Saturday, September 1, 2012
There's No Business Like Court Business: 9th Circuit Refuses To Take Judicial Notice In Marilyn Monroe Case
Federal Rule of Evidence 201(b) provides that
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.
It is well established under Federal Rule of Evidence 201(b) that a court may take judicial
"notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.1979); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989); E.I. DuPont de Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir.1986); Coney v. Smith, 738 F.2d 1199, 1200 (11th Cir.1984); Green v. Warden, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir.) (court took judicial notice of proceedings and filings in other courts, including a decision of the California Supreme Court issued while the parties' appeal in the federal case was pending), cert. denied, 404 U.S. 967, 92 S.Ct. 344, 30 L.Ed.2d 287 (1971).
But what if the other proceedings do not have a direct relation to the matters at issue in a case? That was the question addressed by the Ninth Circuit in its recent opinion in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 2012 WL 3743100 (9th Cir. 2012).The Ninth Circuit described Marilyn Monroe as follows:
An enduring American celebrity, Marilyn Monroe continues to inspire both admiration and litigation a half-century after her death. At issue is whether appellants inherited a right of publicity, which was created and deemed posthumous by the states of California and Indiana decades after her death, through a residual clause in her Last Will and Testament. The will was subject to probate in the state of New York, which does not recognize a posthumous right of publicity. The issue of appellants' rights turns on whether Monroe was domiciled in California or New York at the time of her death. We conclude that because Monroe's executors consistently represented during the probate proceedings and elsewhere that she was domiciled in New York at her death to avoid payment of California estate taxes, among other things, appellants are judicially estopped from asserting California's posthumous right of publicity. We therefore affirm the district court's order so holding.
Before reaching this conclusion, the Ninth Circuit denied the plaintiff's request for it to take judicial notice under Federal Rule of Evidence 201(b) of appeals pending in the Second Circuit in cases related to Shaw Family Archives, Ltd. v. CMG Worldwide, Inc., 589 F.Supp.2d 331 (S.D.N.Y.2008). The Ninth Circuit acknowledged that these case also dealt with Marilyn Monroe and the right of publicity but ultimately concluded that
Although those cases also involve claims about the ownership of Marilyn Monroe's right of publicity, the issues on appeal bear no relation to the claims at issue here. See Fed.R.Evid. 201; United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992) ("[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.") (quotation marks omitted).