State of North Carolina v. Alcoa Power Generating, Inc.
Filing
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ORDER DENYING 124 Alcoa's Motion to Exclude Plaintiff's Previously Undisclosed Witnesses, DENYING 133 State of North Carolina's Motion to Exclude Defendant's Late Filings, and GRANTING IN PART AND DENYING IN PART 136 Yadkin Riverkeeper's Motion to Take Judicial Notice. Signed by US District Judge Terrence W. Boyle on 1/14/2015. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-633-BO
STATE OF NORTH CAROLINA, by and
through its agency, the NORTH
CAROLINA DEPARTMENT OF
ADMINISTRATION,
Plaintiff,
V.
ALCOA POWER GENERATING, INC.,
Defendant.
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ORDER
This matter comes before the Court on defendant Alcoa's motion to exclude plaintiffs
previously undisclosed witnesses [124], plaintiffNorth Carolina's motion to exclude defendant's
late filings [DE 133], and a motion by amicus Yadkin Riverkeeper (Riverkeeper) to take judicial
notice of certain documents [136]. For the following reasons, Alcoa and North Carolina's
motions to exclude are DENIED, and the Riverkeeper's motion for judicial notice is GRANTED
IN PART and DENIED IN PART.
BACKGROUND
The State ofNorth Carolina ("North Carolina" or "the State") filed this declaratory
judgment action in Wake County Superior Court seeking a declaration that, inter alia, roughly
forty miles of submerged riverbed in the Yadkin River ("the subject waterway") is North
Carolina's sole and exclusive property, held by the State in trust for the people of the State.
Alcoa Power Generating ("Alcoa") removed the action to this Court on the basis of its federal
question jurisdiction. 28 U.S.C. ยงยง 1331; 1441. On November 20, 2014, the Court entered an
order denying Alcoa's motion for summary judgment and granting in part and denying in part
North Carolina's motion for summary judgment. [DE 142]. A pre-trial conference is scheduled
for February 2, 2015. [DE 143]. Now before the Court are motions to exclude by both parties and
a motion to take judicial notice of certain documents filed by amicus Yadkin Riverkeeper.
DISCUSSION
I.
ALCOA'S MOTION TO EXCLUDE
Alcoa asks the Court to exclude 12 witnesses that were disclosed by plaintiff for the first time
on September 12, 2014, in plaintiffs pretrial disclosures and final witness list. Alcoa relies on
Rule 26( a)(l) of the Federal Rules of Civil Procedure to argue that plaintiff should have included
these witnesses in its initial disclosures, which were due no later than January 10, 2014. Alcoa
argues that the witnesses must be excluded pursuant to Federal Rule of Civil Procedure 37,
unless the state can establish that its violation was substantially justified or harmless. S. States
Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).
Alcoa cites the wrong provision of Rule 26, however. Rule 26(a)(1) sets forth the time for
initial disclosures. This cannot also be the deadline for disclosing the identity of fact witnesses,
or there would be no need for Rule 26(a)(3), which requires that the parties disclose to one
another the identification of any witnesses they intend to call at trial at least 30 days before trial.
Rules 26(a) and (b) are concerned with witnesses who have discoverable material and experts,
respectively. The witnesses disclosed by North Carolina that are the subject of the instant motion
are fact witnesses; accordingly, their disclosures is controlled by Rule 26(a)(3). The scheduling
order in this case establishes a deadline for the final lists of witnesses and exhibits under Fed. R.
Civ. P. 26(a)(3) of September 12,2014, thus North Carolina's disclosures were timely, and
Alcoa's motion to exclude is DENIED. North Carolina is reminded that these witnesses are
allowed to testify only as fact witnesses.
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II.
NORTH CAROLINA'S MOTION TO EXCLUDE
North Carolina seeks to exclude five supplements to previously disclosed expert reports and
one amendment to a previously disclosed expert report. The pretrial disclosure deadline was
September 12, 2014, but the instant supplements and amendment were not filed by Alcoa until
September 24, 2014. Accordingly, there is no dispute as to whether the documents were filed
late; instead the question is whether the untimely disclosure "was substantially justified or is
harmless," in which case Fed. R. Civ. P. 37(c)(1) permits a party to use untimely disclosed
information. S. States Rack & Fixture, Inc., v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir.
2003). A court's analysis of whether the disclosure of evidence is substantially harmless or
justified is guided by the following factors:
(1) the surprise to the party against whom the evidence would be offered; 92) the
ability of that party to cure the surprise; (30 the extent to which allowing the
evidence would disrupt the trial; (4) the importance ofthe evidence; and 95) the
nondisclosing party's explanation for its failure to disclose the evidence."
!d.
Each factor weighs in favor of Alcoa. While the reports were late, they were only
two weeks late. Alcoa gave the State notice it would be supplementing its expert
disclosures regarding title, and Alcoa tendered each expert witness to be re-deposed.
Accordingly, the exclusion will not disrupt the trial, as North Carolina had the knowledge
and ability to cure the surprise and a trial date still has not been set. Moreover, the
evidence is very important to Alcoa, as a connected chain of title is one of the ways
Alcoa intends to prove ownership. Lastly, the Court is mindful of the immense nature of
the task before Alcoa's experts in reviewing title back to the date of the grant from the
State or Crown. Alcoa hired a surveryor and title expert when it learned that the State
claimed ownership of the riverbed and hired additional experts when it realized the
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magnitude ofthe task. Accordingly, the factors of the Rule 37(c)(1) analysis weigh in
favor of Alcoa, and plaintiffs motion to exclude the supplements and amendment is
DENIED.
Ill.
THE RIVERKEEPER'S MOTION TO TAKE JUDICIAL NOTICE
The last motion before the Court is a motion by the Riverkeeper to take judicial
notice of the following documents: 1) a brief written by Alcoa's predecessor in a 1941
court case out ofthe Southern District ofNew York; 2) four separate Acts passed by the
North Carolina legislature between 1790 and 1796; 3) the 1776 Constitution ofNorth
Carolina; and 6) the 1776 North Carolina Declaration of Rights. [DE 136]. Alcoa argues
that an amicus may not submit evidence to the Court, but this argument fails. In many
cases, amici have been permitted by courts to file motions for judicial notice. See, e.g.
Winfrey v. McDaniel, 487 F. App'x 331, 332 n. 3 (9th Cir. 2012); but see Smith v. Pinion,
No. 1:10-CV-29, 2013 WL 3895035 (M.D.N.C. Jul. 29, 2013) (noting that an amicus
"should not be accorded the right to present evidence or otherwise participate in an
adversarial fashion."). Moreover, Federal Rule of Evidence 201, not the status of a party
or amicus, governs notice of adjudicative facts.
Rule 201 provides that a court may take judicial notice of "a fact that is not subject to
reasonable dispute because it: (1) is 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." An adjudicative fact is a fact "concerning
the immediate parties-who did what, where, when, how, and with what motive or
intent." Fed. R. Evid. 201 advisory committee's note (quoting 2 Kenneth C. Davis,
Administrative Law Treatise at 353 (1958)). When a party seeks judicial notice of the
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meaning of a document, the meaning of the document must be relevant and not subject to
reasonable dispute. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 216
(4th Cir. 2009); US. v. LaRouche, 4 F.3d 987, 1993 WL 358525 at *4, (4th Cir. Sept. 13,
1993); Smith v. Pinon, No. 1:10-CV-29, 2013 WL 3895035 at *1 (M.D.N.C. Jul. 29,
2013 ). "[T]he most frequent use of judicial notice of ascertainable facts is in noticing the
content of court records." Colonial Penn. Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.
1989).
With one limited exception, the documents which the Riverkeeper wants the
Court to notice are not facts within the meaning of Rule 201. While there may be no
dispute as to the existence of the documents proffered as judicially noticeable, the same
cannot be said for the meaning of these documents, and it is the meaning of the
documents that the Riverkeeper seeks the Court to notice. Instead of proffering specific
facts concerning the parties to this case as judicially noticeable, the documents submitted
are not immediately relevant to this case. Instead, their relevance is subject to
interpretation, and accordingly, they are subject to reasonable dispute. The Court
therefore declines to notice them.
The lone exception is the portion of the 1941 brief pertaining to the navigability
of the Yadkin River. As set forth in its earlier Order [DE 142], the fact that the brief
describes the Yadkin project as affecting a navigable waterway is a fact concerning the
parties that is not subject to interpretation and is relevant to the parties' prior
representations of the subject waterway's navigability. Accordingly, the Court takes
judicial notice of the fact that Alcoa's brief in that case states that the "Yadkin project
affects a navigable waterway" for the limited purpose of establishing that it would be
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unwise to give controlling weight to either party's prior arguments regarding the subject
waterway's navigability. United States ofAmerica v. Aluminum Company ofAmerica, 44
F. Supp. 97 (S.D.N.Y 1941). Therefore, the Riverkeeper's motion is GRANTED IN
PART and DENIED IN PART.
CONCLUSION
For the foregoing reasons, Alcoa and North Carolina's motions to exclude [124,
133] are DENIED, and the Riverkeeper's motion for judicial notice [136] is GRANTED
IN PART and DENIED IN PART.
SO ORDERED, this
__j_!f_day of January, 2015.
T RRENCE W. BOYLE
UNITED STATES DISTRICT
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