In Uncategorized on 12/14/2017 at 15:25

Judge Pugh has a nutshell essay on FRCP 201(b). Since a lot of litigants (and not only the self-representeds) think the Rule extends a lot farther than it does, it well repays them to take a look at Anthony Meggs & Beth Meggs, Docket No. 14604-12, filed 12/14/17.

This is a day to celebrate, but my reason therefor has nothing to do with this order. She’ll always be The Girl of My Dreams.

Back to work.

IRS wants Judge Pugh to take some judicial notice.  OK, says Judge Pugh, I will. But not of everything you want.

But first, the boundaries. “To do so we must ask whether the fact is ‘not subject to reasonable dispute, [and therefore appropriate for judicial notice,] because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.’ Rule 201(b), Federal Rules of Civil Procedure.” Order, at p. 1.

First, that a certain person or entity filed a bankruptcy petition. Okay, PACER tells us that, and it’s an official website. Second, that there were filed schedules of assets. Okay, again; at ten cents a page we can download the lot.

But item number three is the bridge too far.

“But the key fact that respondent wants us to find is that [Bankruptcy debtor] did not list petitioner’s patent application as an asset on those schedules. While that might be determined from a review of the schedules, we do not believe that is a judicial fact we should find.” Order, at p. 1.

Why not? If you can read the schedules as filed with the Bankruptcy Court, you can tell what Bobby Frost wanted to know when he went wall-mending: “What I was walling in or walling out.” Judge Pugh tells me why not.

“Respondent asks us to take judicial notice of the contents of the bankruptcy filings to argue that [Bankruptcy debtor] did not attribute any value to the IP that Mr. Meggs transferred to [Bankruptcy Debtor]. That is respondent would have us rely on the filings for the truth of the matters asserted therein. We do not believe this is appropriate. First, and most simply, petitioners have reasonably disputed the underlying fact -whether the omission of the asset means that [Bankruptcy debtor] did not assign value to the patent.

“Moreover, most of the cases cited by respondent do not find judicial facts based on specific statements in filings in other judicial proceedings; rather these cases limit the judicial facts to the fact of the filings in those proceedings, such as the fact that the party filed for bankruptcy or the IRS filed a proof of claim.” Order, at pp. 1-2. (Citations omitted, but get them for your memo of law).

In the one case where Tax Court did look at the contents of a bankruptcy petition, it was only to see if the filing ousted Tax Court of jurisdiction per 11USC§362(a)(8). There was no finding of judicial fact to resolve the underlying case.

The bankruptcy petition was filed; that may be noticed. That the statements therein are true and complete, is a matter for proof on the trial. What was the intent or motivation of the party making such statements, much less the effects thereof, cannot be “noticed,” but must await trial.

Judge Pugh will notice item four, the abandonment of the patent application. The US Patent Office’s website is a trustworthy source. But.

“We question the relevance of the abandonment of the patent application two years after transfer but we will not rule on relevance now – rather we will allow the parties to address this is post-trial briefing in the context of the other facts they believe have been established in this case.” Order, at p. 3.

In short, judicial notice, Federal style, is somewhat like the “excited utterance”  hearsay exception: the statement is offered for the fact that it was made, not for the truth of the statement.



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