United States District Court, N.D. Illinois, Eastern Division
PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, Plaintiffs,
ALLSCRIPTS HEALTH SOLUTIONS, INC. and ALLSCRIPTS HEALTHCARE LLC, Defendants.
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge.
plaintiff has asked that judicial notice be taken of a March
2, 2017 AAA Interim Arbitration Award, which found that
Allscripts' claims were "barred by their respective
statutes of limitations, " that Allscripts was not
entitled to a fee award, and that Physicians Healthsource is
entitled to recover its reasonable costs incurred in the
arbitration, including attorneys' fees. [Dkt. #291,
¶¶4-6]. The Motion for Judicial Notice assures us
that it is not offered “for the purpose of establishing
the truth of matters asserted in the arbitration, ”
which, it wisely concedes, would be improper. [Dkt. #291 at
¶3]. In General Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074 (7th Cir. 1997), the
Seventh Circuit put it this way:
To protect against improper reliance on facts from prior
proceedings, some appellate decisions have refused to allow a
court to take judicial notice of any adjudicative fact in a
court record for the truth of the matter asserted. See
United States v. Jones, 29 F.3d 1549, 1553 (11th
Cir.1994); Liberty Mut. Ins. Co. v. Rotches Pork Packers,
Inc., 969 F.2d 1384, 1388 (2nd Cir.1992) (holding that a
“court may take judicial notice of a document filed in
another court ‘not for the truth of the matters
asserted in the other litigation, but rather to establish the
fact of such litigation and related filings' ”). We
agree that courts generally cannot take notice of findings of
fact from other proceedings for the truth asserted therein
because these findings are disputable and usually are
128 F.3d at 1082 (parentheses in original).
plaintiff's motion insists that it is brought merely
“to establish the fact of such litigation and related
filings” - whatever the latter phrase may mean. [Dkt.
#291 at 3]. From the Arbitrator's conclusion that
Physicians Healthsource was the prevailing party and that
Allscripts must pay Physicians Healthsource's legal fees,
the motion reasons that the “factual predicate”
underlying Allscripts' argument here that Physicians
Healthsource cannot be an adequate representative of the
class in this case due to the threat of a judgment or award
of attorneys' fees in favor of Allscripts in the
arbitration has thus been “erased.” [Dkt. #291 at
¶8]. The alleged “factual predicate” is
vigorously disputed by Allscripts.
Motion for Judicial Notice implicitly recognizes that all
evidence - including that governed by Rule 201, Federal Rules
of Evidence - must bear a relationship to some consequential
fact in the case. In other words, the information sought to
be noticed must be relevant within the meaning of Rule 401,
Federal Rules of Evidence. Rule 401 defines relevancy as
evidence having “any tendency to make the existence of
any fact that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence.” Relevance under Rule 401 is a
necessary requirement of all evidence, no matter its
source or when in the litigation it is sought to be used.
See Ambrose v. Roeckeman, 749 F.3d 615, 621
(7th Cir. 2014);United States v. Rogers,
587 F.3d 816, 821 (7th Cir. 2009)(“Relevance, in short,
is necessary, but not sufficient, for admissibility.”);
Horina v. City of Granite City, Ill., 538 F.3d 624,
634 (7th Cir. 2008); United States v.
Liporace, 133 F.3d 541, 544 (7th Cir. 1998);
Edmonds v. United States, 2009 WL 969938, at *1
(D.D.C. 2009). See also United States v. Bailey, 696
F.3d 794, 800 n. 8 (9th Cir. 2012) (emphasis
supplied)(“other-acts evidence, like all
evidence, must be relevant....”); Sera v.
Norris, 400 F.3d 538, 547, n.9 (8th Cir.
2005)(“all evidence must be relevant...to be
admitted.”); Ruiz-Troche v. Pepsi Cola of Puerto
Rico Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998);
Rogers, 587 F.3d at 821 (“Relevance, in short, is
necessary, but not sufficient, for admissibility.”);
Minemyer v. R-BOC Representatives, Inc., 678
F.Supp.2d 691, 709-10 (N.D.Ill. 2009)(a non-hearsay use of a
statement while not violating Rule 801, will nonetheless be
inadmissible unless the non-hearsay use is relevant under
Rule 401). The principle, of course, is equally applicable to
requests for judicial notice. Cf. Rouse v. Connor,
2012 WL 2589240 (N.D.Cal. 2012)(a “request for judicial
notice of facts that are not relevant to the question at
issue” should be denied).
Rule 201 is a constituent part of the Federal Rules of
Evidence, it would be odd if the concept of relevance under
Rule 401, which permeates all of the Rules, was not equally
applicable to Rule 201. Neither Rule 201 nor any other Rule
of Evidence is an exception to the requirement that all
evidence be relevant or it is excluded. Rule
is not an inherent characteristic of any item of evidence but
exists only as a relation between an item of evidence and a
matter properly provable in the case.” Advisory
Committee's Notes on Fed. Rule Evidence 401;
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379,
387-88 (2008); United States v. Mazzanti, 888 F.2d
1165, 1169 (7th Cir.1989), cert. denied, 495 U.S.
930 (1990); United States v. Westbrook, 125 F.3d
996, 1007-08 (7th Cir. 1997). The question is not whether the
disputed evidence has great probative weight, but whether it
has any. United States v. Marks, 816 F.2d 1207, 1211
(7th Cir.1987). Or as Dean McCormick aptly phrased it,
evidence need only be a “brick, not a wall.”
United States v. Pollard, 790 F.2d 1309, 1312 (7th
judge in a case like the present one could not take judicial
notice of an arbitration decision in an antitrust or patent
case simply because Rule 201's definition of adjudicative
facts might be satisfied. Stephen Hawking would be a splendid
witness under Rules 702 and 703 in a case involving physics,
but could not provide admissible testimony in a medical
malpractice case because his testimony would not help the
trier of fact understand the evidence or determine a fact in
issue. See Rules 401, 402 and 702(a) and (d). In
other words, his testimony would not be relevant. So too
here. There must be a showing that the arbitration ruling has
some significance in this case. Otherwise the ruling is
irrelevant and should not be judicially noticed. Rouse v.
Connor, 2012 WL 2589240. The point is basic, and it is,
in effect, one that is recognized by the parties, although
implicitly and without discussion.
judicial notice should be taken is a matter of discretion.
General Elec. Capital Corp., 128 F.3d at 1082-83,
reviewable for abuse. Waid v. Merrill Area Pub.
Sch., 130 F.3d 1268, 1272 (7th Cir. 1997); York v.
American Telephone & Telegraph Co., 95 F.3d 948, 958
(10th Cir.1996); Ritter v. Hughes Aircraft Co., 58
F.3d 454, 458 (9th Cir.1995); Beaton v. Metro.
Transportation Auth. N.Y. City Transit, 2016 WL 3387301,
at *4 (S.D.N.Y. 2016). It is an abuse of discretion to take
judicial notice of an arbitration opinion for the truth of
the facts asserted in it, and a court is not bound by the
Arbitrator's factual conclusions. See Global Network
Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 157
(2nd Cir.2006); Henneberger v. Cty. of Nassau, 465
F.Supp.2d 176, 185 (E.D.N.Y. 2006); Edo Reconnaissance
& Surveillance Sys., Inc. v. Phoenix Logistics,
Inc., 2006 WL 2038058, at *3 (N.D. Cal.
2006).“‘[A] court may not take judicial notice of
proceedings or records in another case so as to supply,
without formal introduction of evidence, facts essential to
support a contention in a case then before it.'”
M/V Am. Queen v. San Diego Marine Constr. Corp., 708
F.2d 1483, 1491 (9th Cir.1983); Kay v. Haack, 2014
WL 4220917, at *7 (D. Or. 2014). If the “factual
predicate” of Allscripts' claim of inadequacy is
accurate, all that would be important would be the
Arbitrator's holding - whether right or wrong - as the
Motion, in effect, acknowledges. However, the Response Brief
denies that the “factual predicate” for
Physicians Healthsource's claim of inadequacy is the
outcome of the arbitration. The motion also claims that the
“findings made by the Arbitrator directly contradict
sworn statements by PHI before [me], ” and that
“this is part and parcel of an ongoing pattern of
behavior that PHI and its counsel” which they
“have exhibited throughout this litigation.”
light of the parties' dispute over the “factual
predicate” for the claim of inadequacy, the arbitration
decision is relevant to this case only through further
explication, and thus, it could be argued, may not now be a
fit subject for the exercise of discretion to take judicial
notice. “[A] request for judicial notice is not a
proper vehicle for legal argument.” Blye v.
California Supreme Court, 2014 WL 295022, at *2 (N.D.
Cal. 2014). Accord Baltazar v. Sea World Parks &
Entm't LLC, 2017 WL 1035777, at *6 (S.D. Cal. 2017).
But Allscripts says it has no objection to the granting of
Physicians Healthsource's Motion, although it
simultaneously argues that “the factual
predicate” for Allscript's claim of inadequacy is
not “erased” by the arbitration. If that be true,
the arbitration holding is irrelevant.
we have said, Allscripts does not object to the Motion, and
thus judicial notice will be taken of the Arbitrator's
ruling. What effect, if any, the Arbitrator's decision
may have in this case remains to be seen. Judicial notice
will not be taken of the correctness or incorrectness of any
disputed fact found by the Arbitrator, and nothing in this
Opinion should be construed as indicating any opinion one way
or the other on the issues before the Arbitrator.