Vodicka v. Ermatinger
This text of Vodicka v. Ermatinger (Vodicka v. Ermatinger) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION STEVEN B. AUBREY and § BRIAN E. VODICKA, § § Plaintiffs, § § v. § CIVIL ACTION NO. 3:19-CV-0056-B § D MAGAZINE PARTNERS, L.P.; § ALLISON MEDIA, INC.; JAMIE L. § THOMPSON; ROBERT L. § ERMATINGER, JR.; SCOTT ROBERT § SAYERS; CITY OF DALLAS; DALLAS § COUNTY, TEXAS; and DOES 1-20, all § whose true names are unknown, § § § Defendants. § MEMORANDUM OPINION & ORDER Before the Court is Plaintiffs’ Motion for Leave to File Motion to Take Judicial Notice (Doc. 98), filed on August 15, 2019. For the reasons that follow, the Court DENIES Plaintiffs’ motion (Doc. 98). I. BACKGROUND Plaintiffs originally filed this lawsuit on January 8, 2019, bringing claims against Defendants D Magazine Partners, L.P.; Allison Media, Inc.; Jamie L. Thompson; Robert L. Ermatinger, Jr.; Scott Robert Sayers; Judge Eric Vaughn Moyé; City of Dallas; Dallas County; and Does 1-20.1 See Doc. 1 The Court hereinafter refers to Defendants City of Dallas, Robert L. Ermatinger, Jr., and Scott Robert Sayers collectively as “the City Defendants.” Further, the Court refers to Defendants D Magazine - 1 - 3, Compl. The following day, Plaintiffs corrected their complaint to eliminate duplicitous allegations. Doc. 4, Notice of Correction, 1. In response to Plaintiffs’ complaint, all named Defendants filed motions to dismiss. See Doc. 21, Mot. to Dismiss; Doc. 29, Mot. to Dismiss; Doc. 31, Mot. to
Dismiss; Doc. 32, Mot. to Dismiss. Subsequently, Plaintiffs sought to amend their complaint. See Doc. 47, Pls.’ Mot. for Leave to File Am. Compl. Three days later—before this Court ruled on Plaintiffs’ motion—Plaintiffs filed another motion for leave to amend the complaint, which Defendants opposed. See Doc. 50, Pls.’ Mot. for Leave to File Second Am. Compl., 1–2. The Court granted the motion but noted that “subsequent requests for leave to amend will be more closely scrutinized, as is this Court’s typical practice and per the Federal Rules of Civil Procedure.” Doc. 52, Electronic Order.
Thereafter, all Defendants moved to dismiss the claims in the second amended complaint. See Doc. 63, Mot. to Dismiss; Doc. 65, Mot. to Dismiss; Doc. 67, Mot. to Dismiss; Doc. 71, Mot. to Dismiss; Doc. 72, Mot. to Dismiss; Doc.73, Mot. to Dismiss. On June 20, 2019, the Court dismissed all claims against Defendant Judge Moyé. See Doc. 92, Mem. Op. & Order. Subsequently, Plaintiffs filed the motion at hand, asking the Court to take judicial notice of the contents of six search-warrant affidavits, because Plaintiffs included allegations of only three
search-warrant affidavits in their second amended complaint. See Doc. 98, Pls.’ Mot. for Leave, 1–2. Defendant Dallas County, as well as the City Defendants, filed responses in opposition to the motion, contending that Plaintiffs urge the Court to take judicial notice of facts that do not fall within the purview of Federal Rule of Evidence 201. See Doc. 99, Def. Dallas Cty.’s Resp., 3; Doc. 100, City
Partners, L.P., Allison Media, Inc., and Jamie L. Thompson collectively as “the Media Defendants.” - 2 - Defs.’ Resp., 1–2. Plaintiffs, in reply, assert that they seek judicial notice of the fact that certain facts appear in the affidavits—not the truth of those facts. See Doc. 101, Pls.’ Reply, 2. As Plaintiffs’ motion is now ripe, the Court addresses it below. But because Federal Rule of
Evidence 201 does not require a party to seek leave of Court in requesting judicial notice, the Court construes Plaintiffs’ motion as a motion requesting the Court to take judicial notice.2 See FED. R. EVID. 201. II. LEGAL STANDARD Under Federal Rule of Evidence 201(b), a judicially noticed fact is one that is not subject to reasonable dispute because it is either: “(1) [] 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). III. ANALYSIS Here, Plaintiffs urge the Court to take judicial notice of the existence of facts in certain search-warrant affidavits. Doc. 98, Pls.’ Mot. for Leave, 1–2. Because the existence of the statements
in these search-warrant affidavits cannot be “accurately and readily determined from sources whose accuracy cannot reasonably be questioned,” see FED. R. EVID. 201(b)(2), the Court DENIES 2 The Court notes that after filing the motion at issue, Plaintiffs sought leave to file a third amended complaint, see Doc. 102, Pls.’ Mot. for Leave to File Third Am. Compl., and the Court granted leave to amend “insofar as [the plaintiffs sought] to include allegations of six newly-discovered search-warrant affidavits.” Doc. 114, Order, 10. Given that the third amended complaint (Doc. 121) is currently the operative complaint in this case, Plaintiffs’ request for the Court to take judicial notice of the existence of the six search-warrant affidavits may now be moot. Nonetheless, the Court addresses the merits of the motion below. - 3 - Plaintiffs’ motion (Doc. 98). A. The Court Will Not Take Judicial Notice of the Existence of Facts in the Search-Warrant Affidavits. Plaintiffs contend that the search-warrant affidavits come from “credible sources whose accuracy cannot reasonably be questioned .” See Doc. 98-1, Pls.’ Mot., 2. Courts may take judicial notice of facts that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b)(2). Nonetheless, courts should do so “sparingly at the pleadings stage.” See Reneker v. Offill, 2010 WL 1541350, at *5 (N.D. Tex. Apr. 19, 2010)
(citation and internal quotations omitted). Here, the Court is not convinced that Plaintiffs’ exhibits derive from sources “whose accuracy cannot reasonably be questioned.” See FED. R. EVID. 201(b)(2). Plaintiffs’ motion for judicial notice explains that Plaintiffs received the affidavits at issue through an Open Records Request to the City of Dallas. See Doc. 98, Pls.’ Mot. for Leave, 1. But Plaintiffs’ attached exhibits—the search-warrant affidavits and related documents—do not include the Request itself. See generally, Doc. 98-1, Pls.’ Mot., Exs. A–C. Accordingly, the Court “is unable to determine, from the documents provided, what
exact information Plaintiff[s] requested from” the City of Dallas. See Fahs Constr. Grp., Inc. v. Gray, 2012 WL 2873532, at *4 (N.D. N.Y. July 12, 2012). Further, the Court lacks evidence, such as a cover letter, that these documents were actually disclosed by the City of Dallas. Accordingly, though the Court recognizes its ability to take judicial notice of the existence of public documents when deciding motions to dismiss, see Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citation omitted), the Court is not certain that the affidavits are indeed public
documents. These documents were “not prepared for review for the general public”—instead, they - 4 - were allegedly obtained only through an open-records request. See Fahs Constr. Grp., 2012 WL 2873532, at *4; Doc. 98, Pls.’ Mot. for Leave, 1. In light of the Court’s uncertainty as to the “public” nature of these documents, as well as the admonition that the Court should “sparingly” take judicial notice at this stage of proceedings, see Reneker, 2010 WL 1541350, at *5, the Court declines to take judicial notice of the existence of the search-warrant affidavits at this time.
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Vodicka v. Ermatinger, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vodicka-v-ermatinger-txnd-2020.