Wendy Nora v. HSBC Bank USA, N.A.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-1866 & 18-1889
IN THE MATTER OF:
STEVEN ROBERT LISSE,
Debtor.
APPEALS OF:
WENDY ALISON NORA
____________________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 16-cv-617-wmc — William M. Conley, Judge.
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SUBMITTED SEPTEMBER 24, 2018 — DECIDED SEPTEMBER 28, 2018
____________________
EASTERBROOK, Circuit Judge, in chambers. Appellant has
submiYed a document styled “Request for Judicial Notice.”
In my capacity as motions judge, I deny this and publish a
brief explanation in the hope of forestalling other, similar
applications, which recently have increased in frequency.
Rule 201(b) of the Federal Rules of Evidence permits a
court to take judicial notice of an adjudicative fact that is
“not subject to reasonable dispute” because it:
2 Nos. 18-1866 & 18-1889
(1) is generally known within the trial court’s territorial jurisdic-
tion; or
(2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
The “Request” asks the court to take judicial notice of four
documents. Two of them are orders entered by a state court
in Wisconsin. They are public records and appropriate sub-
jects of judicial notice. See Menominee Indian Tribe v. Thomp-
son, 161 F.3d 449, 456 (7th Cir. 1998); Fed. R. Evid. 901(b)(7).
The third is a power of aYorney filed in state court. The
fact that a document is in a state court’s record does not
make it an appropriate subject of notice, however, because
its provenance may be disputed. Is it authentic? See Rules
901 to 903. Are the four signatures real or forged? (The signa-
ture lines say that all four signers are officers of Bank of
America; none is a party to this proceeding.) Is it the origi-
nal, or perhaps a duplicate admissible under Rule 1003? Is
the document even relevant? See Rule 402. If the power of
aYorney had been submiYed in this proceeding it would not
be subject to judicial notice. It does not get a privileged sta-
tus because it was filed in a state suit.
The fourth document is a lawyer’s motion filed in the
same state case. That document is not subject to judicial no-
tice because it is not evidence of an adjudicative fact. A law-
yer’s appellate brief in the Seventh Circuit is not evidence;
neither is a lawyer’s motion in state court. If the document
were being offered just to show that it had been filed, that
fact might be subject to judicial notice, but the “Request”
does not suggest that appellant wants this court to take no-
tice that a particular document was filed on a specific date in
some other tribunal.
Nos. 18-1866 & 18-1889 3
I said at the outset that I am denying the “Request,” and
readers may wonder why I am not granting it with respect
to two documents and denying it with respect to two. The
reason is that the “Request” is unnecessary. The right place
to propose judicial notice, once a case is in a court of appeals,
is in a brief.
When evidence is “not subject to reasonable dispute”,
there’s no need to multiply the paperwork by filing motions
or “Requests.” Just refer to the evidence in the brief and ex-
plain there why it is relevant and subject to judicial notice. If
the assertion is questionable, the opposing litigant can pro-
test. “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.” Rule 201(e). That “timely request” and the
“opportunity to be heard” both belong in the next brief. So if
an appellant proposes judicial notice, the appellee’s objec-
tion can be presented in its own brief. If it is an appellee who
proposes judicial notice, the appellant’s reply brief provides
the opportunity to be heard in opposition. There’s no need
to engage in motions practice, require the aYention of addi-
tional appellate judges, and defer briefing.
The “Request” therefore is denied as unnecessary with
respect to the two judicial orders and is denied as both un-
necessary and not meritorious with respect to the other doc-
uments.