You are on page 1of 5

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
Appellant, Consolidating No. 09-5161

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 § 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
RBauer@perkinscoie.com
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
Appellant, Consolidating No. 09-5161

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 Document: 1213344 Filed: 10/30/2009 Page: 5

DATED: Oct. 30, 2009 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