What should you do when the court takes judicial notice of adjudicative facts without any advance notice that it would be doing so? The Fifth Circuit recently addressed this situation and held (1) that it was not improper for the district court to take judicial notice without giving prior notice to the parties and (2) that the complaining party should have moved for reconsideration to preserve error. Center for Biological Diversity, Inc. v. BP America Prod. Co., 704 F.3d 413, 423 (5th Cir. 2013).
The plaintiff specifically asked that the parties be given advance notice of any facts that would be judicially noticed. But without advance notice, the district court took judicial notice of facts related to the oil well at issue. The Fifth Circuit acknowledged that parties are generally entitled to advance notice and to the opportunity to take discovery about the facts to be judicially noticed. But the Fifth Circuit found that the plaintiff had not preserved error because it should have filed a motion for reconsideration and sought a "retrospective hearing " regarding the judicially noticed facts.
Thus, although a motion for reconsideration is not usually necessary to preserve error, it may be necessary when it is your first opportunity to raise your complaint and have it fully considered by the court.
This result makes sense in light of the general error preservation principle that the lower court must be given notice of the purported error and an opportunity to correct it. If that opportunity first arises after the fact, then a motion for reconsideration may be necessary.
-- Rich Phillips, Thompson & Knight
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