Cluster 757732

At the stage of a motion to dismiss, the Court “is limited to facts stated on the face of the complaint and in documents appended to the complaint or incorporated in the complaint by reference, as well as to matters of which judicial notice may be taken.” Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998).

See Town of Southold, 477 F.3d at 50 ; Automated Salvage Transp., Inc., 155 F.3d at 77. 32 Plaintiffs also argue that Local Law 15 places another incidental burden on inter state commerce that, at least at summary judgment, is sufficient to meet their burden.

As noted above: “The party challenging a law as either clearly discriminatory or violative of Pike bears the threshold burden of demonstrating that it has a disparate impact on interstate commerce — ‘[t]he fact that it may otherwise affect commerce is not sufficient.’ ” Town of Southold, 477 F.3d at 47 (quoting Automated Salvage Trans., 155 F.3d at 75).

Ass'n, 389 F.3d at 502 (quoting Automated Salvage Transp., Inc., 155 F.3d at 75).

We have analyzed the extraterritorial effects of state regulations as a form of excessive burden under the Pike balancing test, see, e.g., Sorrell, 272 F.3d at 109-10 , and also as a basis for per se invalidity, see, e.g., Wheelabrator, 155 F.3d at 77-78; see also Freedom Holdings, 357 F.3d at 216 n. 11.

We have analyzed the extraterritorial effects of state regulations as a form of excessive burden under the Pike balancing test, see, e.g., Sorrell, 272 F.3d at 109-10, and also as a basis for per se invalidity, see, e.g., Wheelabrator, 155 F.3d at 77-78; see also Freedom Holdings, 357 F.3d at 216 n.11.

We have expressed doubt that even this tough test is available to plaintiffs unless they show at least “mild” discrimination against interstate commerce;- Pike seems to require that at least “incidental” “effects on interstate commerce be shown.” National Paint & Coatings Ass’n v. City of *556 Chicago, 45 F.3d 1124, 1131 (7th Cir.1995); Grant’s Dairy-Maine, LLC v. Commissioner of Maine Dep’t of Agriculture, Food & Rural Resources, 232 F.3d 8, 18 (1st Cir.2000); Automated Sal…

Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2nd Cir.1998).

Sept.17, 2003) (citing Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998) and Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998)).

Under the Pike test, "if no such unequal burden be shown, a reviewing court need not proceed further." Id. 40 The bottom line is therefore that, under either the "clear discrimination" or the " Pike " forms of analysis, "the minimum showing required ... is that [the state statute] have a disparate impact on interstate commerce." Automated Salvage Trans., 155 F.3d at 75.

The bottom line is therefore that, under either the “clear discrimination” or the “Pike ” forms of analysis, “the minimum showing required ... is that [the state statute] have a disparate impact on interstate commerce.” Automated Salvage Trans., 155 F.3d at 75.

Id. at 63.

Id. at 63.

Id. at 63.

The fact that it may otherwise affect commerce is not sufficient.” Automation Salvage Transport, 155 F.3d at 74 (internal quotations and citations omitted).

The Court may consider “facts stated on the face of the [pleading] and in documents appended to the complaint or incorporated in the [pleading] as well as [] matters of which judicial notice may be taken.” Scholastic, Inc. v. Stouffer, 124 F.Supp.2d 836, 841 (S.D.NY.2000) (quoting Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998)). b) Defamation (i) Applicable Law To state a claim for defamation under New York law, 1…

Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998); Venture Associates Corp. v. Zenith Data Sys.

See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998); Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998). 5 .Under 28 U.S.C. § 1442 (a)(1), a civil action commenced in state court against the United States, any agency of the United States, any officer of the United States, or any person acting under such an officer may be removed to federal district court where that individual is sued "in an offici…

Sys., Inc., 155 F.3d 59, 78 (2d Cir.1998) (emphasis added).

The Court may consider “facts stated on the face of the [pleading] and in documents appended to the complaint or incorporated in the [pleading], as well as [ ] matters of which judicial notice may be taken.” Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998). 4 “[T]he principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable [that party] to a…

Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998); Walsh v. Eastman Kodak Co., 53 F.Supp.2d 569, 570 (W.D.N.Y.1999).

In deciding a motion under Rule 12(b)(6), the court may consider “facts stated on the face of the complaint and in documents appended to the complaint or incorporated in the complaint, as well as [] matters of which judicial *433 notice may be taken.” Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998).

See Fed.R.Evid. 201(f) (“Judicial notice may be taken at any stage of the proceeding”); Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998) (consideration of a motion to dismiss “is limited to facts stated on the face of the complaint or incorporated in the complaint by reference, as well as to matters of which judicial notice may be taken.”).

Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998).

Dismissal of the complaint is proper only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998) (citation omitted) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957)); see Fed.R.Civ.P. 12(b).

The second type provides immunity when the party seeking immunity is not the “the State itself.” See Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 70 (2d Cir.1998).

See Automated Salvage Transport, Inc. v. Wheelabrater Environmental Systems, Inc., 155 F.3d 59 , 67 (2d Cir. 1998) (On motion to dismiss, court is free to consider “documents appended to the complaint or incorporated in the complaint by reference, as well as to matters of which judicial notice may be taken.”); Cortec Industries, Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d.

See Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir. 1998) (on a motion to dismiss, court “is limited to facts stated on the face of the complaint and in documents appended to the complaint or incorporated in the complaint by reference, as well as to matters of which judicial notice may be taken.”) “Defs.’ Mem.” refers to Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss Complaint Pursuant to Fed.

I; see supra Part I.B.12) Nokia's 2003 Form 20-F’s risk factors are stated more fully at supra Part I.B.7(b). 12 .

See Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir.1998) (stating that on a motion to dismiss the court may consider “facts stated on the face of the complaint and in documents appended to the complaint or incorporated in the complaint ...”).

See Automated Salvage, 155 F.3d at 79; Tinnerello, 141 F.3d at 55-56 ; USA Recycling, 66 F.3d at 1291 ; SSC, 66 F.3d at 518; cf. Gary D.

See Automated Salvage, 155 F.3d at 79; Tinnerello, 141 F.3d at 55-56 ; USA Recycling, 66 F.3d at 1291 ; SSC, 66 F.3d at 518 ; cf. Gary D.