Complaint (2020-10-23) — Children's Health Defense v. Facebook, Inc., et al

What This Document Is

A 22-page Request for Judicial Notice filed October 23, 2020 by defendant The Poynter Institute for Media Studies, Inc. ("Poynter," sued as "Poynter Institute") in support of its motion to dismiss the Verified Complaint, then noticed for hearing February 5, 2021. Poynter asks the court to take judicial notice of two documents referenced in and central to CHD's complaint: the PolitiFact fact-check article at issue (Exhibit A) and the underlying Collective Evolution article that PolitiFact fact-checked (Exhibit B).

Factual Summary

Filed by Kevin L. Vick of Jassy Vick Carolan LLP and Carol Jean LoCicero, Mark R. Caramanica, and Daniela B. Abratt of Thomas & LoCicero PL, counsel for Poynter. Under Federal Rules of Evidence 201(b) and (d), Poynter argues judicial notice is proper because a court ruling on a motion to dismiss may consider documents outside the pleadings when they are referenced in and form the basis of the complaint's claims, citing Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001); Malley v. San Jose Midtown Dev. LLC, 2020 WL 5877575 (N.D. Cal. 2020); Monachelli v. Hortonworks, Inc., 225 F. Supp. 3d 1045 (N.D. Cal. 2016); and Zella v. The E.W. Scripps Co., 529 F. Supp. 2d 1124 (C.D. Cal. 2007). The brief notes CHD's Verified Complaint (Doc. 1, ¶¶89-93) directly references the PolitiFact fact-check article and the Collective Evolution article it fact-checked, and that this fact-check is the sole alleged basis for naming Poynter as a defendant. A footnote clarifies that "PolitiFact is a branded news fact-checking service operated by Poynter." Because the articles' contents are "not subject to reasonable dispute" and "capable of accurate and ready determination," Poynter argues judicial notice is appropriate, and requests the court take notice of the attached exhibits. Dated and signed October 23, 2020.

Exhibits A (pages 4-13 of the PDF) and B (pages 14-22) are the PolitiFact fact-check article and the Collective Evolution article, respectively. Their article text is not represented in the available document text, so their contents are not characterized in this summary.

Key Facts

Filed 2020-10-23 by Poynter, requesting judicial notice under FRE 201(b) and (d) of two documents central to CHD's complaint against it.
Exhibit A: the PolitiFact fact-check article at issue (Compl. ¶¶89-93). Exhibit B: the Collective Evolution article PolitiFact fact-checked.
Poynter's argument: the fact-check is the sole basis alleged for naming Poynter as a defendant, so judicial notice of both articles is proper on a motion to dismiss.
Noticed for hearing February 5, 2021, Courtroom 1, 17th floor.
The available document text does not include the article text from the exhibit pages, and this summary does not characterize those articles.

Source Caveats

Exhibits A and B (pages 4-22 of the 22-page PDF — the PolitiFact fact-check article and the Collective Evolution article themselves) are image-only scans with no machine-readable text; their content is not captured here and would require a dedicated OCR pass to summarize substantively.

Date: 2020-10-23

Full text

CASE NO.: 3:20-CV-05787-SI

THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REQUEST FOR JUDICIAL
NOTICE

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JASSY VICK CAROLAN LLP
KEVIN L. VICK (SBN 220738)
  kvick@jassyvick.com
800 Wilshire Blvd.
Suite 800
Los Angeles, CA 90017
Telephone: (310) 870-7048
Facsimile: (310) 870-7010
Attorneys for Defendant The Poynter
Institute for Media Studies, Inc.

THOMAS & LOCICERO PL
CAROL JEAN LOCICERO (pro hac vice)
  clocicero@tlolawfirm.com
MARK R. CARAMANICA (pro hac vice)
 mcaramanica@tlolawfirm.com
 601 South Boulevard
Tampa, FL 33606
Telephone: (813) 984-3060
Facsimile: (813) 984-3070
 -and-
DANIELA B. ABRATT (pro hac vice)
 dabratt@tlolawfirm.com
 915 Middle River Drive, Suite 309
Fort Lauderdale, FL 33304
Telephone: (954) 703-3416
Facsimile: (954) 400-5415
Attorneys for Defendant The Poynter
Institute for Media Studies, Inc.
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

CHILDREN’S HEALTH DEFENSE, a Georgia non-
profit organization,
Plaintiff,
v.
FACEBOOK, INC., a Delaware corporation; MARK
ZUCKERBERG, a California resident; SCIENCE
FEEDBACK, a French corporation; POYNTER
INSTITUTE, a Florida corporation; and DOES 1-20.
Defendants.

Case No.:  3:20-cv-05787-SI

DEFENDANT THE POYNTER
INSTITUTE FOR MEDIA STUDIES,
INC.’S REQUEST FOR JUDICIAL
NOTICE OF EXHIBITS A & B IN
SUPPORT OF MOTION TO DISMISS
VERIFIED COMPLAINT

DATE: FEBRUARY 5, 2021
TIME: 10:00 A.M.
COURTROOM: 1-17TH FLOOR

Case 3:20-cv-05787-SI   Document 55   Filed 10/23/20   Page 1 of 22

CASE NO.: 3:20-CV-05787-SI

THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REQUEST FOR JUDICIAL
NOTICE

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REQUEST FOR JUDICIAL NOTICE
I. INTRODUCTION
Defendant The Poynter Institute for Media Studies, Inc. (“Poynter,” and incorrectly sued as
the Poynter Institute) respectfully requests, pursuant to Federal Rules of Evidence 201(b) and (d),
that this Court take judicial notice of (1) the PolitiFact1 fact-check article referenced and at issue in
Plaintiff’s Verified Complaint, and (2) the Collective Evolution article that was the subject of
PolitiFact fact-check article, also referenced and at issue in the Verified Complaint.  The PolitiFact
fact-check article and Collective Evolution article are attached to this notice at Exhibits A and B,
respectively.
II. THE COURT SHOULD TAKE JUDICIAL NOTICE OF THE PUBLICATIONS AT
      ISSUE.

Federal Rule of Evidence 201(b) provides that facts are subject to judicial notice where they
are “not subject to reasonable dispute in that [they are] . . . capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” Federal Rule
of Evidence 201(d) states that “[a] court shall take judicial notice if requested by a party and
supplied with the necessary information.”
In ruling on a motion to dismiss, a court may take judicial notice of items and documents
outside the pleadings when such items are referenced in the complaint. See, e.g., Knievel v. ESPN,
393 F.3d 1068, 1076-77 (9th Cir. 2005) (on motion to dismiss, taking judicial notice of entire news
article at issue in defamation claim where Plaintiff referenced only portion of the same in complaint,
remainder was properly incorporated by reference) (citing Horsley v. Feldt, 304 F.3d 1125, 1135
(11th Cir. 2002)); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (“a court may
consider material which is properly submitted as part of the complaint on a motion to dismiss

1 PolitiFact is a branded news fact-checking service operated by Poynter.
Case 3:20-cv-05787-SI   Document 55   Filed 10/23/20   Page 2 of 22

- 2 -
CASE NO.: 3:20-CV-05787-SI

THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REQUEST FOR JUDICIAL
NOTICE

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without converting the motion to dismiss into a motion for summary judgment . . . [and] [i]f the
documents are not physically attached to the complaint, they may be considered if the documents’
authenticity . . . is not contested and the plaintiff's complaint necessarily relies on them.”)
(quotations omitted); Malley v. San Jose Midtown Dev. LLC, No. 5:20-cv-01925, 2020 WL
5877575, at *3 (N.D. Cal. Oct. 2, 2020) (“[t]he incorporation by reference doctrine allows the
Court to consider documents that are extensively referred to in the complaint or that form the basis
of the plaintiff's claims.”); Monachelli v. Hortonworks, Inc., 225 F. Supp. 3d 1045, 1055 n.1 (N.D.
Cal. 2016) (courts may take notice of matters outside the pleadings on a motion to dismiss where
they are central to the claims); Zella v. The E.W. Scripps Co., 529 F. Supp. 2d 1124, 1128 (C.D.
Cal. 2007) (“a court may consider documents which are not physically attached to the complaint
but ‘whose contents are alleged in [the] complaint and whose authenticity no party questions.’”).
Here, because Plaintiff directly references the PolitiFact fact-check article (along with the
underlying Collective Evolution article) and it constitutes the alleged basis for naming Poynter in
this action, judicial notice of those materials is appropriate. See Verified Complaint, Doc. 1 at ¶¶
89-93.  The articles attached at Exhibits A and B and their contents are not subject to reasonable
dispute and are capable of accurate and ready determination.
Accordingly, Poynter respectfully requests that the Court take judicial notice of the
attached exhibits.
Dated: October 23, 2020

JASSY VICK CAROLAN LLP

By:     /s/ Kevin L. Vick

KEVIN L. VICK

THOMAS & LOCICERO PL

By:     /s/ Carol Jean LoCicero

CAROL JEAN LOCICERO

Case 3:20-cv-05787-SI   Document 55   Filed 10/23/20   Page 3 of 22

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EXHIBIT A
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EXHIBIT B
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