Kahle et al v. Ashcroft Doc.

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Case 3:04-cv-01127-MMC Document 32 Filed 10/20/2004 Page 1 of 4

1 PETER D. KEISLER
Assistant Attorney General
2 VINCENT M. GARVEY
Deputy Branch Director, Federal Programs Branch
3 JOHN H. ZACHARIA (D.C. Bar # 456867)
4 Trial Attorney, Federal Programs Branch, United States Department of Justice
20 Massachusetts Avenue, NW, Seventh Floor
5 Washington, D.C. 20530
Telephone: (202) 305-2310
6 Facsimile: (202) 616-8470
7 KEVIN V. RYAN (CA Bar #118321)
8 United States Attorney
JOANN SWANSON (CA Bar #88143)
9 Chief, Civil Division
OWEN MARTIKAN (CA Bar #117104)
10 Assistant United States Attorney
450 Golden Gate Ave., Box 36055
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San Francisco, CA 94102
12 Telephone: (415) 436-7200
Facsimile: (415) 436-6748
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Attorneys for Defendant
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
16 SAN FRANCISCO HEADQUARTERS

17 )
BREWSTER KAHLE, INTERNET ) Case No. 04-CV-1127-MMC
18 ARCHIVE, RICHARD PRELINGER, )
19 AND PRELINGER ASSOCIATES, INC. ) DEFENDANT’S MEMORANDUM IN
) OPPOSITION TO “PLAINTIFFS’
20 Plaintiffs, ) MOTION TO ALLOW USE OF
) POWERPOINT SLIDES IN HEARING
21 v. ) ON MOTION TO DISMISS”
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22 JOHN ASHCROFT, in his official capacity ) Date: Friday, October 29, 2004
23 as Attorney General of the United States, ) Time: 9:00 a.m.
) Courtroom: 7, 19th Floor
24 Defendant. ) Judge: The Honorable Maxine M.
) Chesney
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)
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Opposition to Plaintiffs’ Motion to Use Slides; 04-CV-1127 MMC

Dockets.Justia.com
 Case 3:04-cv-01127-MMC Document 32 Filed 10/20/2004 Page 2 of 4

1 Pursuant to Civil L.R. 7-10(b)(2), Defendant respectfully presents this Memorandum

2 in Opposition to Plaintiffs’ “Motion to Allow Use of Powerpoint Slides in Hearing on Motion

3 to Dismiss” (Pl. Mot.) because the oral argument scheduled for October 29, 2004 on
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Defendant’s Rule 12(b)(6) motion is not an evidentiary hearing; it is an oral argument limited
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to the legal sufficiency of the claims set forth in Plaintiffs’ Amended Complaint.
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In their Motion, Plaintiffs seek to present slides to “assist the Court” as part of their
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8 opposition to Defendant’s Rule 12(b)(6) motion to dismiss at the October 29, 2004 hearing.

9 Pl. Mot. at 1. However, Plaintiffs have not certified that the images on such slides will not

10 introduce facts outside the well-pleaded allegations in the Amended Complaint. In addition,
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Plaintiffs refused to show their “slides” to Defendant’s counsel before filing their motion,
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despite a request by Defendant’s counsel to see them. Plaintiffs have also neglected to attach
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their proposed slides to their motion, precluding even the Court from reviewing them before
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oral argument.
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16 It is axiomatic that a Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the

17 claims stated in the complaint and assumes that the well-pleaded factual allegations are true.
18 For this reason, federal courts uniformly preclude plaintiffs from amending the allegations of
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a complaint in their opposition to a motion to dismiss pursuant to Rule 12(b)(6). See, e.g.,
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Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1988). In the
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same vein, unlike at an evidentiary hearing, courts typically will not accept the presentation of
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23 facts not alleged in a complaint when hearing argument on a Rule 12(b)(6) motion because

24 such a hearing is limited to a determination of the legal sufficiency of Plaintiffs’ claims.

25 Indeed, federal courts routinely exercise their discretion to rule on 12(b)(6) motions without
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Opposition to Plaintiffs’ Motion to Use Slides; 04-CV-1127 MMC 1

 Case 3:04-cv-01127-MMC Document 32 Filed 10/20/2004 Page 3 of 4

1 Thus, Plaintiffs’ motion should be denied because Plaintiffs are not permitted to

2 introduce evidence outside the pleadings as part of their opposition to Defendant’s Rule
3 12(b)(6) motion to dismiss. If Plaintiffs wanted the Court to consider their slides when
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considering Defendant’s Rule 12(b)(6) motion, Plaintiffs could have included them as
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exhibits to their Amended Complaint. Plaintiffs also could have sought leave to amend their
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complaint to add the slides as exhibits to a further amended complaint any time after
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8 Defendant filed the motion to dismiss on June 23, 2004. Instead of presenting their slides in

9 any of these appropriate ways, Plaintiffs ask the Court to deny Defendant the opportunity to

10 object to Plaintiffs’ slides until the day of the oral argument. See Plaintiffs’ “Proposed Order
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Permitting Plaintiffs’ Use of Power Point [sic] Slides at Oct. 29 Hearing,” at 1. Plaintiffs
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should not be permitted to convert an oral argument on a Rule 12(b)(6) motion into an
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evidentiary hearing as an end-run around the requirement that argument on a Rule 12(b)(6)
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motion be strictly limited to the legal sufficiency of Plaintiffs’ claims set forth in the four
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16 corners of the complaint.

17 Accordingly, Defendant respectfully requests that the Court deny Plaintiffs’ motion to
18 present slides at the October 29, 2004 Hearing.
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Opposition to Plaintiffs’ Motion to Use Slides; 04-CV-1127 MMC 2

 Case 3:04-cv-01127-MMC Document 32 Filed 10/20/2004 Page 4 of 4

1 Dated: October 21, 2004. Respectfully submitted,

2 PETER D. KEISLER
Assistant Attorney General
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KEVIN V. RYAN
4 United States Attorney
5 JOANN SWANSON
6 Chief, Civil Division

7 OWEN MARTIKAN
Assistant United States Attorney
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_____/s/ John H. Zacharia_________________
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VINCENT M. GARVEY
10 JOHN H. ZACHARIA
Attorneys, Department of Justice
11 20 Massachusetts Ave., N.W., 7th Floor
Washington, D.C. 20530
12 Tel.: (202) 305-2310; Fax: (202) 616-8470
E-mail:john.zacharia@usdoj.gov
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Attorneys for Defendant
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Opposition to Plaintiffs’ Motion to Use Slides; 04-CV-1127 MMC 3