Cramton v. Grabbagreen Franchising LLC et al

Filing 349

ORDER: IT IS ORDERED that Defendants' motion for judicial notice (Doc. 308 ) is granted in part and denied in part [see attached Order for details]. Signed by Judge Dominic W Lanza on 10/15/20. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kim Cramton,
Plaintiff,

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ORDER

v.

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No. CV-17-04663-PHX-DWL

Grabbagreen Franchising LLC, et al.,

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Defendants.

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Pending before the Court is Defendants’ motion, pursuant to Rule 201 of the Federal

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Rules of Evidence, to take judicial notice of two categories of facts. (Doc. 308.) First,

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Defendants seek judicial notice of sections 29-681.C and 29-681.D of the Arizona Limited

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Liability Company Act because those statutory provisions are “not subject to reasonable

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dispute” and are incorporated by reference into the ECH Operating Agreement. (Id. at 2-

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4.) Second, Defendants seek judicial notice of an array of specific facts concerning

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Hurricane Irma, which made landfall in Florida in September 2017.

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Defendants contend these facts will be useful at trial because “[t]he central events of this

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case under Counts VII, IX and X during the crucial period of discussions with Kahala in

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August 2017 through the call on September 18, 2017 occurred within days before or after,

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or at the very same time as, the development, approach, impact and immediate aftermath

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of Hurricane Irma on the State of Florida and the Defendants.” (Id.)

(Id. at 4-6.)

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Cramton opposes Defendants’ motion. (Doc. 313.) As for the statutory provisions,

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Cramton argues that Rule 201 only permits judicial notice of adjudicative facts, not

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legislative enactments, and that the appropriate way to introduce legislative enactments at

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trial is through jury instructions. (Id. at 1-2.) As for Hurricane Irma, Cramton argues that

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although “[s]eeking judicial notice of Hurricane Irma at least facially falls under the scope

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of Rule 201 . . . much of what is included in the judicial notice is not relevant.” (Id. at 2.)

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Cramton elaborates that “[t]he projected tracking of the hurricane, what it did over Cuba,

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and where it made landfall has no impact on a September 18, 2017 phone call. At most

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what matters is the impact that it had on Defendants, which Keely Newman can testify to

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without the Court needing to take judicial notice.” (Id.)

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As an initial matter, the Court notes that the statutory provisions and Hurricane Irma

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only pertain to some of the remaining counts in this case—specifically, Counts Seven,

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Nine, and Ten. At the time Defendants filed their motion, the trial on those counts looked

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like it would be a jury trial. However, the Court subsequently granted a different motion

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by Defendants to strike Cramton’s jury demand as to those counts. (Doc. 345.) Thus, to

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the extent Defendants’ purpose in seeking judicial notice was to obtain additional jury

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instructions at trial, see Fed. R. Evid. 201(f), their request may be moot.

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In any event, with respect to the statutory provisions, the Court agrees with Cramton

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that Rule 201—which is the only source of authority cited in Defendants’ motion—does

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not provide a basis for taking judicial notice of them. See, e.g., Lemieux v. Cwalt, Inc.,

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2017 WL 365481, *1 (D. Mont. 2017) (“Plaintiffs ask the Court to take judicial notice of

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several federal and Montana statutes, regulations, and published court decisions. But

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because these statutes, cases, and regulations are ‘legislative facts’ rather than ‘adjudicative

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facts,’ they are not appropriate for judicial notice.”). See also Fed. R. Evid. 201, adv.

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comm. note to 1972 amendments (“This is the only evidence rule on the subject of judicial

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notice. It deals only with judicial notice of ‘adjudicative’ facts. No rule deals with judicial

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notice of ‘legislative’ facts. . . . The omission of any treatment of legislative facts results

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from fundamental differences between adjudicative facts and legislative facts.”); Getty

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Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 322 (1st Cir. 2004)

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(Lipez, J., concurring) (“Although judicial notice of fact and judicial notice of law share

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the phrase ‘judicial notice,’ they draw on different rules of practice. Rule 201 ‘governs

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only judicial notice of adjudicative facts.’ Judicial notice of law is outside the scope of

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Rule 201, and derives from practical considerations and case law that do not rely on Rule

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201 or principles of evidence.”) (citations omitted).

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As for Hurricane Irma, Cramton does not dispute the accuracy of any of the facts

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set forth in Defendants’ motion, or that the facts qualify as “adjudicative” for purposes of

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Rule 201, so the only disputed issue is each fact’s relevance. The Court agrees with

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Cramton that some of the facts are too granular to be helpful—for example, it is unclear

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why it is necessary to take notice of a lengthy series of satellite images (Doc. 308-1 at 16-

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35). Thus, the Court will decline to take judicial notice of those particular facts. See, e.g.,

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Pearson v. Arizona, 2020 WL 5544373, *2 (D. Ariz. 2020) (“Although relevance is not

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explicitly required to satisfy Rule 201, the Ninth Circuit has declined to take judicial notice

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of facts that are irrelevant.”) (citations omitted); Hargis v. Access Capital Funding, LLC,

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674 F.3d 783, 793 (8th Cir. 2012) (“Courts are not required to take judicial notice of

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irrelevant materials.”). On the other hand, the Court accepts that some details concerning

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Hurricane Irma may be relevant in providing context for Defendants’ mental state during

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some of the key events in this case. Accordingly, the Court will take judicial notice that:

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(1) on September 4, 2017, the Florida Governor declared a state of emergency due to

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Hurricane Irma’s impending arrival; (2) between September 6-8, 2017, projections by the

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National Oceanic and Atmospheric Administration (“NOAA”) showed a possible direct hit

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by the eye of Hurricane Irma on the east coast of Florida; and (3) on September 10, 2017,

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Hurricane Irma struck Florida twice, first in the Florida Keys and then on Marco Island.

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Accordingly, IT IS ORDERED that Defendants’ motion for judicial notice (Doc.
308) is granted in part and denied in part, as discussed above.
Dated this 15th day of October, 2020.

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