UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
November 30, 2007
RENEE P. GEOFFROY AND ALICE MACK, PLAINTIFFS,
WASHINGTON MUTUAL BANK, DEFENDANT.
WASHINGTON MUTUAL BANK, THIRD-PARTY PLAINTIFF,
JEANAN MCCULLOUGH, THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS WITHOUT PREJUDICE
Defendant and Third-Party Plaintiff Washington Mutual Bank ("Wamu") moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Plaintiff's first cause of action for violation of the Electronic Funds Transfer Act, 15 U.S.C. §1693 et seq. ("EFTA"). Plaintiffs Renee Geoffroy and Alice Mack oppose the motion. Pursuant to Local Rule 71.(d)(1), this matter is appropriate for decision without oral argument.
The court denies the Rule 12(b)(6) motion without prejudice because the present motion is largely predicated upon extraneous evidence, not properly considered on a motion to dismiss. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) ("extraneous evidence should not be considered in ruling on a motion to dismiss'). Wamu, in its notice of motion and motion to dismiss, represents that the "motion is based upon Plaintiffs' admissions [contained in a letter brief submitted to Magistrate Judge McCurine] that the purported unauthorized transfers of funds from Plaintiffs' money market savings account, . . . were accomplished through telephonic communications. . . ." (Notice of Motion at p. 2:10-13). Without citing any authority, Wamu represents that the court may properly take judicial notice of a letter brief which is not part of the court's docket. Furthermore, the court notes that pertinent portions of the letter brief relied upon by Wamu are primarily based upon the declaration of Ms. Karen Gill, a Wamu bank officer and compliance specialist. (Request for Judicial Notice, Exh.1).
The court concludes that Wamu's Exhibit 1 is not a proper subject for judicial notice under FRE 201. A judicially noticed fact is one either (1) generally known in the community or (2) "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FRE 201(b). Indisputably, Exhibit 1 does not satisfy either prerequisite for judicial notice.*fn1 The court notes that Rule 56 provides Wamu with the procedural mechanism to raised evidentiary-based motions.
In sum, the motion to dismiss is denied without prejudice.
IT IS SO ORDERED.