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9287316 Dktentry: 12 Page: 1 of 605 Case: 14-56140 10/22/2014 ID: 9287316 DktEntry: 12 Page: 1 of 605 Case No. 14-56140 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC, a Delaware public benefit corporation, and COLBERN C. STUART, III, an individual, Plaintiffs-Appellants, v. SAN DIEGO COUNTY BAR ASSOCIATION, et al., Defendants-Appellees Appeal From The United States District Court For The Southern District of California Case No. 03-cv-1944 CAB (JLB) The Honorable Cathy Ann Bencivengo APPELLANTS’ MOTION TO TAKE JUDICIAL NOTICE Colbern C. Stuart III, J.D. Law Offices of Dean Browning California Coalition for Families Webb and Children, PBC 515 E 39th St. 4891 Pacific Highway Ste. 102 Vancouver, WA 98663-2240 San Diego, CA 92110 Telephone: 503-629-2176 Telephone: 858-504-0171 Email: [email protected] EMail: [email protected] Counsel for Plaintiff-Appellant California Coalition for Families and Plaintiff-Appellant In Pro Se Children, PBC Case: 14-56140 10/22/2014 ID: 9287316 DktEntry: 12 Page: 2 of 605 I. MOTION TO TAKE JUDICIAL NOTICE Under Federal Rule of Evidence 201 and in connection with the Joint Opening Brief of Plainitffs-Apellants California Coalition for Families and Children, PBC and Colbern C. Stuart, III (collectively “California Coalition”), filed concurrently with this motion, California Coalition moves this Court to take judicial notice of 4 court records from other district courts including the following: Exhibit 1: The 131 page Complaint in U.S. v. Philip Morris, United States District Court for the District of Columbia, Case No. 1:99-02496 (GK) filed September 22, 1999. Exhibit 2: The 213 page “Second Consolidated Amended Commercial Class Action Complaint” from In Re: Insurance Brokerage Cases, United States District Court for the District of New Jersey, Case No. 04-5184 (GEB) filed June 29, 2007. Exhibit 3: The 138 page “Revised Particularized Statement Describing the Horizontal Conspiracies Alleged in the Second Consolidated Amended Commercial Class Action Complaint” from In Re: Insurance Brokerage Cases, United States District Court for the District of New Jersey, Case No. 04-5184 (GEB) filed June 29, 2007. Exhibit 4: The 94 page “Third Amended Commercial Insurance Plaintiffs’ RICO Case Statement” from In Re: Insurance Brokerage Cases, United States Case: 14-56140 10/22/2014 ID: 9287316 DktEntry: 12 Page: 3 of 605 District Court for the District of New Jersey, Case No. 04-5184 (GEB) filed June 29, 2007.; Exhibit 5: An excerpted recording of the oral argument in Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (9th Cir. 2011) is available by link to an internet website located at http://youtu.be/SGCo1ISXo9U; Exhibit 6: A RICO Case Statement used by the United States District Court for the Southern District of California; Exhibit 7: “Complaint Under the Civil Rights Act 42 U.S.C. §1983” available at: https://www.casd.uscourts.gov/Attorneys/Lists/Forms/Attachments/36/Civil%20Ri ghts%20Complaint.pdf. II. AUTHORITY “The court may take judicial notice at any stage of the proceeding,” including for the first time on appeal. Fed. R. Evid. 201(d); see Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir. 1971). Paragraph (b)(2) of Rule 201 states in part that “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: . can be accurately and readily determined from sou-rces whose accuracy cannot reasonably be questioned.” “[T]he most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.” Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989). Records subject to Case: 14-56140 10/22/2014 ID: 9287316 DktEntry: 12 Page: 4 of 605 judicial notice on appeal include “the records of an inferior court in other cases.” U.S. v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). III. DISCUSSION California Coalition proffers the exhibits as examples of initiating pleadings in complex civil racketeering matters similar to the case below. The exhibits include two complaints, a “particularized case statement” and a RICO Case Statement. The exhibits are not proffered from the facts therein asserted or any controversial matter. The materials are relevant to demonstrate the following: A. Use of acronyms and defined terms are common in complex racketeering litigation: The district court’s July 9, 2014 Order Dismissing Case with Prejudice (ER 6) found California Coalition’s FAC violated Rule 8 by virtue of its use of “unique acronyms, defined terms, and terms with no discernable meaning” ER 8. The highlighted portions of the attached exhibits demonstrate that use of acronyms and defined terms are common in racketeering matters. Plaintiffs asserting the plausible existence of “associations in fact” enterprises under 18 U.S.C. § 1962(c) commonly must describe lose affiliations—gangs, groups, or individuals undertaking coordinated purposeful effort—that operate without formal designation. See, e.g., Boyle v. United States, 129 S. Ct. 2237, 2244 (2009) (“[A]n Case: 14-56140 10/22/2014 ID: 9287316 DktEntry: 12 Page: 5 of 605 association-in-fact enterprise . need not have a hierarchical structure or a ‘chain of command’ . The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies.”); Odom v. Microsoft, 486 F.3d 541, 551 (9th Cir. 2007) (enterprise consisting of an unnamed marketing joint venture); Countrywide Financial Corp. Mortgage Marketing and Sales Practices Litigation, 601 F. Supp.2d 1201, 1212- 1214 (S.D. Calif. 2009) (alternative “Countrywide Broker Enterprise” and “Countrywide Enterprise”); Friedman v. 24 Hour Fitness Co., 580 F.Supp.2d 985, 993 (C.D. Calif. 2008) (enterprise of “contractual relationship for ordinary financial services”). The FAC follows this practice, assigning each of five defined enterprises and several conspiracies an acronym moniker far simpler than repetition of the extended names of the enterprises. “Domestic Dispute Industry Criminal Enterprise” is “DDICE” and may be pronounced “dice” (ER 642); “Domestic Dispute Industry Forensic Investigator Criminal Enterprise” is “DDI-FICE” pronounced “device” (ER 646); “DDI-IACE” is pronounced “de (“the”) ace” (ER 645); “Stuart AHCE” is pronounced “Stuart ache” (ER 647-648); DDIL pronounced “dull” or “dill” (ER 649); “Federal Indictable Civil Rights Offense” conspiracy is “FICRO” (ER 684), etc. The court criticized use of “defined terms” such as “STUART ASSAULT” and “MALICIOUS PROSECUTION” which refer Case: 14-56140 10/22/2014 ID: 9287316 DktEntry: 12 Page: 6 of 605 to lengthy passages of foundational facts that constitute relevant “facts in support” to numerous claims. Labeling them enables pleading “short, plain” claims throughout the complaint. The court is incorrect that there are “terms with no discernable meaning” (ER 8); the court overlooked definitions for the terms it identified, located at FAC ¶955 (“black hat”) and ¶985 (“poser advocacy,” “paperwads,” and “kite bombs”). Such practices are not prohibited by any rule or order, and facilitates pleading “short, plain” claims referring to supporting facts and complex entities throughout the litigation. B. Lengthy, difficult to manage complaints are common in racketeering litigation: The district court also found the FAC violated Rule 8 because it “is even longer than the original and remains unmanageable, argumentative, confusing, and frequently incomprehensible.” ER 10. These exhibits demonstrate that RICO complaints are commonly lengthy and can at times be confusing, argumentative, and arguably verbose, prolix, and even “frequently incomprehensible.” Yet these district courts have not dismissed the complaints with prejudice for violations of Rule 8. Indeed, the titles of the pleadings indicate multiple amendments. Exhibits 2-4 from In Re Insurance Brokerage Cases racketeering and antitrust litigation consist of a 213-page second amended complaint, a 138 page “Revised Particularized Statement” attachment identifying the “horizontal” Case: 14-56140 10/22/2014 ID: 9287316 DktEntry: 12 Page: 7 of 605 racketeering conspiracies, and a 94 page RICO Case Statement, for a total of 445 pages. The complaint (Exhibit 2) contains several lengthy narratives containing what could be regarded as “prolixity” “verbiage” and “argument” such as that criticized by the district court. Exhibit 1 contains highly argumentative—indeed attacking—passages describing the tobacco industry’s 53 year -long fraudulent schemes to deceive smokers using “independent” scientists, public relations firms, and even some of our nation’s most prestigious law firms. C. District Courts have many tools to manage complex litigation: The exhibits demonstrate several methods for managing complicated racketeering cases, including amendment (all exhibits), a RICO case statement (Exhibit 4), and the “revised particularized statement” (Exhibit 3) plaintiffs filed concurrent with the complaint (Exhibit 2) to flesh out the critical issue in that case—whether the “horizontal” enterprise (aka “hub and spoke”) was a cognizable “enterprise” under 18 U.S.C. § 1961(c). See, In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 327 (3d Cir. 2010). Exhibits 6 is the RICO Case Statement from the Southern District attached to demonstrate a tool readily available to the district court to assist in managing this litigation. Case: 14-56140 10/22/2014 ID: 9287316 DktEntry: 12 Page: 8 of 605 D. This Court’s recorded oral argument in Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (9th Cir. 2011) shows the bizarre procedural posture of that case is inapposite to this action. The district court below dismissed the First Amended Complaint based largely on this Court’s decision in Cafasso. California Coalition argues in its briefing that Cafasso is inapposite. See Enlarged Brief Sec. VI.B.2.c. The oral argument from Cafasso makes clear the bizarre procedural history leading to the filing of a 733 page complaint without a single claims.
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