Amegy Bank National Association v. DB Private Wealth Mortgage, Ltd., et al

Filing 63

ORDER denying without prejudice 53 Plaintiff Amegy Bank National Association's Motion Requesting the Court to Take Judicial Notice of Texas Law. Signed by Judge Sheri Polster Chappell on 10/9/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMEGY BANK NATIONAL
ASSOCIATION,
Plaintiff,
v.

Case No: 2:12-cv-243-FtM-38UAM

DB PRIVATE WEALTH
MORTGAGE, LTD. and DEUTSCHE
BANK ALEX.BROWN,
Defendants.
/
ORDER1
This matter comes before the Court on Plaintiff Amegy Bank National
Association's Motion Requesting the Court to Take Judicial Notice of Texas Law (Doc.
#53 ) filed on September 18, 2013.

Specifically, Plaintiff moves the Court to take

judicial notice of Tex. Penal Code § 32.33(e). Plaintiff asserts that non-party William B.
Johnson has violated the stated criminal code. On October 7, 2013, Defendants DB
Private Wealth Mortgage Ltd. and Deutsche Bank Alex.Brown filed a response in
opposition. (Doc. #61).
The Court recognizes that the Securities Agreement at issue in this case
operates under Texas Law. (See Doc. #53-1). However, Plaintiff has failed to satisfy its
burden of proving that Tex. Penal Code § 32.33(e) is relevant to this instant matter.
1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or Web sites.
These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked
documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other Web sites, this court
does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their
Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus,
the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion
of the court.

United States v. Falcon, 957 F. Supp. 1572, 1585 (S.D. Fla. 1997) (“a court may refuse
to take judicial notice of facts that are irrelevant to the proceeding or (in certain
contexts) otherwise excludable under the Federal Rules.”) (citation omitted). Plaintiff
has not cited to a judgment or conviction in regards to the non-party’s conduct and has
not cited to dispositive case law regarding this issue. Therefore, it is not an
“administrative fact” that said non-party has committed a crime of theft. See Federal
Rule of Civil Procedure 201. Further, this Court in this matter has no authority to
determine if the non-party has committed a crime in the State of Texas. Lastly, Plaintiff
brings forth this motion in anticipation of Defendants’ affirmative defenses; accordingly
Plaintiff’s request is premature at best. The Court finds no proper reason to take judicial
notice of Texas Penal Code § 32.33(e) at this time.
Additionally, the Court notes Plaintiff failed to indicate in its motion that it met and
conferred with opposing counsel prior to filing the motion as required by Local Rule
3.01(g). Counsel is cautioned that failure to include such a certification in a future
motion will result in the motion being denied without further consideration.
Accordingly, it is now ORDERED:
Plaintiff Amegy Bank National Association's Motion Requesting the Court to Take
Judicial Notice of Texas Law (Doc. #53 ) is DENIED without prejudice.
DONE and ORDERED in Fort Myers, Florida this 9th day of October, 2013.

Copies: All Parties of Record

2