Caution Advised In Taking Judicial Notice

While judicial notice under FRE 201 may be appropriate where the requirements of the rule are met, Eighth Circuit decides not to consider whether the trial court erred in taking judicial notice since the case was remanded, but cautions against taking judicial notice "in contravention of the relevancy, foundation, and hearsay rules," in 1-800-411-Pain Referral Service, LLC v. Otto, _ F.3d _ (8th Cir. March 10, 2014) (No. 13-1167)

Judicial notice may be permitted under FRE 201. Under FRE 201(b), judicial notice may be taken 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." The rule also provide for an opportunity to be heard under FRE 201(e): "On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard." The Eighth Circuit recently noted the care that must be made before judicial notice is taken.

Trial Court Proceedings: Taking Judicial Notice Sua Sponte

The case involved a Section 1983 action brought by a medical and legal referral business for car accident victims against members of the Minnesota Board of Chiropractor. The plaintiffs claimed "that recent amendments to Minnesota's No-Fault Automobile Insurance Act, Minn. Stat. §§ 65B.41–71, violate the First Amendment." The district court sua sponte took "judicial notice of (a) the Minnesota legislature's debate preceding the vote on the amendments to the No-Fault Act; and (b) a settlement between 411-Pain and Florida's Attorney General in state litigation brought pursuant to Florida's Deceptive and Unfair Trade Practices Act." 1-800-411-Pain Referral Service, _ F.3d at _. The district court denied the plaintiff's motion for a preliminary injunction to enjoin enforcement of the new statute. The plaintiff's appeal the denial of the motion. One issue raised on appeal was whether the district court abused its discretion in taking judicial notice.

Eighth Circuit Review: Caution Noted

In affirming the denial of the motion for a preliminary injunction, the Eighth Circuit found it unnecessary to decide whether the district court improperly took judicial notice. However, the circuit took the occasion to caution about the manner in taking judicial notice:

[O]n remand, we note that judicial notice is subject to Fed. R. Evid. 201(e), which states: "On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard." In addition, "Caution must also be taken to avoid admitting evidence, through the use of judicial notice, in contravention of the relevancy, foundation, and hearsay rules." Am. Prairie Const. Co. v. Hoich, 560 F.3d 780, 797 (8th Cir. 2009). Out of respect for the adversarial process, the district court should allow the parties to build the factual record themselves as much as possible and are entitled to be heard on the propriety of the court noticing facts "not tested in the crucible" of litigation. United States v. Hoyts Cinemas Corp., 380 F.3d 558, 570 (1st Cir. 2004).

1-800-411-Pain Referral Service, _ F.3d at _.

Conclusion

The 1-800-411-Pain Referral Service case provides a reminder that judicial notice is not routine and requires that certain prerequisites be satisfied. For more on the Am. Prairie Const. Co. case, see Eighth Circuit Underscores Requirements For Taking Judicial Notice.

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