It's My Party, Inc. et al v. Live Nation, Inc.

Filing 100

MEMORANDUM. Signed by Judge J. Frederick Motz on 1/10/2012. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IT’S MY PARTY, INC. and
IT’S MY AMPHITHEATRE, INC.,
Plaintiffs,
v.
LIVE NATION, INC.,
Defendant.

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Civil No. JFM-09-547

MEMORANDUM
Plaintiffs, It’s My Party, Inc. (“IMP”) and It’s My Amphitheatre, Inc. (“IMA”), filed
antitrust claims under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, Section 4 of
the Clayton Act, 15 U.S.C. § 15, and under the Maryland Antitrust Act, as well as common law
claims for tortious interference with contract and unfair competition. Plaintiffs allege that
defendant, Live Nation, has deliberately and unlawfully acquired monopoly power in the concert
promotion industry, thereby entitling plaintiffs to compensatory, treble, and punitive damages,
attorneys’ fees, and injunctive relief. Now pending before the court is defendant Live Nation’s
motion for judicial notice of Exhibits 9 and 11–13 of the Lucy Yen Declaration in support of
Live Nation’s motion for summary judgment. Live Nation’s motion for judicial notice is denied.
BACKGROUND
It’s My Party, Inc. (“IMP”) is a concert promotion business, and It’s My Amphitheatre,
Inc. (“IMA”) is a related venue management business, both of which are run by Seth Hurwitz,
who operates in and around the Baltimore/Washington, D.C. area. (Def.’s Mot. Summ. J. at 2,
ECF 74.) Live Nation is an international concert promoter. (Id. at 5.) IMP/IMA alleges that

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Live Nation is engaged in unlawful tying arrangements, has unlawfully gained a monopoly in the
concert promotion business, and has tortiously interfered with contracts and engaged in unfair
competition.
In conjunction with its motion for summary judgment (which is not yet ripe because
IMP/IMA were recently granted an extension to file their opposition), defendant Live Nation
seeks judicial notice of four exhibits: (1) Plaintiffs IMP/IMA’s objections to a proposed merger
between Live Nation and Ticketmaster, filed in the United States District Court for the District of
Columbia; (2) the United States’ response to IMP/IMA’s objections; (3) IMP/IMA’s verified
complaint filed in the Circuit Court of Maryland for Anne Arundel County, seeking injunctive
relief against Live Nation’s plans to build a concert venue; and (4) the court order dismissing the
Anne Arundel County Circuit Court complaint. Live Nation asserts that all four exhibits are
public records, which may be judicially noticed according to Federal Rule of Evidence 201, and
that the exhibits reflect IMP/IMA’s history of failed legal challenges against Live Nation,
thereby lending credibility to Live Nation’s defense in this action. (Def.’s Reply in Support of
Mot. for Jud. Notice at 1, ECF No. 92.)
ANALYSIS
A court may take judicial notice of adjudicative facts. Adjudicative facts, as opposed to
legislative facts, “are simply the facts of the particular case.” Fed. R. Evid. 201(a) advisory
committee’s note. Legislative facts “are those 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. “[A]djudicative facts are facts about the parties
and their activities, businesses, and properties; they usually answer the questions of who did

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what, where, when, how, why, and with what motive or intent . . . .” Dashiell v. Meeks, 913
A.2d 10, 26 n.6 (Md. 2006). Though a court may take judicial notice of adjudicative facts, the
general rule “is that a court will not travel outside the record of the case before it in order to take
notice of proceedings in another case, even between the same parties, and in the same court,
unless the proceedings are put in evidence; and the rule is sometimes enforced with considerable
strictness.” Id. at 26 (internal quotation marks omitted) (citing Morse v. Lewis, 54 F.2d 1027,
1029 (4th Cir. 1932)). In rare cases, however, the court may, in its discretion, judicially notice
an adjudicative fact that is “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.” Fed. R.
Evid. 201(b).
Rule 201 limits judicial notice to adjudicative facts, which must be not only relevant but
also not subject to reasonable dispute. Thus, for the court to judicially notice the four exhibits at
issue, they must constitute or contain adjudicative facts. The exhibits reference prior antitrust
objections made by IMP/IMA regarding a proposed merger between Live Nation and
Ticketmaster, the Justice Department’s response to those filings, and a prior state court
proceeding between Live Nation and IMP/IMA. The DOJ’s response to IMP/IMA’s objections
and the state court’s order dismissing IMP/IMA’s complaint are not adjudicative facts but rather
opinions and legal conclusions. If Live Nation argues that the mere fact of prior objections, the
DOJ’s response, and dismissal of state court proceedings is relevant to its defense, that fact may
be adjudicative, but the legal conclusions contained therein are not.
Moreover, Live Nation asserts that the four exhibits are relevant to establishing its
defense in this action, but in its motion for summary judgment Live Nation does not offer any
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specific explanation as to how these exhibits are relevant to its defense. As IMP/IMA point out
in their opposition to Live Nation’s motion for judicial notice, Live Nation describes the facts
underlying the four exhibits in detail in the undisputed facts section of its motion for summary
judgment (Def.’s Mot. Summ. J. at 5), but Live Nation’s legal argument does not reference the
exhibits or the litigation and objections to which they pertain. In support of its motion for
judicial notice, Live Nation suggests that the exhibits are relevant because IMP/IMA’s objections
to the proposed Ticketmaster merger and IMP/IMA’s state court complaint contained allegations
similar to those asserted here, which were rejected by both the DOJ and the Anne Arundel
County Circuit Court. Live Nation contends that the DOJ and the Anne Arundel Circuit Court’s
finding that IMP/IMA overstated Live Nation’s position in the market indicates that IMP/IMA
cannot establish monopoly power and tying in this case either. While these prior allegations and
decisions are loosely relevant to the instant case because they also involved Live Nation and
antitrust law, Live Nation cannot assert a defense to this new antitrust claim based on the fact
that prior antitrust claims involving other activity were unsuccessful. It is therefore unclear
exactly how the exhibits are relevant to Live Nation’s defense. The only apparent use for
introducing the exhibits into evidence (let alone judicially noticing them) is to establish that
IMP/IMA has made unsuccessful objections and brought at least one failed legal challenge
against Live Nation in the past for activity unrelated to the instant action. Other than serving as
background to a characterization of IMP/IMA as litigious, it is unclear how else these exhibits
are relevant.
Even if it is true that the four exhibits are relevant to Live Nation’s defense, to be granted
judicial notice, the exhibits must also be either (1) generally known within the territorial
jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to
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sources whose accuracy cannot reasonably be questioned. While the fact of the filings and
proceedings is capable of accurate determination by resort to the public record, the truth of the
contents of the exhibits is open to reasonable dispute. Undoubtedly, Live Nation disputes
IMP/IMA’s objections to the proposed Ticketmaster merger, IMP/IMA disputes the DOJ’s
response to their objections, Live Nation disputes the allegations in IMP/IMA’s state court
complaint, and IMP/IMA disputes the decision to dismiss their state court action. Because the
contents of the exhibits are reasonably disputed, they do not qualify for judicial notice.
Live Nation’s motion must therefore be denied to the extent that Live Nation wants the
facts of the exhibits to be judicially noticed for their truth; if any judicial notice is to be made of
the exhibits, it must be limited to the fact that there were prior proceedings and prior filings. In
other words, the exhibits may be judicially noticed not for the truth of the matters contained
therein but merely to establish the fact of such prior proceedings if indeed that fact is relevant to
establishing Live Nation’s defense in this action. Denying the motion for judicial notice of the
contents of the exhibits does not preclude Live Nation from trying to introduce the exhibits as
evidence of a lack of tying, absence of monopoly power, or failure to show antitrust injury if the
exhibits would indeed make that showing.

January 10, 2012
Date

/s/
J. Frederick Motz
United States District Judge 

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