Securities and Exchange Commission v. Nadel et al

Filing 1345

NOTICE to the Courts to take judicial notice regarding a certified transcript of the 12.8.16 oral argument before the US Court of Appeals for the 11th Circuit in a related proceeding by Wells Fargo Bank, N.A.. (Attachments: # 1 Exhibit A)(Wirth, Steven)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SECURITIES AND EXCHANGE
COMMISSION
Plaintiff,
v.
ARTHUR NADEL,
SCOOP CAPITAL, LLC,
SCOOP MANAGEMENT, INC.,
Defendants,

CASE NO.: 8:09-0087-T-26TBM

SCOOP REAL ESTATE, L.P.,
VALHALLA INVESTMENT PARTNERS, L.P.,
VALHALLA MANAGEMENT, INC.,
VICTORY IRA FUND, LTD.,
VICTORY FUND, LTD.,
VIKING IRA FUND, LLC.,
VIKING FUND, LLC., and
VIKING MANAGEMENT, LLC.
Relief Defendants.
_______________________________________________/
WELLS FARGO BANK N.A.’S REQUEST FOR JUDICIAL NOTICE
Wells Fargo Bank, N.A. (“Wells Fargo” or “Bank”),1 pursuant to Rule 201 of the
Federal Rules of Evidence, respectfully requests that this Court take judicial notice of a
certified transcript of the December 8, 2016 oral argument before the United States Court of
Appeals for the Eleventh Circuit in the related proceeding captioned SEC v. Wells Fargo Bank,
N.A., 848 F.3d 1339 (11th Cir. 2017) (the "Certified Hearing Transcript")2, for use as

1
2

Wells Fargo is successor by merger to Wachovia Bank, N.A. (“Wachovia”).
A copy of the Certified Hearing Transcript is attached hereto as Exhibit A.

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evidence in the pending disputes between the Bank and the Receiver in this case. In addition,
if the Court would prefer to listen to the oral argument, Wells Fargo requests entry of an order
permitting Wells Fargo to file a copy of an audio recording of the oral argument (the "Oral
Argument Recording") with the Clerk.3
MEMORANDUM OF LAW IN SUPPORT OF REQUEST
The Court may take judicial notice of “a fact that is not subject to reasonable dispute if
it is either: (1) 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.” Fed. R. Evid. 201(b). Judicial notice is mandatory “if a party requests it and the
court is supplied with the necessary information.” Fed. R. Evid. 201(c). As the Eleventh
Circuit has explained, “[j]udicial notice is a means by which adjudicative facts not seriously
open to dispute are established as true without the normal requirement of proof by evidence.”
Dippin’ Dots, Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197, 1204 (11th Cir. 2004) (citing
Fed. R. Evid. 201(a) & (b)).

“The court may take judicial notice at any stage of the

proceeding.” Fed. R. Evid. 201(d).
A court may take judicial notice of matters of public record. See Univ. Express, Inc. v.
S.E.C., 177 Fed.Appx 52, 53 (11th Cir. 2006) (per curiam) ("Public records are among the
permissible facts that a district court may consider.") A court may also take notice of
proceedings in other courts, both within and without the federal judicial system. See U.S. v.
Jones, 29 F.3d 1549 (11th Cir. 1994) ("It [is] recognized that a court may take judicial notice

3

The Oral Argument Recording is matter of public record and was obtained by request to the Clerk of Court for
the United States Court of Appeals for the Eleventh Circuit, 56 Forsyth St., NW, Atlanta, GA 30303. A copy of
the Oral Argument Recording will be provided to the Court and/or the Receiver upon request to Wells Fargo.

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of a document filed in another court" (quotation and citation omitted)). Judicial notice of other
judicial proceedings is proper to recognize judicial acts taken, the subject matter of the
litigation, the issues decided, and to clarify the meaning of court orders. See In re Dynamic
Tours & Transp., Inc., 359 B.R. 336, 342 (Bankr. M.D. Fla. 2006); see also Martin K. Eby
Const. Co., Inc. v. Jacobs Civil, Inc., 3:05-CV-394-J-32TEM, 2006 WL 1881359, at *1 (M.D.
Fla. July 6, 2006) (taking judicial notice of records of two related cases in ruling on motion to
dismiss and stating the court may consider the record in previous cases to clarify the meaning
of court orders in those cases).
“Courts routinely take judicial notice of publicly available records, including hearing
transcripts, from other court proceedings.” Foster Poultry Farms v. Alkar-Rapidpak-MP
Equip., Inc., 868 F. Supp. 2d 983, 990 (E.D. Cal. 2012); Pickup v. Brown, No. 2:12-CV-02497KJM, 2012 WL 6024387, at *3 (E.D. Cal. Dec. 4, 2012) (transcripts from other court
proceedings are proper subjects of judicial notice). Because transcripts of oral arguments are
matters of public record and their accuracy is not reasonably subject to debate, judicial notice
is proper. See Barnes v. Routh Crabtree Olsen, PC, 3:15-CV-01001-BR, 2016 WL 81799, at
*3 (D. Or. Jan. 7, 2016).
Here, Wells Fargo has satisfied the requirements for judicial notice because the records
consist of a Certified Hearing Transcript of a federal appellate court proceeding, is a public
record, and all other requirements of Rule 201 of the Federal Rules of Evidence have been met.
The Certified Hearing Transcript will elaborate on the Eleventh Circuit's reasoning set forth in
its decision in SEC v. Wells Fargo Bank, N.A., 848 F.3d 1339 (11th Cir. 2017), document the
Eleventh Circuit's judicial acts taken, and clarify the meaning of its decision and its relevancy

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to two pending motions before this Court (i.e., the Motion for Order Directing Receiver to
Turnover Rents from Rite Aid Property [Doc. 1332], and the Motion for Payment of Certain
Fees and Costs as Administrative Expenses [Doc. 1334]). As noted above, courts around the
country have recognized these as proper bases upon which a district court may take judicial
notice of court records from related proceedings. Now that the Receiver has filed his
"objections" to the pending motions, it is imperative that the Court have an opportunity to
review the transcript, as the Receiver has mischaracterized and misconstrued the Eleventh
Circuit's decision. A review of the transcript will show that the Eleventh Circuit was clearly
troubled by the Receiver's actions, which it did not believe were either fair or equitable.
Finally, Wells Fargo understands that the Clerk's office requires entry of a specific
order before a party can file a copy of an audio recording. So, if the Court would prefer to
listen to "Oral Argument Recording," rather than read the transcript, Wells Fargo requests entry
of such an order.
WHEREFORE, Wells Fargo respectfully requests that the Court take judicial notice of
the Certified Hearing Transcript as evidence for use in the pending disputes between the Bank
and the Receiver in this case, permit Wells Fargo to file the audio recording itself, or both.
LOCAL RULE 3.01(g) CERTIFICATION
Counsel for Well Fargo has conferred with counsel for the SEC and counsel for the
Receiver. The SEC's counsel indicated that it would adopt the Receiver's position, whatever
it is; and the Receiver's counsel indicated that the Receiver cannot agree to the request because
they "don’t understand what the purpose or how the transcript is to be used."

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Respectfully submitted,
/s/ Steven R. Wirth
AKERMAN LLP
L. Joseph Shaheen, Jr.
Florida Bar No.: 212385
Email: [e-mail]
Steven R. Wirth
Florida Bar No.: 170380
Email: [e-mail]
401 East Jackson Street, Suite 1700
Tampa, Florida 33602
Telephone: [phone]
Facsimile: [phone]
Counsel for Wells Fargo, N.A
CERTIFICATE OF SERVICE
I hereby certify that on December 27, 2017, I electronically filed the foregoing with the
Clerk of the Court by using the CM/ECF system.
Steven R. Wirth

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