Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 1 of 10
`No. 22-15961
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`DONALD J. TRUMP, ET AL.,
`
`Plaintiffs-Appellants,
`
`v.
`
`TWITTER, INC., ET AL.,
`
`Defendants-Appellees.
`
`
`On Appeal from the United States District Court
`for the Northern District of California
`No. 3:21-cv-0837-JD
`Hon. James Donato
`
`APPELLEES’ RESPONSE TO CERTAIN
`APPELLANTS’ MOTION FOR JUDICIAL NOTICE
`
`
`PATRICK J. CAROME
`ARI HOLTZBLATT
`SUSAN M. PELLETIER
`ALLISON M. SCHULTZ
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`1875 Pennsylvania Avenue, NW
`Washington, D.C. 20006
`Telephone: (202) 663-6000
`patrick.carome@wilmerhale.com
`
`Counsel for Defendants-Appellees
`Twitter, Inc. and Jack Dorsey
`
`
`
`FELICIA H. ELLSWORTH
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`Telephone: (617) 526-6000
`
`EMILY BARNET
`RISHITA APSANI
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`7 World Trade Center
`New York, NY 10007
`Telephone: (212) 937-7294
`November 25, 2022
`
`
`
`
`
`
`No. 22-15961
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`DONALD J. TRUMP, ET AL.,
`
`Plaintiffs-Appellants,
`
`v.
`
`TWITTER, INC., ET AL.,
`
`Defendants-Appellees.
`
`
`On Appeal from the United States District Court
`for the Northern District of California
`No. 3:21-cv-0837-JD
`Hon. James Donato
`
`APPELLEES’ RESPONSE TO CERTAIN
`APPELLANTS’ MOTION FOR JUDICIAL NOTICE
`
`
`PATRICK J. CAROME
`ARI HOLTZBLATT
`SUSAN M. PELLETIER
`ALLISON M. SCHULTZ
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`1875 Pennsylvania Avenue, NW
`Washington, D.C. 20006
`Telephone: (202) 663-6000
`patrick.carome@wilmerhale.com
`
`Counsel for Defendants-Appellees
`Twitter, Inc. and Jack Dorsey
`
`
`
`FELICIA H. ELLSWORTH
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`Telephone: (617) 526-6000
`
`EMILY BARNET
`RISHITA APSANI
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`7 World Trade Center
`New York, NY 10007
`Telephone: (212) 937-7294
`November 25, 2022
`
`
`
`
`
`
`
`Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 2 of 10
`
`
`
`The motion of six of the Appellants—Donald Trump, the American
`
`Conservative Union, Rafael Barbosa, Linda Cuadros, Dominick Latella, and Wayne
`
`Allyn Root (the “Moving Plaintiffs”)—is an abuse of the Federal Rules of Civil
`
`Procedure and the Rules of Evidence. In this appeal from the dismissal of all
`
`Plaintiffs’ amended complaint, the question before the Court is whether that
`
`“complaint … contain[ed] sufficient factual matter, accepted as true, to state a claim
`
`to relief that is plausible on its face.” Perez v. Mortgage Electronic Registration
`
`Sys., Inc., 959 F.3d 334, 337 (9th Cir. 2020) (emphasis added) (citation omitted).
`
`The Moving Plaintiffs now attempt an end run around that well-established standard
`
`by, in effect, seeking to amend their complaint on appeal with hundreds of pages of
`
`new factual allegations. This is procedurally improper. These materials could and
`
`should have been presented to the district court in the first instance either by
`
`inclusion in a second amended complaint—an option all Plaintiffs waived—or
`
`through a request for an indicative ruling on a motion for relief from judgment. The
`
`motion also violates the Rules of Evidence because it seeks judicial notice of
`
`materials not simply “to indicate what was in the public realm at the time” but to
`
`establish that their contents—and inferences that supposedly might be drawn
`
`therefrom—“were in fact true.” Von Saher v. Norton Simon Museum of Art at
`
`Pasadena, 592 F.3d 954, 960 (9th Cir. 2010). The motion should be denied for these
`
`reasons.
`
`1
`
`
`
`Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 3 of 10
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`
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`Even if the Moving Plaintiffs’ request for judicial notice were proper, the
`
`newly submitted documents would not change the soundness of the district court’s
`
`dismissal of Plaintiffs’ claims. Defendants’ merits brief will address the substantive
`
`reasons why the newly proffered documents have no bearing on the validity of the
`
`dismissed claims, and here address only the procedural and evidentiary defects in
`
`the motion.
`
`I.
`
`THE MOVING PLAINTIFFS ARE IMPROPERLY ATTEMPTING TO AMEND
`THEIR COMPLAINT ON APPEAL
`This Court “rarely take[s] judicial notice of facts presented for the first time
`
`on appeal.” Reina-Rodriguez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011).
`
`Extra-record materials may be considered on appeal only when “necessary to
`
`prevent ‘a miscarriage of justice.’” Foskaris v. Experian Info. Sols., Inc., 808 F.
`
`App’x 436, 440 (9th Cir. 2020) (unpublished) (quoting Bolker v. Commissioner of
`
`Internal Revenue, 760 F.2d 1039, 1042 (9th Cir. 1985)). The Moving Plaintiffs have
`
`not and could not make that showing. They do not seek notice of just one or two
`
`discrete facts but of nearly 200 pages of material cited approximately 50 times
`
`throughout their opening brief. This is no ordinary request for judicial notice, but
`
`rather an untimely and improper attempt to amend the complaint and augment the
`
`record on appeal. Having foregone opportunities to properly put these materials
`
`before the district court, the Moving Plaintiffs cannot now belatedly append them to
`
`a closed appellate record.
`
`2
`
`
`
`Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 4 of 10
`
`
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`First, the Moving Plaintiffs cannot now seek judicial notice of material that
`
`could have been timely included in a second amended complaint. The purpose of a
`
`motion to dismiss is to “test[] the legal sufficiency of a claim.” Conservation Force
`
`v. Salazar, 646 F.3d 1240, 1241-1242 (9th Cir. 2011) (quotation marks and citation
`
`omitted). Where a complaint’s factual allegations are found insufficient, plaintiffs
`
`ordinarily are given the opportunity to cure any defects through amendment. Here,
`
`all Plaintiffs were given just that opportunity; the District Court’s May 6, 2022 order
`
`dismissing the first amended complaint gave them until May 27, 2022 to file a
`
`second amended complaint. 1-ER-20. All Plaintiffs, however, “advised the Court
`
`that they ha[d] elected not to file an amended complaint,” and so the district court
`
`entered judgment. 1-ER-2. Given their express decision to forgo amendment, the
`
`Moving Plaintiffs may not now “circumvent th[e] process” for proper review of a
`
`motion to dismiss “by asking [an appellate court] to amend the complaint,
`
`effectively, through the vehicle of judicial notice.” In re Omnicare, Inc. Secs. Litig.,
`
`769 F.3d 455, 467 (6th Cir. 2014) (holding that plaintiff’s request for judicial notice
`
`was “forfeited” where plaintiff did not challenge district court’s denial of request to
`
`amend the complaint). For this reason, the Moving Plaintiffs’ motion should be
`
`denied at least as to all proffered documents that were publicly available on or before
`
`May 27, 2022, which was the last day they could have filed a second amended
`
`3
`
`
`
`Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 5 of 10
`
`
`
`complaint in the district court. This includes, at least, Exhibits 1-10 and 17-28, all
`
`of which are public documents dated between April 12, 2019, and May 25, 2022.
`
`Second, with respect to any information that they were able to obtain only
`
`after they decided not to amend their complaint, the Moving Plaintiffs could have
`
`sought relief through proper channels established in the Federal Rules of Civil and
`
`Appellate Procedure. Having chosen not to, their request to now augment the record
`
`on appeal is improper. Where newly discovered evidence calls a judgment into
`
`question, a party may seek relief through Federal Rule of Civil Procedure 60(b). Of
`
`course, while an appeal is pending a district court has no jurisdiction to revisit the
`
`order being appealed. Federal Rule of Civil Procedure 62.1, however, provides an
`
`avenue for relief: A litigant may seek an “indicative ruling” from the district court
`
`as to whether it would grant a motion, such as a Rule 60(b) motion, over which it no
`
`longer has jurisdiction “because of an appeal that has been docketed and is pending.”
`
`Fed. R. Civ. P. 62.1. If the district court were to indicate that it would grant such a
`
`motion or that the motion raised a substantial issue, the movant could then notify the
`
`clerk for the court of appeals under Federal Rule of Appellate Procedure 12.1. The
`
`court of appeals could then remand for further proceedings in the district court. See
`
`Fed. R. Civ. P. 12.1(b).
`
`The Moving Plaintiffs are undoubtedly aware of these procedures. Their co-
`
`plaintiff, Naomi Wolf, filed a motion for indicative ruling in the district court
`
`4
`
`
`
`Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 6 of 10
`
`
`
`seeking relief from judgment based on the same set of documents included in
`
`Exhibits 13-16 of the instant motion. See Declaration of Scott J. Street, Trump v.
`
`Twitter, Case No. 3:21-cv-08378-JD, Dkt. 177 (Aug. 26, 2022); Supplemental
`
`Declaration of Scott J. Street, Trump v. Twitter, Case No. 3:21-cv-08378-JD, Dkt.
`
`180 (Sept. 8, 2022). Inexplicably, having elected not to join Wolf’s motion or
`
`otherwise seek relief in the district court, the Moving Plaintiffs now seek to put these
`
`same documents directly before this Court through a request for judicial notice. This
`
`Court should not condone such abuse of the rules of civil procedure and should deny
`
`the Moving Plaintiffs’ motion.
`
`II. THE MOVING PLAINTIFFS IMPROPERLY SEEK JUDICIAL NOTICE OF THE
`TRUTH OF MATTERS ASSERTED IN AND INFERENCES DRAWN FROM THE
`MATERIALS SUBMITTED
`In addition to being procedurally improper, the motion also abuses the Rules
`
`of Evidence. The Rules of Evidence distinguish between the existence of a
`
`document, which is “susceptible to judicial notice,” and the “assertion[s] of fact
`
`within that document,” which are not. Khoja v. Orexigen Therapeutics, Inc., 899
`
`F.3d 988, 999 (9th Cir. 2018). Moreover, statements the meaning or import of which
`
`are “subject to varying interpretations,” are particularly inappropriate for judicial
`
`notice. Id. at 1000 (quotation marks and citation omitted) (holding that while a
`
`transcript was a source whose accuracy could not reasonably be questioned, facts
`
`contained in the transcript did “not qualify for judicial notice”). Courts, therefore,
`
`5
`
`
`
`Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 7 of 10
`
`
`
`may take judicial notice of the existence of a public document, but “may not, on the
`
`basis of [such documents], draw inferences” or take notice of the truth of the matters
`
`asserted. United States v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011);
`
`accord Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (similar).
`
`Here, the Moving Plaintiffs impermissibly seek notice not of the existence of
`
`the many documents attached to their motion, but of debatable inferences drawn
`
`from those documents and the truth of the dubious assertions they contain. Most
`
`egregious, perhaps, are Exhibits 20 and 21, online articles of unknown provenance
`
`of which the Moving Plaintiffs seek notice for the facts they contain about
`
`“[i]nvestors’ and voters’ reactions to information in the public realm about
`
`government coercion and suppression of disfavored content.” MJN at 9. This turns
`
`the mechanism of judicial notice on its head. Judicial notice of news articles is
`
`appropriate only “to indicate what was in the public realm at the time,” Von Saher,
`
`592 F.3d at 960—not subjective reactions to such information. But the Moving
`
`Plaintiffs seek notice of these articles to establish how one individual “interpret[ed]
`
`… statements [from legislators] to pressure social media,” Br. 41 (citing MJN Ex.
`
`20), and that, according to one poll, “awareness of the Hunter Biden scandal would
`
`have led 9.4% of Biden voters to abandon the Democratic candidate,” Br. 3-4 (citing
`
`MJN Ex. 21). Because the truth of such “facts” cannot be “determined from sources
`
`whose accuracy cannot reasonably be questioned,” Fed. R. Evid. 201(b)(2), they
`
`6
`
`
`
`Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 8 of 10
`
`may not be established by means of judicial notice.
`
`The Moving Plaintiffs’ other requests are similarly inappropriate. They seek
`
`notice of various written communications and hearing transcripts to establish not
`
`their existence but the truth of inferences drawn from their contents—specifically,
`
`that “Members of Congress and senior officials in the Executive Branch specifically
`
`threatened … legal penalties if Defendants did not censor speakers and content
`
`disfavored by those officials,” MJN 9 (referencing Exhibits 1-10, 18-19, 22-25, and
`
`27), and that “government officials … have worked directly, but covertly, with
`
`Defendants and other social media companies to identify and censor disfavored
`
`content on social media,” MJN 9 (referencing Exhibits 11-16).1 Rule 201 cannot be
`
`stretched in this way. As this Court has held, “[i]t is improper to judicially notice a
`
`transcript where the substance of that transcript is subject to varying interpretations”
`
`because in such circumstances “there is no fact established by the transcript” the
`
`1 In one instance, the Moving Plaintiffs seek notice not of communications between
`government officials and social media companies, but of a news article reporting on
`a statement by the Attorney Generals of Missouri and Louisiana characterizing what
`they believed communications produced in litigation showed. See MJN 76 (Ex. 13).
`According to the Moving Plaintiffs, this article establishes, by means of judicial
`notice, that government actors “regularly coordinate with social media platforms
`about suppressing speech that disagrees with the government’s preferred narratives.”
`Br. 14 citing MJN 76-68). That is not a fact “capable of accurate and ready
`determination by resort to” an article reporting on litigants’ biased interpretation of
`certain documents, Fed. R. Evid. 201(b)(2).
`
`7
`
`
`
`Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 9 of 10
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`
`
`accuracy of which can be readily determined. Khoja, 899 F.3d at 1000 (quotation
`
`marks and citation omitted); accord United States v. Raygoza-Garcia, 902 F.3d 994,
`
`1001-1002 (9th Cir. 2018) (the Rules of Evidence do not permit this Court to “draw
`
`inferences from the [information] contained” in extra-record material by means of
`
`judicial notice). Because the meaning and import of the statements included in these
`
`documents are subject to interpretation, they are not proper subjects of judicial
`
`notice.
`
`CONCLUSION
`
`The motion for judicial notice should be denied.
`
`
`
`FELICIA H. ELLSWORTH
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`Telephone: (617) 526-6000
`
`EMILY BARNET
`RISHITA APSANI
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`7 World Trade Center
`New York, NY 10007
`Telephone: (212) 937-7294
`
`November 25, 2022
`
`Respectfully submitted,
`
`
`
`/s/ Patrick J. Carome
`PATRICK J. CAROME
`ARI HOLTZBLATT
`SUSAN M. PELLETIER
`ALLISON M. SCHULTZ
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`1875 Pennsylvania Avenue, NW
`Washington, D.C. 20006
`Telephone: (202) 663-6000
`patrick.carome@wilmerhale.com
`
`Counsel for Defendants-Appellees
`Twitter, Inc. and Jack Dorsey
`
`8
`
`
`
`Case: 22-15961, 11/25/2022, ID: 12595957, DktEntry: 42, Page 10 of 10
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 25th day of November, 2022, I electronically
`
`filed the foregoing with the Clerk of the Court for the United States Court of
`
`Appeals for the Ninth Circuit using the appellate CM/ECF system. Counsel for all
`
`parties to the case are registered CM/ECF users and will be served by the appellate
`
`CM/ECF system.
`
`/s/ Patrick J. Carome
`PATRICK J. CAROME
`
`
`
`
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