Couch v. Broward County et al
ORDER denying 5 Plaintiff's Petition to Take Judicial Notice II; denying 6 Plaintiff's Petition to Take Judicial Notice; denying 11 Plaintiff's Petition to Take Judicial Notice III Writ of Error Supreme; denying 12 Plaintiff 39;s Petition to Take Judicial Notice; denying 13 Plantiff's Petition to Take Judicial Notice IV; denying 14 Plaintiff's Petition to Take Judicial Notice Motion V; denying 15 Plaintiff's Petitin to Take Judicial Notice Writ of Error. Signed by Ch. Magistrate Judge Barry S. Seltzer on 6/5/2012. (kas)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-62126-CIV-WILLIAMS/SELTZER
CALVIN L. COUCH,
BROWARD COUNTY, AL LAMBERTI,
CANINE CHANCE, ANDREW B. WEIMAN,
JOSEPH CORSI, KEVIN MCCLEAN, and
ORDER DENYING PLAINTIFF’S PETITIONS FOR JUDICIAL NOTICE
THIS CAUSE is before the Court on seven separate Petitions for Judicial Notice
filed by pro se Plaintiff Calvin L. Couch. Federal Rule of Evidence 201 governs judicial
notice of adjudicated facts.1 Under Rule 201, “courts can take notice of certain facts
Rule 201 applies only to requests to take judicial notice of adjudicative facts; it
does not govern judicial notice of legislative facts or judicial notice of law. In a concurring
opinion, the court in Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312
(1st Cir. 2004), explained the different types of judicial notice:
“Adjudicative” facts, which are governed by Fed.R.Evid. 201,
are “simply the facts of the particular case.” Fed. R. Evid.
201(a) advisory committee's note. “Legislative facts,” by
contrast, include facts “which have relevance to legal
reasoning and the lawmaking process, whether in the
formulation of a legal principle or ruling by a judge or court or
in the enactment of a legislative body.” Id. . . . Judicial notice
of legislative facts is not governed by Rule 201. Fed.R.Evid.
201(a); Fed.R.Evid. 201(a) advisory committee's note. Judicial
notice of law is the name given to the commonsense doctrine
that the rules of evidence governing admissibility and proof of
documents generally do not make sense to apply to statutes
without formal proof but only where the fact in question is ‘one not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.’” Shahar v. Bowers, 120 F.3d 211, 214 (11th
Cir. 1997) (en banc) (quoting Fed. R. Civ. P. 201(b)). “For example, the kinds of things
about which courts ordinarily take judicial notice are (1) scientific facts: for instance, when
does the sun rise or set; (2) matters of geography: for instance, what are the boundaries
of a state; or (3) matters of political history: for instance, who was president in 1958.” Id.
“The taking of judicial notice of facts is, as a matter of evidence law, a highly limited
process. The reason for this caution is that the taking of judicial notice bypasses the
safeguards which are involved with the usual process of proving facts by competent
evidence in district court.” Id.; see also Getty Petroleum Mktg., Inc. v. Capital Terminal Co.
391 F.3d 312, 321 (1st Cir. 2004) (concurring opinion) (“Judicial notice of fact is an
evidentiary shortcut. It permits facts in a particular case to be established without proof by
admissible evidence. . . .”); Fed. R. Civ. P. 201(g) (“In a civil action or proceeding, the court
or judicial opinions-which are technically documents-because
they are presented to the court as law, not to the jury as
evidence. See John W. Strong, McCormick on Evidence § 335
(5th ed. 1999) (“The heavy-footed common law system of
proof by witnesses and authenticated documents is too slow
and cumbrous for the judge's task of finding what the
applicable law is.”). In the federal system, “[t]he law of any
state of the Union, whether depending upon statutes or upon
judicial opinions, is a matter of which the courts of the United
States are bound to take judicial notice, without plea or proof.”
Lamar v. Micou, 114 U.S. 218, 223, 5 S.Ct. 857, 29 L.Ed. 94
(1885); White v. Gittens, 121 F.3d 803, 805 n. 1 (1st Cir.1997).
Id. at 322 n.12.
shall instruct the jury to accept as conclusive any fact judicially noticed.”). “The party
requesting judicial notice bears the burden of persuading the court that the particular fact
is not reasonably subject to dispute and is capable of immediate and accurate
determination by resort to a source whose accuracy cannot reasonably be questioned.”
Rodriguez v. Unknown-Named Disciplinary Hearings Agent , No. 02:09-cv-02195-FCD KJN
PS, 2010 WL 1407772, at *2 (E.D. Cal. Mar. 9, 2010) (internal quotation marks omitted).
After carefully considering Plaintiff’s Petitions to Take Judicial Notice, this Court
concludes that all Petitions must be denied for a variety of reasons. First, and most
significantly, even after reviewing each of Plaintiff’s lengthy2 Petitions several times, this
Court has been unable to identify the specific “facts” that Plaintiff requests the Court to
judicially notice.3 See Colonial Leasing Co. of New England, Inc. v. Logistics Control
Group Int’l, 762 F.2d 454, 459 (5th Cir. 1985) (“The identity of the adjudicative fact of which
the court intends to take notice is, of course, the threshold issue in examining the propriety
of judicial notice.”). For the most part, Plaintiff’s Petitions consist of ramblings about
various, oft-repeated subjects that either are not appropriate for judicial notice and/or have
no relevance to the instant action. See Hargis v. Access Capital Funding, LLC, 674 F.3d
One of Plaintiff’s Petitions is 41 pages (exclusive of attachments) (DE 15) and
another Petition is 34 pages (exclusive of attachments) (DE 11); together, the 7 Petitions
total 122 pages (exclusive of attachments).
The Court notes that one of Plaintiff’s Petitions (DE 41) is styled “Petition to Take
Judicial Notice . . . Recognizing Abraham Lincoln’s Birthday.” An examination of the
Petition, however, reveals that Plaintiff never specifically requests that the Court take
judicial notice of Abraham Lincoln’s birthday. The only mention of Abraham Lincoln in the
41-page Petition is that the case number of the instant case – 62126 – includes Abraham
Lincoln’s birthday – 2-12 – and that “Abraham’s Lincoln’s birthday 2+1=2 be 5 million
dollars United States currency,” and that Abraham Lincoln was humble as is Plaintiff.
783, 793 (8th Cir. 2012) (“Courts are not required to take judicial notice of irrelevant
materials.”); Gisclair v. Galliano Marine Service No. 05-5223, 2007 WL 1238902, at *2
(E.D. La. Apr. 2007) (“[I]t is generally agreed that courts may not take judicial notice of
irrelevant facts. . . .”). Additionally, in some Petitions, Plaintiff indicates that he has
attached documents, but has failed to do so, and he has attached documents to other
Petitions that do not appear to have any bearing on the instant case, such as a certificate
indicating Plaintiff’s father was honorably discharged from the United States Army and
portions of an (unidentified) article discussing attorney Howard Finklestein’s opinion about
funding cuts to the state courts. See Northview Christian Church, Inc. v. J & J Group, Inc.,
No. 4:10-cv-382-BLW, 2011 WL 1539714, at *1 (D. Idaho Apr, 21, 2011) (court declined
to take judicial notice of documents without knowing the purpose for which the plaintiff
intended to use them).
In Mascitti v. Quarterman, No. C-09-093, 2009 WL 4728003, at*1 (S.D. Tex. Dec.
3, 2009), the court denied a motion to take judicial notice for the following reasons:
First, [the petitioner’s] motion fails to provide “a careful
delineation of the fact to be noticed.” 21B Charles Alan Wright
& Kenneth Graham, Federal Practice and Procedure § 5107.1
(2d ed.2005). Second, it does not establish “the purpose and
relevance of the noticed fact.” Id. Third, petitioner also does
not include in his motion any “authority for noticing the fact.” Id.
Fourth, he fails to provide “the source of ‘indisputable
accuracy’ for an ‘ascertainable fact’ under Rule 201(b)(2).” Id.
(emphasis added). Failure to address any one of these factors
would arguably undercut a request for judicial notice.
Collectively, petitioner's failure to address these factors dooms
Id. (emphasis in original). Plaintiff’s Petitions to Take Judicial Notice in the instant case
suffer from the same (and more) deficiencies as the motion to take judicial notice in
Mascitti. And just as in Mascitti, these deficiencies “doom” Plaintiff’s Petitions here.
Accordingly, it is hereby ORDERED that the following Petitions to Take Judicial Notice are
Plaintiff’s Petition to Take Judicial Notice II (DE 5);
Plaintiff’s Petition to Take Judicial Notice (DE 6);
Plaintiff’s Petition to Take Judicial Notice III [plus] Writ of Error Supreme
Plaintiff’s Petition to Take Judicial Notice (DE 12);
Plaintiff’s Petition to Take Judicial Notice IV (DE 13);
Plaintiff’s Petition to Take Judicial Notice V (DE 14); and
Plaintiff’s Petition to Take Judicial Notice Writ of Error (DE 15).
Plaintiff is advised that any Petition or Motion to Take Judicial Notice in the
future must identify the authority under which he brings the Petition or Motion,
clearly and concisely identify the fact or law that he wishes the Court to judicially
notice and the purpose and relevancy of the noticed fact.
adjudicative facts, Plaintiff must provide the source of indisputable accuracy for an
ascertainable fact under Rule 201(b)(2). Failure to do so may result in the Court
summarily denying the Petition or Motion to Take Judicial Notice.
DONE AND ORDERED in Fort Lauderdale, Florida, this 5th day of June 2012.
Calvin L. Couch
1595 SW 3rd Avenue
Dania Beach, FL 33004
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