Hollister V Soetoro|obama - Response Filed [1213344] By Joseph R. Biden, Jr. And Barry Soetoro In 09-5080, 09-5161 To Order [1211847-2] [service Date: 10/30/2009 By Email] Pages: 1-10. [09-5080, 09-5161] -transport Room
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Case: 09-5080
Document: 1213344
Filed: 10/30/2009
Page: 1
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
GREGORY S. HOLLISTER,
No. 09-5080 Consolidating No. 09-5161
Appellant, v. BARRY SOETORO, in his capacity as a natural person; de facto President in posse; and as de jure President in posse, also known as Barack Obama, et al., Appellees.
APPELLEES' RESPONSE TO ORDER TO SHOW CAUSE WHY APPELLANT'S MOTION FOR JUDICIAL NOTICE SHOULD NOT BE CONSIDERED AND DECIDED WITHOUT A RESPONSE Appellees do not object to Appellant Hemenway's Motion to Take Judicial Notice ("Motion") being decided without a response. Appellees did not respond to Appellant's Motion because, like appellant's underlying claim in this case, it is patently meritless and a further waste of this Court's time and resources. To the extent this Court believes a response would be appropriate and helpful, Appellees submit the following: The issues on appeal in this case are (1) whether Appellants have stated a claim under the interpleader statute by alleging a cognizable stake and by meeting interpleader's adversity requirement; and, relatedly, (2) whether the district court 1
Case: 09-5080
Document: 1213344
Filed: 10/30/2009
Page: 2
abused its discretion in reprimanding Appellant Hemenway for filing a frivolous suit. The documents attached to Appellant's Motion have absolutely no bearing on the issues raised on appeal and therefore judicial notice should not be taken. See Larson v. Dep't of State, 565 F.3d 857, 870 (D.C. Cir. 2009) ("We deny the plaintiffs' request for judicial notice . . . because those articles are irrelevant to our inquiry; taking notice of them would not affect our opinion."); see also, e.g., Trans-Sterling, Inc. v. Bible, 804 F.2d 525, 528 (9th Cir. 1986) (noting that a court need not take judicial notice of irrelevant facts); United States v. Byrnes, 644 F.2d 107, 112 (2d Cir. 1981) (holding that a trial court properly refused to take judicial notice of regulations that were irrelevant). Further, Rule 201 only permits judicial notice of "adjudicative facts" that are "(1) generally known within the territorial jurisdiction of the . . . court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b); see Charles Alan Wright & Kenneth W. Graham, 21B Federal Practice and Procedure: Evidence ยง 5110.1 (2d ed. 2005) (stating that Fed. R. Evid. 201 applies to judicial notice determinations by the courts of appeals). Attachments 2, 3, 5, and 6 to Appellant's Motion contain unauthenticated documents and rambling commentaries of uncertain authorship that are laden with speculation and opinion, making them incapable of accurate and ready determination. See Blue Man Vegas, LLC v. 2
Case: 09-5080
Document: 1213344
Filed: 10/30/2009
Page: 3
N.L.R.B., 529 F.3d 417, 427 n. * (D.C. Cir. 2008) (declining to take notice of published commentary and opinion); Forsham v. Califano, 587 F.2d 1128, 1138 (D.C. Cir. 1978) (speculation not appropriate for judicial notice). The Court should deny the motion.
DATED : October 30, 2009
Respectfully submitted, PERKINS COIE LLP By:
/s/ Robert F. Bauer [email protected] Kate E. Andrias Andrew H. Werbrock 607 Fourteenth Street N.W. Washington, D.C. 20005-2003 Telephone: 202.628.6600 Facsimile: 202.434.1690 Attorneys for Appellees President Barack Obama and Vice President Joseph Biden
3
Case: 09-5080
Document: 1213344
Filed: 10/30/2009
Page: 4
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
GREGORY S. HOLLISTER,
No. 09-5080 Consolidating No. 09-5161
Appellant, v.
CERTIFICATE OF SERVICE
BARRY SOETORO, in his capacity as a natural person; de facto President in posse; and as de jure President in posse, also known as Barack Obama, et al., Appellees. CERTIFICATE OF SERVICE I hereby certify that on this 30th day of October, 2009, I caused to be served by electronic filing a copy of this Motion on the following counsel for Appellants John D. Hemenway and Gregory S. Hollister: John D. Hemenway, Esq. 4816 Rodman Street N.W. Washington, D.C. 20016 Lawrence J. Joyce 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712
1
Case: 09-5080
DATED: Oct. 30, 2009
Document: 1213344
Filed: 10/30/2009
Page: 5
PERKINS COIE LLP By:
/s/
Robert F. Bauer 607 Fourteenth Street N.W. Washington, D.C. 20005-2003 Telephone: (202) 628-6600 Attorney for Appellees President Barack Obama and Vice President Joseph Biden
2
Document: 1213344
Filed: 10/30/2009
Page: 1
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
GREGORY S. HOLLISTER,
No. 09-5080 Consolidating No. 09-5161
Appellant, v. BARRY SOETORO, in his capacity as a natural person; de facto President in posse; and as de jure President in posse, also known as Barack Obama, et al., Appellees.
APPELLEES' RESPONSE TO ORDER TO SHOW CAUSE WHY APPELLANT'S MOTION FOR JUDICIAL NOTICE SHOULD NOT BE CONSIDERED AND DECIDED WITHOUT A RESPONSE Appellees do not object to Appellant Hemenway's Motion to Take Judicial Notice ("Motion") being decided without a response. Appellees did not respond to Appellant's Motion because, like appellant's underlying claim in this case, it is patently meritless and a further waste of this Court's time and resources. To the extent this Court believes a response would be appropriate and helpful, Appellees submit the following: The issues on appeal in this case are (1) whether Appellants have stated a claim under the interpleader statute by alleging a cognizable stake and by meeting interpleader's adversity requirement; and, relatedly, (2) whether the district court 1
Case: 09-5080
Document: 1213344
Filed: 10/30/2009
Page: 2
abused its discretion in reprimanding Appellant Hemenway for filing a frivolous suit. The documents attached to Appellant's Motion have absolutely no bearing on the issues raised on appeal and therefore judicial notice should not be taken. See Larson v. Dep't of State, 565 F.3d 857, 870 (D.C. Cir. 2009) ("We deny the plaintiffs' request for judicial notice . . . because those articles are irrelevant to our inquiry; taking notice of them would not affect our opinion."); see also, e.g., Trans-Sterling, Inc. v. Bible, 804 F.2d 525, 528 (9th Cir. 1986) (noting that a court need not take judicial notice of irrelevant facts); United States v. Byrnes, 644 F.2d 107, 112 (2d Cir. 1981) (holding that a trial court properly refused to take judicial notice of regulations that were irrelevant). Further, Rule 201 only permits judicial notice of "adjudicative facts" that are "(1) generally known within the territorial jurisdiction of the . . . court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b); see Charles Alan Wright & Kenneth W. Graham, 21B Federal Practice and Procedure: Evidence ยง 5110.1 (2d ed. 2005) (stating that Fed. R. Evid. 201 applies to judicial notice determinations by the courts of appeals). Attachments 2, 3, 5, and 6 to Appellant's Motion contain unauthenticated documents and rambling commentaries of uncertain authorship that are laden with speculation and opinion, making them incapable of accurate and ready determination. See Blue Man Vegas, LLC v. 2
Case: 09-5080
Document: 1213344
Filed: 10/30/2009
Page: 3
N.L.R.B., 529 F.3d 417, 427 n. * (D.C. Cir. 2008) (declining to take notice of published commentary and opinion); Forsham v. Califano, 587 F.2d 1128, 1138 (D.C. Cir. 1978) (speculation not appropriate for judicial notice). The Court should deny the motion.
DATED : October 30, 2009
Respectfully submitted, PERKINS COIE LLP By:
/s/ Robert F. Bauer [email protected] Kate E. Andrias Andrew H. Werbrock 607 Fourteenth Street N.W. Washington, D.C. 20005-2003 Telephone: 202.628.6600 Facsimile: 202.434.1690 Attorneys for Appellees President Barack Obama and Vice President Joseph Biden
3
Case: 09-5080
Document: 1213344
Filed: 10/30/2009
Page: 4
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
GREGORY S. HOLLISTER,
No. 09-5080 Consolidating No. 09-5161
Appellant, v.
CERTIFICATE OF SERVICE
BARRY SOETORO, in his capacity as a natural person; de facto President in posse; and as de jure President in posse, also known as Barack Obama, et al., Appellees. CERTIFICATE OF SERVICE I hereby certify that on this 30th day of October, 2009, I caused to be served by electronic filing a copy of this Motion on the following counsel for Appellants John D. Hemenway and Gregory S. Hollister: John D. Hemenway, Esq. 4816 Rodman Street N.W. Washington, D.C. 20016 Lawrence J. Joyce 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712
1
Case: 09-5080
DATED: Oct. 30, 2009
Document: 1213344
Filed: 10/30/2009
Page: 5
PERKINS COIE LLP By:
/s/
Robert F. Bauer 607 Fourteenth Street N.W. Washington, D.C. 20005-2003 Telephone: (202) 628-6600 Attorney for Appellees President Barack Obama and Vice President Joseph Biden
2
