December 05, 2018 Practice Points

    How to Ask a Federal Court to Take Judicial Notice of State Court Proceedings

    Practical guidance on the scope of judicial notice under the Federal Rules of Evidence and how to invoke this concept in federal court

    By Kenneth Klemm

    A judge of the U.S. Court of Appeals for the Seventh Circuit recently provided practical guidance on the scope of judicial notice under the Federal Rules of Evidence and how to invoke this concept in federal court.

    In an appeal of a bankruptcy matter in In the Matter of Lisse, 905 F.3d 495 (7th Cir. 2018), a single judge from the Seventh Circuit addressed a pleading styled as a “Request for Judicial Notice.”  The judge noted that the request was made under Rule 201(b) of the Federal Rules of Evidence, which “permits a court to take judicial notice of an adjudicative fact that is 'not subject to reasonable dispute ... .”

    Nevertheless, the judge determined that the request was unnecessary as to two orders entered by a state court, and improper as to a power of attorney and motion filed in state court.

    The judge explained that, although the orders, as public records, would be subject to judicial notice, the proper method for invoking this evidentiary rule required reference to the orders in the moving party’s brief and an explanation as to why the orders should be deemed relevant and subject to judicial notice.  As to the power of attorney and motion filed in state court, the judge explained that they lacked sufficient evidentiary foundations to be admitted as evidence in the bankruptcy appeal.

    Ultimately, the judge denied the entirety of this request and, in doing so, explained why practitioners should refrain from making similar requests of appellate judges in the future.   

    Kenneth Klemm is a shareholder at Baker Donelson, where he defends clients in marine, energy, oil and gas, and commercial motor-carrier-related litigation.

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