Asia Economic Institute et al v. Xcentric Ventures LLC et al

Filing 130

OBJECTIONS to Request for Judicial Notice, Request for Relief,, 119 filed by Defendants Edward Magedson, Xcentric Ventures LLC. (Speth, Maria)

Asia Economic Institute et al v. Xcentric Ventures LLC et al

Doc. 130

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Maria Crimi Speth (Admitted Pro Hac Vice) JABURG & WILK, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone] David S. Gingras, CSB 218793 [e-mail] GINGRAS LAW OFFICES, PLC 4072 E. Mountain Vista Dr. Phoenix, AZ 85048 [phone] Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ASIA ECONOMIC INSTITUTE, a California LLC; RAYMOND MOBREZ an individual; and ILIANA LLANERAS, an individual, Plaintiffs, v. XCENTRIC VENTURES, LLC., et. al., Defendants. Case No: 2:10-cv-01360-SVW-PJW OPPOSITION OF DEFENDANTS TO REQUEST OF PLAINTIFFS TO TAKE JUDICIAL NOTICE OF JURY INSTRUCTIONS AND CONVICTION (Assigned to the Honorable Stephen V. Wilson) Date: September 20, 2010 Time: 1:30 p.m. Courtroom: 6

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Defendants Xcentric Ventures, LLC and Ed Magedson oppose "Plaintiffs' Request" (i.e. "Request of Plaintiffs to Take Judicial Notice of Jury Instructions and Conviction in United States v. Sypher, 09-CR-85 (W.D. KY. Aug 4-6, 2010) In Support of Plaintiffs' Motion for Reconsideration") on the grounds that the subject matter of the request is not appropriate for judicial notice pursuant to Rule 201, Federal Rules of
Opposition to Request of Plaintiffs to Take Judicial Notice of Jury Instructions and Conviction 2:10-cv-01360-SVW-PJW

Dockets.Justia.com

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Evidence, because it is not "adjudicative fact" as required by Rule 201. Also, taking judicial notice of the documents from the unrelated case would be prejudicial to Defendants. I. PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE IS NOT ABOUT ADJUDICATIVE FACTS PURSUANT TO RULE 201, AND IS PREJUDICIAL. Plaintiff requests this Court to take judicial notice "pursuant to Federal Rule of Evidence 201" of a conviction and jury instructions from a recent criminal case in Kentucky that has nothing to do with the parties involved in this case, and nothing to do with facts at issue in this case. (See Plaintiffs' Request p.2 l. 1) The requested material is completely unrelated to the facts of this case. Recently, in August of 2010, a U.S. District Court in the Western District of Kentucky convicted a woman named Karen Sypher for several specific misdeeds. The crimes included filing a false criminal complaint, lying to the FBI about an intimate personal relationship which she called "strictly business," lying to the FBI about her knowledge of the person who made an extortionate telephone call, mailing a threat to accuse Richard Pitino of a crime and injure his reputation in order to extort money, and, presumably, helping someone make a phone call for the same purpose. Karen Sypher had nothing to do with the case in this Court, and none of the actions at issue in her criminal prosecution have any bearing on the issues before this Court in this civil case. The jury instructions and conviction record from that case are not proper subjects for judicial notice in this case. Rule 201 of the Federal Rules of Evidence governs the taking of judicial notice of "adjudicative facts." Adjudicative facts are facts about the case that go to the jury for decision. When a court finds facts concerning the immediate parties, who did what, where, when, how and with what motive or intent the, court is performing an adjudicative function, and the facts are called adjudicative facts. . . . They are the facts that normally go to a jury in a jury case. They relate to the parties, their activities, their businesses.

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Opposition to Request of Plaintiffs to Take Judicial Notice of Jury Instructions and Conviction

2:10-cv-01360-SVW-PJW

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

United States v. Gould, 536 F.2d 216, 219-20 (8th Cir. 1976) (quoting Kenneth Davis, Administrative Law Treatise § 15.03 at 353 (1958)). The materials requested for judicial notice by the Plaintiffs are not adjudicative facts because they have nothing to do with the parties to this case, their activities, or their business. As stated in Plaintiffs' Request, the case of Allen v. City of Los Angeles stands for the proposition that a Court of Appeals may take notice of proceedings in other courts, if those proceedings have direct relation to the matters at issue. Allen v. City of Los Angeles, 92 F.3d 842 (9th Cir. 1996). In that case, L.A. police officers Stacey Koon and Laurence Powell sued the City of Los Angeles to reimburse their legal fees from a civil lawsuit brought by beating victim Rodney King. Los Angeles was not liable to reimburse the officers because Koon and Powel beat King with deliberate wrongful intent. The 9th Circuit Court of Appeals affirmed the trial court in that respect, taking judicial notice of criminal court findings that Powell intended to inflict bodily harm, and that Koon intended to have Powell "gain pain compliance, and then to `cripple' King and `break [King's] bones." Allen v. City of Los Angeles, 92 F.3d 842, 850 ­ 51 (9th Cir. 1996). The criminal court records judicially noticed in the cited case had direct relation to the matters at issue in the cited case. The Sypher case criminal records from western Kentucky have no relation to the matters at issue in this Court. There is nothing in the jury instructions and conviction record proffered by Plaintiffs that is directly related to the matters in this Court. They do not indisputably apply to the parties, activities, and business at issue in this case. The Allen v. City of Los Angeles case would prevent judicial notice of the proffered proceedings from the Western District of Kentucky. Rule 201 provides that "In a civil action or proceeding, the Court shall instruct the jury to accept as conclusive any fact judicially noticed." Fed.R.Evid. 201(g) (1975). Plaintiff apparently wants this Court to instruct a jury in this case to "accept as conclusive" a conviction, and some criminal jury instructions, from a western Kentucky criminal case with no relation whatsoever to the facts or people in this case. That would be confusing to the jury and prejudicial to the Defendants. It would NOT be appropriate
Opposition to Request of Plaintiffs to Take Judicial Notice of Jury Instructions and Conviction 2:10-cv-01360-SVW-PJW

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

to take judicial notice pursuant to Rule 201. "It is clear that the reach of Rule 201 extends only to adjudicative, not legislative, facts." United States v. Gould, 536 F.2d 216, 219 (8th Cir. 1976). Rule 201(g) is not applicable to subject matter that is not adjudicative fact. Id., 536 F.2d at 221 (stating that it would be "preposterous" to apply Rule 201(g)). In fact, it has been held to be an abuse of discretion and reversible error to take judicial notice pursuant to Rule 201(g) of matters that do not indisputably apply to the case at hand, even factual findings from related prior litigation. For example, in the case General Electric Capital Corp. v. Lease Resolution Corp, after a defendant settled a previous class action suit by transferring 95% of its assets to plaintiff class members, it was an abuse of discretion and reversible error for a federal trial court in a subsequent case to take judicial notice that the transfer was found to be fair, reasonable, and adequate. Gen. Elect. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1082-83 (7th Cir. 1997) The issue in the subsequent case was not whether the settlement was fair to the class members, but whether it was fraudulent as to prior unsecured creditors such as G.E. Capital, because the assets may have been more valuable than the class member claims. Id. "Thus we believe the district court abused its discretion by taking judicial notice of this earlier finding without establishing that the fact may indisputably be applied in the later proceedings." Id. The case in this Court obviously has even greater dispute about the applicability of the unrelated jury instructions and convictions records from the unrelated Kentucky criminal case. Likewise, judicial notice of subject matter that is outside of adjudicative fact may prejudicially influence the outcome of a case. For example, in the case Qualley v. Clo-Tex International, Inc., it was a reversible abuse of discretion for a federal trial court to take judicial notice that, generally speaking, there were well-known Nigerian fraud scams involving oil deals that never materialized, because those judicially noticed facts were outside the scope of Rule 201 and "did not specifically concern the parties before the court." Qualley v. Clo-Tex Int'l, Inc. 212 F.3d 1123, 1128 (8th Cir. 2000). The general facts, though true, were prejudicial to defendants accused of participating in the fraudulent
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

behavior of others after the trial court "interjected" the facts into the jury's deliberations through judicial notice pursuant to Rule 201. Id., 212 F.3d at 1131-32. It would be prejudicial to interject the unrelated jury instructions and conviction records into the case through the process of judicial notice. II. OTHER CASES CITED IN PLAINTIFFS REQUEST ARE DISTINGUISHABLE. Plaintiff cites case law to support the request for judicial notice, but the cases are factually different than the circumstances of the case before this Court. In Reyn's Pasta Bella, LLC v. Visa USA, Inc., plaintiffs attempted to collaterally attack a class action settlement. The court took judicial notice of documents in the underlying class action litigation that showed that the plaintiffs had been class members represented by counsel in the settlement, and had litigated all the relevant issues in a fairness hearing about the settlement, and thus were precluded from re-litigating the issues. Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 ­ 47 (9th Cir. 2006). The subject matter for judicial notice, consisting of court filings and the like, was irrefutably related to the subsequent litigation and involved the same parties and the same actions. In Bryant v. Clarleson, 444 F.2d 353, (9th Cir. 1971), welfare recipients sued California's Director of the Department of Social Welfare to force increases in welfare payments, in July 1969. In a hearing that took place after April of 1971, the 9th Circuit took judicial notice of "a number of developments since the taking of this appeal, called to our attention by the parties, since the circumstances may affect our consideration of the various issues presented." Id., 444 F.2d at 357. Those developments included presenting evidence to the district court about compliance with orders in the underlying case, amendments to the order in the underlying case, decisions of the California Supreme Court granting additional authority to the Director, the plaintiffs' motion to dismiss their appeal, and other significant legal developments pertaining directly to the case. Id., 444 F.2d at 357 ­ 58. Also, there was no dispute that judicial notice of those developments was appropriate. The matter before this Court bears no significant resemblance to those
Opposition to Request of Plaintiffs to Take Judicial Notice of Jury Instructions and Conviction 2:10-cv-01360-SVW-PJW

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

facts because the Plaintiff here seeks judicial notice for records from a completely unrelated case, over Defendants' objections. III. CONCLUSION For the reasons stated, Defendants oppose the Request of Plaintiffs to Take Judicial Notice of Jury Instructions and Conviction in United States v. Sypher, 09-CR-85 (W.D. KY. Aug 4-6, 2010), and request the Court to deny the request. DATED this 30th day of August, 2010.

JABURG & WILK, P.C.

/s/Maria Crimi Speth Maria Crimi Speth Attorneys for Defendants

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Opposition to Request of Plaintiffs to Take Judicial Notice of Jury Instructions and Conviction 2:10-cv-01360-SVW-PJW

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Certificate of Service I hereby certify that on the 30th day of August, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Ms. Lisa Borodkin, Esq. Mr. Daniel F. Blackert, Esq. Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Attorneys for Plaintiffs [e-mail] [e-mail]

And a courtesy copy of the foregoing delivered to: Honorable Stephen V. Wilson U.S. District Court Judge /s/Debra Gower

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Opposition to Request of Plaintiffs to Take Judicial Notice of Jury Instructions and Conviction 2:10-cv-01360-SVW-PJW

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