Juniper cited O'Toole v. Northrop Grumman Corp. , 499 F.3d 1218 (10th Cir. 2007), but the object of judicial notice in O'Toole was historical data actively available on the defendant's website, not information coming from an internet archive.See e.g. Pohl v. MH Sub I, LLC , 332 F.R.D. 713, 716 (N.D. Fla. 2019) ; In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig. , No. 07 CIV. 10470, 2013 WL 6869410, at *4 (S.D.N.Y. Dec. 30, 2013).My Health, Inc. v. Gen. Elec. Co. , No. 15-CV-80-JDP, 2015 WL 9474293, at *4 (W.D. Wis. Dec. 28, 2015) ; see also Nassar v. Nassar , No. 3:14-CV-1501-J-34MCR, 2017 WL 26859, at *5 (M.D. Fla. Jan. 3, 2017).
District courts have taken judicial notice of the contents of webpages available through the Wayback Machine "as facts that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Erickson v. Neb. Mach. Co. , No. 15-CV-01147-JD, 2015 WL 4089849, at *1 n.1 (N.D. Cal. July 6, 2015) (comparing "copies of current versions" of websites with versions available on the Wayback Machine to determine "that the websites were substantively identical during the relevant timeframe"); see also Pohl v. MH Sub I, LLC , 332 F.R.D. 713, 716 (N.D. Fla. 2019) (collecting cases); UL LLC v. Space Chariot Inc. , 250 F. Supp. 3d 596, 603–04 & n.2 (C.D. Cal. 2017) (determining when websites began advertising a certification mark and collecting cases). We agree.
Federal courts regularly take judicial notice of web pages made available using the WayBack Machine pursuant to Federal Rule of Evidence 201. See Pohl v. MH Sub I, LLC, 332 F.R.D. 713, 716 (N.D. Fla. 2019) (collecting cases from other districts); UL LLC v. Space Chariot, Inc., 250 F.Supp.3d 596, 604 n.2 (C.D. Cal. 2017) (rejecting argument that the declarant lacked personal knowledge regarding the WayBack Machine and how the website at issue was archived). See Second Circuit Opinion at 18 & n.7 (stating that “the fact that Gutman transferred some or all of her rights in particular content posted on the Disputed Accounts does not by itself support an inference that she transferred ownership of the Disputed Accounts themselves” and that “[r]ights in the Disputed Accounts and rights in content posted on them-including ancillary content like direct messages, captions, profile pictures, and the like-need not be intertwined”).
Similarly, a Northern District of Florida Court held, while ruling on a motion for voluntary dismissal under Rule 41(a)(2), that “a dismissal without prejudice would not confer ‘prevailing party' status to [the] [d]efendant.” Pohl v. MH Sub I, LLC, 407 F.Supp.3d 1253, 1256 (N.D. Fla. 2019). The Pohl Court relied on a ruling from the 9th Circuit, “finding that voluntary dismissal without prejudice does not confer prevailing party status.” Id.
, courts have required the plaintiff to pay reasonable litigation costs as a condition of dismissal. E.g., Pohl v. MH Sub I, LLC, 407 F.Supp.3d 1253, 1257 (N.D. Fla. 2019).
. As to screenshots of a webpage, courts have authenticated screenshots when a witness testifies that she “saw and printed the posting from the . . . website” as “long as the screenshots contain circumstantial indicia of authenticity.” Pohl v. MH Sub I, LLC, 332 F.R.D. 713, 717 (N.D. Fla. 2019); see, e.g., United States v. Gasperini, 894 F.3d 482, 490 (2d Cir. 2018) (authenticating a screenshot taken from an internet archival tool when a witness testified about “the nature and reliability of the [archival tool's] procedures for capturing and cataloguing the contents of the internet at particular times”); United States v. Farrad, 895 F.3d 859, 879 (6th Cir. 2018) (“We see no reason to depart from the ordinary rule that photographs, including social-media photographs, are authenticated by evidence sufficient to support a finding that the photograph is what the proponent claims it is.”
The district court in Pohl v. MH Sub I, LLC, 332 F.R.D. 713 (N.D. Fla. 2019), observed that “[n]umerous courts including [district courts in Florida, California, Michigan, Massachusetts, and Oregon], have taken judicial notice of web pages available through the WayBack Machine.” Id. at 716 (collecting cases).
See, e.g., Pond Guy, Inc. v. Aquascape Designs, Inc., No. 13-13229, 2014 WL 2863871, at *4 (E.D. Mich. June 24, 2014) (“[T]he Internet Archive has been found to be an acceptable source for the taking of the complaint.”); Pohl v. MH Sub I, LLC, 332 F.R.D. 713, 716 (N.D. Fla. 2019) (collecting cases finding that the Internet Archive and WayBack Machine are sources whose accuracy cannot reasonably be questioned). Accordingly, the Court will not take judicial notice of Exhibits N-P.
Furthermore, Ritchey did not provide an archived version of Mansell's webpage. See Pohl v. MH Sub I, LLC, 332 F.R.D. 713, 716 (N.D. Fla. 2019) (“Numerous courts, including our sister courts, have taken judicial notice of web pages available through the WayBack Machine.” (collecting cases)).
. Pohl v. MH Sub I, LLC, 332 F.R.D. 713, 716-718 (N.D. Fla. 2019). The weight of authority suggests that WayBack Machine screenshots, alone, do not carry sufficient authenticity to be considered “undisputed” in the 12(b)(6) context.