Motion to Strike Danenberg Declaration — PayServices v. FRBSF

Record facts

U.S. District Court for the District of Idaho · No. 1:23-cv-00305-REP · Doc. 26 · 2023-09-14 · Docket on CourtListener

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DEFENDANT FEDERAL RESERVE BANK OF SAN FRANCISCO’S MOTION TO STRIKE THE DECLARATION OF 
LIONEL DANENBERG - 1 
Jonathan K. Youngwood (Admitted Pro Hac Vice)  
jyoungwood@stblaw.com  
Meredith Karp (Admitted Pro Hac Vice)  
meredith.karp@stblaw.com  
SIMPSON THACHER & BARTLETT LLP 
425 Lexington Avenue 
New York, NY 10017 
Telephone:  (212) 455-2000 
Facsimile:   (212) 455-2502 
 
Robert A. Faucher (ISB #4745) 
rfaucher@hollandhart.com   
A. Dean Bennett (ISB #7735) 
adbennett@hollandhart.com  
Julie A. Hamilton (ISB #11708)  
jahamilton@hollandhart.com   
HOLLAND & HART LLP 
800 W. Main Street, Suite 1750 
Boise, ID 83702-7714 
Telephone:  (208) 342-5000 
Facsimile:   (208) 343-8869 
 
Attorneys for Defendant  
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF IDAHO 
PAYSERVICES BANK, 
Plaintiff, 
vs. 
FEDERAL RESERVE BANK OF 
SAN FRANCISCO, 
Defendant.   
 Case No. 1:23-cv-00305-REP  
 
DEFENDANT FEDERAL RESERVE BANK 
OF SAN FRANCISCO’S MOTION TO 
STRIKE THE DECLARATION OF 
LIONEL DANENBERG 
 
Defendant Federal Reserve Bank of San Francisco (“FRBSF”), by and through its 
undersigned counsel, respectfully moves the Court for an order striking the Declaration of Lionel 
Danenberg, Dkt. No. 23-1 (the “Declaration”). 
Case 1:23-cv-00305-REP     Document 26     Filed 09/14/23     Page 1 of 4

 
DEFENDANT FEDERAL RESERVE BANK OF SAN FRANCISCO’S MOTION TO STRIKE DECLARATION OF 
LIONEL DANENBERG - 2 
 
In Opposition to Defendant’s Motion to Dismiss, PayServices attached a Declaration of new, 
unsupported factual allegations.  This is improper and the Declaration should be stricken from the 
record. 
It is well-settled that “[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court 
may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in 
opposition to a defendant's motion to dismiss.”  Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 
1197 n.1 (9th Cir. 1998); United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (“[I]t would 
have been improper for the court to consider the declaration and exhibits attached to the 
government's opposition without converting the motion to dismiss into a motion for summary 
judgment[.]”); United States ex rel. Lee v. Corinthian Colleges, 655 F.3d 984, 998 (9th Cir. 2011) 
(“As a general rule, we may not consider any material beyond the pleadings in ruling on a Rule 
12(b)(6) motion.” (internal citation omitted)).  Courts in the Ninth Circuit, including in this district, 
routinely strike or disregard new factual allegations contained in an opposition brief.  See, e.g., 
Rehms v. City of Post Falls, No. 2:22-cv-00185-DCN, 2022 U.S. Dist. LEXIS 231270, at *7 (D. 
Idaho Dec. 22, 2022) (granting motion to strike “an affidavit [submitted] as part of an opposition 
brief to a motion to dismiss in order to assert new facts not included in the complaint”); Gaylord v. 
Cnty. of Ada, No. 1:22-cv-00195-BLW, 2022 U.S. Dist. LEXIS 202519, at *5 (D. Idaho Nov. 4, 
2022) (granting defendant’s motion to exclude the affidavits and exhibits from plaintiff’s opposition 
because it is improper for “a plaintiff to submit an affidavit or declaration in order to assert new 
facts not included in a complaint” at the motion to dismiss phase); Haddock v. Countrywide Bank, 
N.A., No. CV 14-6452 PSG (FFMx), 2015 U.S. Dist. LEXIS 146291, at *20 (C.D. Cal. Oct. 27, 
2015) (“All factual allegations that a plaintiff employs to oppose a motion to dismiss must be 
included in the operative pleading.”); Wise v. Maximus Fed. Servs., No. 18-CV-07454-LHK, 2020 
Case 1:23-cv-00305-REP     Document 26     Filed 09/14/23     Page 2 of 4

 
DEFENDANT FEDERAL RESERVE BANK OF SAN FRANCISCO’S MOTION TO STRIKE DECLARATION OF 
LIONEL DANENBERG - 3 
U.S. Dist. LEXIS 10759, at *19 (N.D. Cal. Jan. 21, 2020) (disregarding assertion that “appears only 
in Plaintiff's opposition to the instant motion to dismiss”); Monzon v. S. Wine & Spirits of Cal., 834 
F. Supp. 2d 934, 941 (N.D. Cal. 2011) (“Because both Plaintiff’s Opposition and Defendant’s Reply 
introduce new facts and attach documents not referenced by or incorporated into the Complaint, the 
Court does not consider them in resolving the pending Motion.”). 
Additionally, the Declaration is largely unsupported by any documentary evidence.  For 
example, the declaration describes, without support: (1) the “preliminary approval for a charter from 
the Idaho Department of Finance” (Decl. ¶ 14); (2) the alleged evidence that PayServices submitted 
to FRBSF, including its “Compliance Management System Manual,” the “Cybersecurity Manual,” 
and  “Business Plan” (id. ¶ 15); (3) the company’s “risk management framework” (id. ¶ 16); and (4) 
a “certification letter” allegedly stating that PayServices’ compliance management system complies 
with “federal law” (id. ¶ 18).  This Court cannot accept as true PayServices’ conclusory descriptions 
of documents that are not before the Court.  See Fed. R. Evid. 1002-1004.   
For the foregoing reasons, Defendant FRBSF respectfully requests this Court to strike the 
Declaration of Lionel Danenberg and the references to such Declaration in Plaintiff’s Opposition to 
Defendant FRBSF’s Motion to Dismiss. 
Dated this 14th day of September, 2023. 
SIMPSON THACHER & BARTLETT LLP  
 
By:  /s/ Jonathan K. Youngwood 
 
Jonathan K. Youngwood (Admitted Pro Hac Vice) 
Meredith Karp (Admitted Pro Hac Vice) 
 
- and -  
HOLLAND & HART LLP 
By:  /s/ Robert A. Faucher 
 
Robert A. Faucher  
Attorneys for Defendant  
Case 1:23-cv-00305-REP     Document 26     Filed 09/14/23     Page 3 of 4

 
DEFENDANT FEDERAL RESERVE BANK OF SAN FRANCISCO’S MOTION TO STRIKE DECLARATION OF 
LIONEL DANENBERG - 4 
 
CERTIFICATE OF SERVICE 
I HEREBY CERTIFY that on the 14th day of September, 2023, I filed the foregoing 
electronically through the CM/ECF system, which caused the following parties or counsel to be 
served by electronic means, as more fully reflected on the Notice of Electronic Filing: 
Asa Daniel Brown  
asa@asabrownlaw.com  
 
Jade A. Craig  
jade@jadeacraigpa.com  
 /s/ Robert A. Faucher 
 
Robert A. Faucher 
of HOLLAND & HART LLP 
 
Case 1:23-cv-00305-REP     Document 26     Filed 09/14/23     Page 4 of 4

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