Moreno v. Ross Island Sand & Gravel Co.

• Decision Date: 23 September 2015
• Docket Number: No. 2:13-cv-00691-KJM-KJN,2:13-cv-00691-KJM-KJN
• Court: U.S. District Court — Eastern District of California
• Parties: MICHAEL MORENO, et al., Plaintiffs, v. ROSS ISLAND SAND & GRAVEL CO., et al., Defendants.

MICHAEL MORENO, et al., Plaintiffs, v. ROSS ISLAND SAND & GRAVEL CO., et al., Defendants.

No. 2:13-cv-00691-KJM-KJN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 23, 2015

ORDER

Michael Moreno and his step-son, Jared Mitchell, were injured when their boat struck a dredge pipeline submerged beneath the San Joaquin River. In this action, Mr. Moreno, Mr. Mitchell, and Jared's mother Deanna Moreno, together "the Morenos," seek damages from Ross Island Sand & Gravel Co., the pipe's owner and operator. Both the Morenos and Ross Island have moved for summary judgment. Pls.' Mot. Summ. J. (Pls.' Mot.), ECF No. 94; Def.'s Mot. Summ. J. (Def.'s Mot.), ECF No. 97. The court held a hearing on March 27, 2015. William McLaughlin appeared for the Morenos, and Steven Scordalakis and Gregory Dyer appeared for Ross Island. Having considered the parties' briefing and arguments, the court now GRANTS IN PART the portion of the Morenos' motion it construes as a Rule 39 motion, and DENIES Ross Island's motion.

After addressing the parties' requests for judicial notice and evidentiary objections, the court reviews the disputed and undisputed facts and applicable legal standards, then turns to the merits of the parties' motions.

I. REQUESTS FOR JUDICIAL NOTICE

Both sides have filed requests for judicial notice. Ross Island requests the court take judicial notice of three documents: the Local Notice to Mariners issued by the Coast Guard on September 28, 2011, the day before the accident; the award of a contract to Ross Island by the Army Corps of Engineers; and the notice of the U.S. Coast Guard's issuance of an anchor waiver to Ross Island. See Def.'s Req. J. Not., ECF No. 97-2. The Morenos opposed none of these requests.

The Morenos request the court take judicial notice of several documents and other information: navigation rules posted on the U.S. Coast Guard's website; illustrations of day shapes from the Coast Guard's website; nautical safety guides published by the Coast Guard and available on its website; nautical safety guides published by the State of California and available on state websites; a boating exam and boat operator's course from proprietary websites; a copy of the docket for the state case before removal; a copy of the first amended complaint in this case and Ross Island's answer to that complaint; and the dismissal of all defendants but Ross Island from this action. See Pls.' Requests, ECF Nos. 95, 102. Ross Island objects as to the federal and state nautical safety guides and the proprietary boating exam and safety courses. Def.'s Resp. Pl.'s Stmt. (Pls.' UMF) no. 28, ECF No. 98-4. Except to argue the proprietary guides are "excerpts from a private company not readily verifiable," and that the safety guides are irrelevant or lack foundation, Ross Island does not detail its objections. Id.

A. Legal Standard

Federal Rule of Evidence 201 governs requests for judicial notice: "The court may judicially notice 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." Fed. R. Evid. 201(b). A request for judicial notice must normally describe both the matter for which the party seeks judicial noticeand the basis for judicial notice, that is, why the matter's accuracy is not subject to reasonable dispute. See id. R. 201(c)(2). The party who requests judicial notice bears the burden of persuasion to show the matter in question meets the description of Rule 201. Newman v. San Joaquin Delta Cmty. Coll. Dist., 272 F.R.D. 505, 516 (E.D. Cal. 2011).

Usually a fact must be established through the introduction of evidence, "ordinarily consisting of the testimony of witnesses." Fed. R. Evid. 201, advisory comm. notes (1972). "Judicial notice is an adjudicative device that alleviates the parties' evidentiary duties at trial." York v. Am. Tel. & Tel. Co., 95 F.3d 948, 958 (10th Cir. 1996). It is a shortcut past the "'heavy-footed common law system of proof by witnesses and authenticated documents'" for facts beyond any reasonable dispute. Getty Petroleum Mktg., Inc. v. Capital Terminal Co., 391 F.3d 312, 322 (1st Cir. 2004) (Lipez, J., concurring) (quoting John W. Strong, McCormick on Evidence § 335 (5th ed. 1999)). While a court may take judicial notice of its own records, judicial notice is redundant if the matter in question is already in the record. See Silvas v. G.E. Money Bank, 449 F. App'x 641, 645 n.2 (9th Cir. 2011). For example, the court need not take judicial notice of the complaint or its prior order in the same case. Ortega v. Univ. of Pac., No. 13-1426, 2013 WL 6054447, at *3 (E.D. Cal. Nov. 15, 2013); Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist., 935 F. Supp. 2d 968, 979 (E.D. Cal. 2013); see also Newman, 272 F.R.D. at 516.

At summary judgment, judicial notice obviates the fact-proving procedure of Rule 56, allowing a party to argue for a decision in its favor as a matter of law based on the noticed fact. See State Farm Fire & Cas. Co. v. Westchester Inv. Co., 721 F. Supp. 1165, 1166 (C.D. Cal. 1989). But requests for judicial notice are not affidavits. A request for judicial notice must show the court a matter is not subject to reasonable dispute. Fed. R. Civ. P. 201(b). An affidavit submitted with a motion for summary judgment, however, allows a party to show a fact is or is not genuinely disputed. See Fed. R. Civ. P. 56(a), (c).

Some matters are common subjects of judicial notice, including entries in the federal register, Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1179 (9th Cir. 2002); other matters of public record, Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001);pleadings and orders in related proceedings, see Biggs v. Terhune, 334 F.3d 910, 915 n.3 (9th Cir. 2003), overruled on other grounds, Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010) (en banc); Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290 n.1 (9th Cir. 1996); and documents published on government websites, Natural Res. Def. Council v. Kempthorne, 539 F. Supp. 2d 1155, 1167 (E.D. Cal. 2008). As relevant here, the Coast Guard's internet publications also are examples of documents subject to judicial notice. See Spottiswoode v. Son, 593 F. Supp. 2d 347, 350 (D. Mass. 2009); see also Parker v. Lester, 141 F. Supp. 519, 519 (N.D. Cal.) (Coast Guard regulations are "judicially noticeable"), aff'd, 235 F.2d 787 (9th Cir. 1956); Sadowski v. The Gremlin, 147 F. Supp. 869, 874 (D. Md. 1957) (same), modified on other grounds sub nom. Curtis Bay Towing Co. v. Sadowski, 247 F.2d 422 (4th Cir. 1957).

If a matter is not judicially noticeable, a party may resort to several alternatives. If the matter is already within the record or is a persuasive or controlling authority, a simple citation may suffice. Or if the matter is recent, relevant decisional authority, a notice of supplemental authority may be appropriate. See Jacquett v. Sisto, No. 06-2938, 2008 WL 1339362, at *2 (E.D. Cal. Apr. 9, 2008). And as noted above, at summary judgment, a party may also "cit[e] to particular parts of materials in the record" by "affidavit or declaration . . . on personal knowledge, set[ting] out facts that would be admissible in evidence, . . . show[ing] that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c). Attachment of evidence to an affidavit or sworn declaration may therefore be more appropriate. Finally, if a matter is truly subject to no reasonable dispute, the parties may likely stipulate to an assumption of its accuracy or truth. See Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 676 (2010).

B. Analysis

Without taking judicial notice, the court may consider the original complaint, the United States' notice of removal, the first amended complaint, Ross Island's answer, and the other defendants' dismissals. Those matters are already part of the record. See ECF Nos. 1, 1-1, 23, 32, 35, 45, 58, 89.

Ross Island's request for judicial notice of the Coast Guard's notice to mariners is granted. As described in Ross Island's request, that notice is one of many published weekly, or more frequently, as provided by federal regulation. See 33 C.F.R. § 72.01-5. Ross Island also requests the court judicially notice its award of contract with the Army Corps of Engineers and an anchor waiver issued by the Coast Guard. See Def.'s Request ¶¶ 2-3. Because the contract and anchor waiver are attached to the sworn declaration of Ross Island's Executive Vice President and General Manager, who asserts personal knowledge of their origins, the court will consider them here as appropriate on summary judgment, without the need for judicial notice. See Steed Decl. ¶¶ 1-4, ECF No. 97-1; Fed. R. Civ. P. 56(c); see also Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011) (allowing authentication of documents on summary judgment by review of their contents). Moreover, because the Morenos raise no dispute of fact related to these documents, the court finds they are undisputed for purposes of these motions.

The court denies the Morenos' request as to the documents published on www.boaterexam.com and www.boatcourse.com. Plaintiffs have provided no explanation of why these sources meet the requirements of Rule 201, and the URLs provided do not lead to the documents filed. The remainder of the Morenos' requests is a list of documents published on federal and California websites. The court agrees there can be no reasonable dispute that (a) the federal or California government published them, as the case may be, and (b) these documents' contents are as listed. By taking judicial notice of these documents, the court does not assume their entire truth. See Missud v. Nevada, 861 F. Supp. 2d 1044, 1054 (N.D. Cal. 2012), aff'd,...