summary judgment motion in this action, Dkt. 354-1.
`7.
`Exhibit 7 is a true and correct copy of the complaint filed in Digital Island, Inc. v.
`Akamai Technologies, Inc., No. 4:00-cv-03782-CW (N.D. Cal., filed September 13, 2000).
`
`I.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`On a Rule 12(c) motion, as on a Rule 12(b)(6) motion, a court may consider “documents
`referenced extensively in the complaint, documents that form the basis of plaintiff’s claims, and
`matters of judicial notice when determining whether the allegations of the complaint state a claim
`upon which relief can be granted.” O’Connor v. Uber Techs., Inc., 58 F. Supp. 3d 989, 995 (N.D.
`Cal. 2014) (internal citations omitted). The Court may consider each of the identified documents
`for the reasons described below.
`
`REQUEST FOR JUDICIAL NOTICE ISO MOTION FOR
`JUDGMENT ON THE PLEADINGS
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`Case No. 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`

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`Case 5:18-md-02834-BLF Document 414 Filed 04/24/19 Page 3 of 5
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`A.
`
`The Court has authority to take judicial notice of the Kinetech Agreement as it
`is relied upon and referenced extensively in PersonalWeb’s pleadings.
`Exhibit 1 is the licensing agreement that PersonalWeb alleges governs its and Level 3’s
`respective rights to the patents-in-suit. See Case No: 5:18-md-02834, Dkt. 257 (“Amended
`Counterclaim”), ¶¶ 1-3.
`“[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.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled
`on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). The
`standard is the same for a Rule 12(c) motion. See O’Connor, 58 F. Supp. 3d at 995.
`The complaint need not expressly incorporate the document by reference for the Court to
`consider it. The document is treated as incorporated by reference into the complaint “if the plaintiff
`refers extensively to the document or the document forms the basis of the plaintiff’s claim.” United
`States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also; Swartz v. KPMG LLP, 476 F.3d 756,
`763 (9th Cir. 2007) (a court may consider the referenced writing if the complaint relies on it and its
`authenticity is unquestioned). The Court may also consider the full text of such documents, even
`where the complaint relies on only selected portions. See In re Copper Mountain Sec. Litig., 311
`F. Supp. 2d 857, 863 (N.D. Cal. 2004).
`Here, PersonalWeb references and relies on the Kinetech Agreement as its basis to assert
`infringement of the patents in suit. See Amended Counterclaim, ¶¶ 1-3; Case 5:18-cv-05619, Dkt.
`13 (“Twitch Complaint”), ¶¶ 1-3. PersonalWeb produced the agreement to Amazon in discovery;
`the parties do not dispute its authenticity; and consideration of the full text is necessary for the
`Court’s evaluation of the motion. The Court should take judicial notice of the Kinetech Agreement
`as it is a classic example of a document incorporated into the pleadings that is properly considered
`here. See Swartz, 476 F.3d at 763; Branch, 14 F.3d at 454.
`
`REQUEST FOR JUDICIAL NOTICE ISO MOTION FOR
`JUDGMENT ON THE PLEADINGS
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`

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`B.
`
`The Court has authority to take judicial notice of public filings in this and other
`litigation and PersonalWeb’s judicial admissions contained in them.
`Under Federal Rule of Evidence 201, the Court may take judicial notice of any facts “not
`subject to reasonable dispute” in that they “can be accurately and readily determined from sources
`whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Courts in the Ninth
`Circuit routinely take judicial notice of documents filed in the pending case or other litigation, as
`well as “other matters of public record.” See, e.g., Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442
`F.3d 741, 746 n.6 (9th Cir. 2006); Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank,
`136 F.3d 1360, 1364 (9th Cir. 1998) (taking judicial notice of pleadings filed in California Superior
`Court). This includes not only noticing the fact that a document was filed, but the arguments and
`admissions that they reflect. See, e.g., Reyn’s Pasta Bella, 442 F.3d at 746 n.6 (considering the
`contents of court documents to determine the issues actually litigated in that case).
`Exhibit 2 is a joint stipulation filed by Amazon, PersonalWeb, and Level 3, in which the
`parties acknowledge in response to a direct request by the Court that Level 3 asserts no claims
`against Amazon or any other defendant in this action. This fact is not subject to reasonable dispute
`and is consistent with the pleadings. See Amended Counterclaim, ¶¶ 1-3; Twitch Complaint, ¶¶ 1-
`3.
`
`Exhibits 3-6 are publicly available court documents filed by PersonalWeb in this case in
`which it specifically represented to the Court that CloudFront is a content delivery network (CDN).
`Exhibits 3 and 6 are briefs in which PersonalWeb made that representation. See Ex. 3 at
`4:1-13; Ex. 4 at 1:28-2:1. The Court may take judicial notice of these statements, and may bind
`PersonalWeb to its judicial admissions. See Sandoval v. County of Sonoma, No. 11–cv–05817–
`TEH, 2014 WL 457749, at *2 n.3 (N.D. Cal. Jan. 31, 2014) (on motion to dismiss, taking judicial
`notice of plaintiff’s statement in an opposition brief) (citing Gospel Missions of Am. v. City of Los
`Angeles, 328 F.3d 548, 557 (9th Cir. 2003) (courts “have discretion to consider a statement made
`in briefs to be a judicial admission . . . binding on . . . the trial court”). Exercising the discretion to
`hold PersonalWeb to its word would be particularly appropriate here given PersonalWeb’s history
`of shifting its story.
`
`REQUEST FOR JUDICIAL NOTICE ISO MOTION FOR
`JUDGMENT ON THE PLEADINGS
`
`
`3
`
`Case No.: 5:18-md-02834-BLF
`Case No. 5:18-cv-00767-BLF
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 414 Filed 04/24/19 Page 5 of 5
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`Exhibits 4 and 5 are declarations sworn under penalty of perjury that PersonalWeb filed
`with the Court and relied on in asserting that that CloudFront is a CDN, including one from a former
`AWS Senior Consultant, and one from an expert witness. See Ex. 4, ¶ 12; (McClory Declaration)
`(“I am familiar with an Amazon product called CloudFront, which is a content delivery network,
`or CDN”); Ex. 5, ¶ 17 (de la Iglesia Declaration) (“AWS describes CloudFront as a ‘fast content
`delivery network (CDN) service . . .’ I understand that CloudFront’s operation during the relevant
`timeframe for infringement was substantially the same as that description.”). These are also proper
`subjects of judicial notice. Muhammad v. California, No. C–10–01449–YGR, 2012 WL 669434,
`at *5 (N.D. Cal. Feb. 29, 2012) (taking judicial notice of records submitted under perjury in the
`pending action).
`Finally, Exhibit 7 is a September 13, 2000 complaint filed in Digital Island, Inc. v. Akamai
`Technologies, Inc., No. 4:00-cv-03782-CW, in this District. Amazon does not offer it for the truth
`of any of the allegations it contains. Instead, it reflects the parties’ course of dealing under the
`Kinetech Agreement, and reflects their mutual intent that the Agreement give Digital Island, the
`predecessor to Level 3, exclusive rights to enforce the patents in the field of CDNs.
`
`II.
`
`CONCLUSION
`For the foregoing reasons, Defendants respectfully request that the Court take judicial notice
`of the identified materials in deciding Amazon’s motion for judgment on the pleadings.
`
`Dated: April 24, 2019
`
`FENWICK & WEST LLP
`
`
`
`By: /s/J. David Hadden
`J. David Hadden
`Saina S. Shamilov
`Todd R. Gregorian
`Phillip J. Haack
`Ravi R. Ranganath
`Chieh Tung
`
`Attorneys for AMAZON.COM, INC.
`and AMAZON WEB SERVICES, INC.
`
`
`
`REQUEST FOR JUDICIAL NOTICE ISO MOTION FOR
`JUDGMENT ON THE PLEADINGS
`
`
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`Case No. 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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