Page 23 of 33 B R O W N S T E IN H Y A T T F A R B E R S C H R E C K , L L P 10 0 N or th C it y P ar kw ay , S ui te 1 60 0 L as V eg as , N V 8 91 06 -4 61 4 70 2. 38 2. 21 01 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 In any event, whether or not Val de Loire had the opportunity to depose or question Mr. Maggio is irrelevant for purposes of Rule 44.1. Val de Loire also attacks the Magistrate Court’s reliance on hearsay evidence.

at 2-3. Plaintiff’s citation of Salinas v. Amteck, 682 F.Supp.2d 1022 (N.D. Cal. 2010), for this proposition is inapposite, because Salinas actually cites to the standards under Federal Rule Evidence 702 and under Daubert, not under Federal Rule of Civil Procedure 44.1. Case 2:07-cv-05715-CAS-PJW Document 261 Filed 02/07/11 Page 10 of 15 Page ID #:4096 Mitchell Silberberg & Knupp LLP 7 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S DAUBERT MOTION TO EXCLUDE TESTIMONY OF DR. AHMED Y. ZOHNY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3535630.

are precluded by their own allegation that a two-year hiatus existed between Plaintiffs’ purported injury (the elimination of ROZ’s participatory interest in CCBU in 2002), allegedly caused by Uzbekistan, and any alleged act of the U.S. Zeromax Khalil, 184 F.R.D. 3, 9 (D.D.C. 1999) (holding in 12(b)(6) case that Rule 44.1 permitted submission of declaration from English barrister on issues of English law). Case 1:06-cv-01040-CKK Document 28 Filed 11/20/2007 Page 44 of 56 -34- Defendants in 2004. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002) (acknowledging that Rule 12(b)(6) dismissal is appropriate where the allegations contradict the claims asserted); see also Sparrow v. United Airlines, Inc., 216 F.3d 1111, 1116 (D.C. Cir. 2000) (“In some cases, it is possible for a plaintiff to plead too much: that is, to plead himself out of court by alleging facts that render success on the merits impossible.”); Chandamuri, 274 F. Supp. 2d at 79 (dismissing complaint because no “reasonable inferences” supporting claims could be drawn from factual allegations and where plaintiff’s own factual allegations “render[ed] success on the merits impossible”). Moreover, Plaintiffs’ bare and conclusory allegations (e.g., Am. Compl. ¶¶ 42, 45, 47) fail to provide any basis fr

1 allows Courts to consider declarations of foreign law experts to interpret and determine foreign law issues and the “court’s determination must be treated as a ruling on a question of law.” Fed. R. Civ. P. 44.1. This rule, however, is very limited.

The best-known example is the use of judicial records in ruling on a claim that the present case is barred or controlled by res judicata . . . .”). 1 Similarly, Plaintiffs argue that the Court may not grant judicial notice regarding the Nierenberg Complaint and Final Judgment because they are “matters of foreign law” and thus subject to Federal Rule of Civil Procedure 44.1, not Federal Rule of Evidence 201. Opposition at 3.

Where the parties fail to carry these burdens, the Court is empowered to presume that the foreign law is the same as that of the United States, and need not engage in a choice of law analysis. See Ferrostaal, Inc. v. M/V Sea Phoenix, 447 F.3d 212, 218 (3d Cir. 2006) (refusing to engage in conflict of laws Case 2:08-cv-04884-ER Document 93 Filed 03/15/10 Page 35 of 126 - 36 - analysis where the parties did not satisfy the necessary predicate of establishing Tunisian law pursuant to Fed. R. Civ. P. 44.1). As neither party provided any authority as to the tort of false light invasion of privacy under South African law, the Court concludes that Rule 44.

1. Plaintiffs are not covered by The Afghanistan Labor Code The Court should dismiss the Complaint because Plaintiffs are exempt from the Afghanistan Labor Code.42 Article 6 (1) of the Afghanistan Labor Code states: Foreign Citizens who have obtained or will obtain later work permit based on previous or separate contract or without it in the Islamic Republic of Afghanistan 42 See Fed. R. Civ. P. 44.1 (“In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence”); Erie County Employees Retirement Sys. v. Isenberg, 2012 WL 3100463, *3 (S.D. Tex. 2012) (considering Rule 44.1 expert opinions on 12(b)(6) motion).

Plaintiffs’ Response The declarant states that he is reasonably proficient in French to translate this simple provision of French law, and Defendant does not identify any discrepancy in Plaintiffs’ provided translation. Under FRCP 44.1, “[i]n determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” In any event, Plaintiffs have filing a declaration from a certified translator that expressly confirms the accuracy of the declarant’s original translation.

Winn v. Schafer, 499 F. Supp. 2d 390, 396 n.28 (S.D.N.Y. 2007). Another court aptly observed that “allowing the experts to offer their opinions on the applicability of the law to the facts in their Fed. R. Civ. P. 44.1 submissions could be helpful to Case 1:13-cv-08655-JMF Document 27 Filed 02/28/14 Page 4 of 6 -4- the court.” USGen New England, Inc. v. TransCanada Pipelines, Ltd. (In re USGen New England, Inc.), No. 03-30465, 2007 BANKR.

1 of their intent to rely upon foreign law in this action. See MCA, Inc. v. United States, 685 F.2d 1099, 1104 (9th Cir. 1982) (“Under Fed. R. Civ. P. 44.1, when the parties have given written notice of intent to raise an issue of foreign law, a federal court may take judicial notice of the laws of a foreign country.”).