UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI-DADE DIVISION

SCANZ TECHNOLOGIES, INC., fka 

EQUITYFEED CORPORATION, A 

Canadian 

(Quebec) Corporation, 

Plaintiff,

vs. 

JEWMON ENTERPRISES, LLC, a Florida 

limited liability corporation; TIMOTHY 

SYKES, an individual; ZACHARY 

WESTPHAL, an individual; TIMOTHY 

BOHEN, an individual; MILLIONAIRE 

PUBLISHING, LLC, a Florida limited 

liability corporation; MILLIONAIRE 

PUBLISHING, LLC, a Colorado limited 

liability corporation; MILLIONAIRE 

MEDIA, LLC, a Florida limited liability 

corporation; and STOCKSTOTRADE.COM 

INC., a Delaware corporation,

Defendants.

 Case No. 20-cv-22957-RNS

PLAINITFF’S OBJECTIONS 

TO DEFENDANTS’ JOINT REQUEST FOR JUDICIAL NOTICE

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TABLE OF CONTENTS

ARGUMENT AND CITATION OF AUTHORITIES................................................................... 1

I. The Tweets Are Offered For The Truth Of The Matters Asserted...................................... 1

II. The Tweets Fail The “Incorporation By Reference” Test .................................................. 4

III. The Defendants’ Interpretation Of The Tweets Is Disputed .............................................. 4

IV. The Defendants Fail To Meet Their Burden Under Federal Rules Of Evidence ............... 5

CONCLUSION............................................................................................................................... 6

Certificate of Service ...................................................................................................................... 7

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Plaintiff Scanz Technologies, Inc. (“Plaintiff” or “Scanz”) hereby respectfully objects to 

the Joint Request for Judicial Notice by Defendants StocksToTrade, Zachary Westphal, JewMon 

Enterprises, LLC, Millionaire Publishing, LLC, Millionaire Media, LLC, Timothy Sykes, and 

Timothy Bohen (“Defendants”) in support of their Motions to Dismiss Complaint (hereinafter 

“RJN”).

Plaintiff objects to all ten Exhibits to Defendants’ RJN (“tweets”) on the bases that (i) 

contrary to their assertions, the Defendants are offering them for the truth of the matters asserted; 

(ii) the tweets fail the “incorporation by reference” test; (iii) the tweets fail the “not subject to 

reasonable dispute” component of Rule 201(b) of the Federal Rules of Evidence and not subject 

to judicial notice; and (iv) the Defendants fail to meet their burden under Federal Rule of Evidence

201(c)(2).

ARGUMENT AND CITATION OF AUTHORITIES

I. The Tweets Are Offered For The Truth Of The Matters Asserted

The Defendants grapple with maintaining the illusion that the proffered tweets “are not 

being attached to assert the truth of the matter of the Statements...” DE42:4.1 But the explanation 

that follows, i.e., that “the Court can easily infer Plaintiff’s awareness of the facts giving rise to 

this lawsuit and its potential claims against Defendants at the time of the Tweets,” id., unblushingly

flies in the face of the preceding assertion as well as the position they extensively rely on as the 

sole support for their limitations arguments. 

As more fully set forth in Plaintiff’s oppositions filed concurrently herewith, it would not 

only be inappropriate to attempt to resolve factual disputes at this stage of the proceeding, see, 

e.g., Beach Cmty. Bank v. CBG Real Estate LLC, 674 F. App'x 932, 935 (11th Cir. 2017) (holding 

1 “DE,” as used herein, refers to docket entries in the above-captioned action, followed by 

page number(s) where applicable.

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that district court erred in attempting to resolve factual dispute about discovery of plaintiff’s claim 

at motion-to-dismiss stage); Holding, LLC v. Fog Cap Retail Inv'rs LLC, 516 F. App'x 874, 875 

(11th Cir. 2013) (reversing order of dismissal because “the district court impermissibly drew a 

factual inference from the [proffered exhibit]”), but the Defendants position also cannot be squared 

with an overwhelming body of authorities, including the Supreme Court’s instructions in Merck 

& Co. v. Reynolds, 559 U.S. 633 (2010). In Merck, the Court rejected a sweeping “‘inquiry notice’ 

[standard] as the standard [under the discovery rule] generally,” despite acknowledging that “the 

discovery rule” means a claim “accrue[s] when the litigant first knows or with due diligence should 

know facts that will form the basis for an action,” thereby squarely addressing the standard at issue. 

Id., at 651-52, 648 (citing 2 C. Corman, Limitation of Actions § 11.1.1, at 134 (1991 and 1993 

Supp.)). The Court concluded that, under that framework, “the point where the facts would lead a 

reasonably diligent plaintiff to investigate further ... is not necessarily the point at which the 

plaintiff would already have discovered ... ‘facts constituting the violation.” Id., at 651.

Defendants’ reliance on a dicta footnote comment in U.S. ex rel. Osheroff v. Humana Inc., 

776 F.3d 805 (11th Cir. 2015), DE42:4-5, if read in conjunction with the full opinion, is actually 

detrimental to Defendants in the face of the foregoing irrefutable authorities. Not only was the 

request for judicial notice in Osheroff “unopposed,” id., at 811, but, more importantly, the Court 

there applied the Cooper2 factors that go to the very heart of a qui tam action, id., at 813-15, and 

are not relevant here. Compare also, e.g., McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 

501 F.3d 1244, 1251 (11th Cir. 2007) (distinguishing between “facial” and “factual” attack on qui 

tam complaint, the latter of which requires an opportunity to conduct discovery).

2 Cooper v. Blue Cross & Blue Shield of Fla., Inc., 19 F.3d 562 (11th Cir. 1994).

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The unreported California preliminary injunction order Defendants next cite to, DE42:5, is

also unpersuasive, because the court expressly declined to take judicial notice of the undisputed 

articles “for the truth of any statements in the documents.” 2Die4Kourt v. Hillair Capital Mgmt., 

LLC, No. SACV1601304JVSDFMX, 2016 WL 4487895, at *1 n.1 (C.D. Cal. Aug. 23, 2016). And 

in Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406 (2d Cir. 2008) (DE42:5), the court

emphasized that it may “take judicial notice [only] of the fact that press coverage ... contained 

certain information, without regard to the truth of their contents” in applying the Second Circuit’s 

carefully enunciated “storm warnings” doctrine and then “disagree[d] with [the district court’s]

conclusion that the total mix of information before it was sufficient to rule, as a matter of law” that 

the action was time-barred. Id., at 425, 426 (emphasis supplied and in original). Finally, in HB v. 

Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881 CS, 2012 WL 4477552 (S.D.N.Y. Sept. 27, 

2012) (DE42:5), the court only took “judicial notice of the internet and news articles for the fact 

of their publication, but not for the truth of the statements contained therein.” Id., at *5 (emphasis 

added). In sum, the Defendants fail to cite to any binding or persuasive authorities to support their 

conflicting position. Compare, e.g., Fin. Info. Techs., Inc. v. iControl Sys., USA, LLC, No. 8:17-

CV-190-T-23MAP, 2018 WL 3391379, at *5 (M.D. Fla. June 12, 2018), report and 

recommendation adopted as modified, No. 8:17-CV-190-T-23SPF, 2018 WL 4771060 (M.D. Fla. 

Oct. 3, 2018) (plaintiff “was not in a position to confirm [its] suspicion until obtaining the 

necessary facts”); Sokol Crystal Prod., Inc. v. DSC Commc'ns Corp., 15 F.3d 1427, 1430 (7th Cir. 

1994) (affirming judgment for plaintiff, reasoning that plaintiff was not “require[d] to bring suit 

based only on [its] abstract concern”); Intermedics, Inc. v. Ventritex, Inc., 775 F. Supp. 1258, 1266 

(N.D. Cal. 1991) (“We cannot apply statute of limitations law in a way that pressures litigants to 

file suits based merely on suspicions and fears. ... Given all these considerations, it would be 

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fundamentally unfair to penalize plaintiff (by using the statute of limitations to bar this action) for 

not filing its state law claims before it had access to enough information to make them 

meaningfully colorable.”).

II. The Tweets Fail The “Incorporation By Reference” Test

As more fully set forth in Scanz’ oppositions to Motions to Dismiss, the proffered tweets 

do not qualify as being properly judicially noticeable under the “incorporation by reference” 

doctrine the Defendants rely on without citing to the pertinent authorities. Under the doctrine, the 

movant must show that the proffered exhibit is “(1) central to the plaintiff's claim; and (2) 

undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). The first prong can only be 

met “where the plaintiff refers to certain documents in the complaint and those documents are 

central to the plaintiff's claim.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 

1369 (11th Cir. 1997) (emphasis added). But by the Defendants own representation that “these 

Tweets are [purportedly] directly relevant to Defendants’ statute of limitations argument,” DE42:5, 

the Court must reject them. See, e.g., Miranda v. Ocwen Loan Servicing, LLC, 148 F. Supp. 3d 

1349, 1353 (S.D. Fla. 2015) (incorporation by reference doctrine excludes “[d]ocuments that are 

relevant to the defendant's affirmative defenses, rather than the plaintiff's claim”). The second 

prong under the doctrine also fails; see section II, infra, sections IV-V, infra, and Scanz’ 

oppositions filed herewith.

III. The Defendants’ Interpretation Of The Tweets Is Disputed

Though the following exercise is moot under the foregoing clear directives, Scanz disputes that 

the allegations of the Complaint of when it sufficiently discovered its causes of action for trade 

secrets misappropriation are refuted by the tweets, i.e., in mid-2018 DE1, at ¶¶ 35, 39, and disputes 

that the tweets establish that it had knowledge of the facts sufficient to bring suit at the time 

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suggested under the Defendants’ conclusory theory. Compare, e.g., Boom v. Rosebandits, LLC, 

No. 13-21506-CIV, 2013 WL 5928342, at *3 (S.D. Fla. Nov. 5, 2013) (rejecting evidence that 

“presents part, but not all, of the picture”); cf., Horsley v. Feldt, 304 F.3d 1125, 1137 (11th Cir. 

2002) (declining to consider ambiguous evidence).

Courts in this Circuit have repeatedly held that “material from internet websites constitutes 

inadmissible hearsay if offered to prove the truth of the material.” Moon v. Advanced Med. Optics, 

Inc., No. 4:08-CV-0021-HLM, 2010 WL 11500832, at *7 (N.D. Ga. Dec. 29, 2010) (citing Marajh 

v. Broadspire Servs., Inc., No. 07-60975-CIV, 2008 WL 5063870, at *6 (S.D. Fla. Nov. 21, 

2008); Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc., NO. 1:04-CV-2112-CAP, 2007 WL 

4563875, at *7 (N.D. Ga. May 11, 2007)). Courts in this Circuit have routinely declined to take 

judicial notice of disputed facts contained in articles. See, e.g., Absolute Activist Value Master 

Fund Ltd. v. Devine, 233 F. Supp. 3d 1297, 1317, 1318 (M.D. Fla. 2017) (finding that, despite 

undisputed authenticity of articles, “[t]he facts contained within the documents are clearly disputed 

by the parties...”). Considering such “facts,” the court found, would violate “Federal Rule of 

Evidence 201(b) because the ‘facts’ fail the ‘not subject to reasonable dispute’ component of Rule 

201(b).” Id., at 1317. The Defendants argue that California courts have taken judicial notice of 

tweets, DE42:5, but the court in the cited case actually expressly declined to take judicial notice 

of tweets “for the purpose of determining whether the contents of those tweets ‘were in fact true.’” 

In re Twitter, Inc. Sec. Litig., No. 16-CV-05314-JST, 2020 WL 4187915, at *3 (N.D. Cal. Apr. 

17, 2020). In sum, this Court could not take judicial notice of the Defendants’ conjectures.

IV. The Defendants Fail To Meet Their Burden Under Federal Rules Of Evidence

Finally, even if the tweets were judicially noticeable—which they are clearly not—the 

Defendants also fail to meet their burden under Federal Rule of Evidence 201 of supplying the 

Court with sufficient information. See Fed. R. Evid. 201(c)(2) (a party seeking judicial notice must 

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supply the Court with necessary information). Cf., Saadi v. Maroun, No. 8:07-CV-1976-T-24 MA, 

2009 WL 3736121, at *4 (M.D. Fla. Nov. 4, 2009) (“to prove that the [internet] postings came 

from a specific person or organization,” the party offering them must “call[] a website owner or 

webmaster” “to authenticate [them]”); St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 

8:06CV223TMSS, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006) (same). The lingering 

questions the Defendants do not even attempt to resolve for this Court, such as Who actually posted 

the tweets? What information were the tweets based on? further highlight the underlying problems 

with their limitations defense. Without the necessary information, this Court could not even begin 

to tackle the question of when Scanz discovered sufficient facts to bring suit—a question which 

must, at this stage of the proceeding, be resolved in the Plaintiff’s favor based on the allegations 

of the Complaint.

CONCLUSION

For the foregoing reasons, the Court should decline to take judicial notice of the tweets 

appended as Exhibits 1 through 10 to the Defendants’ Request for Judicial Notice.

Dated: October 19, 2020 Respectfully Submitted,

SQUIRE LAW GROUP, P.A.

14329 Commerce Way

Miami Lakes, FL 33016

Phone: 888.788.8816

Fax: 786.577.0425

dlage@squirelawgroup.com

By: /s/Gustavo D. Lage

Gustavo D. Lage

Florida Bar No. 972551

Attorneys for Plaintiff 

SCANZ TECHNOLOGIES, INC.

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Certificate of Service

I hereby certify that on October 19, 2020, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system which will send notification of such filing to the Electronic 

Service List for this Case.

Dated: October 19, 2020 s/Gustavo D. Lage

Gustavo D. Lage

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