In the movie The Last Jedi, Supreme Leader Snoke observes “My disappointment in your performance cannot be overstated.” It appears that Snoke could find like minds on the United States Court of Appeals for the Ninth Circuit. In Briseno v. Henderson, Judge Kenneth K. Lee took a rather broad view of “judicial notice” to declare recently that the 2017 movie was “mediocre and schlocky.”
The appeal involved objections to a diversity action where the class alleged that ConAgra Foods, Inc. used a misleading “100% Natural” label on Wesson Oil. The issue was whether the district court improperly shifted the burden to the Objector to the settlement and the Ninth Circuit found that it did. However, Judge Lee had an additional cinematic grievance to air.
Lee notes in the opinion:
“Simply put, Richardson – the new owner of Wesson Oil – can resume using the ‘100% Natural’ label at any time it wishes, thereby depriving the class of any value theoretically afforded by the injunction. ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory.”
To avoid any question as to what he is referencing, Lee drops a footnote stating “As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.”
Under the Federal Rules of Evidence 201 (Judicial Notice of Adjudicative Facts), a court can take judicial notice under either of two conditions:
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
One could argue that it was both generally known within the Ninth Circuit and not reasonably questioned that The Last Jedi was a schlocky movie. However, there was a divide between critics (who loved the movie) and moviegoers (who panned it.). Thus, even if movie reviews could be shoehorned into judicial notice categories, this would be treated as a contested fact.
Movie references are, of course, not uncommon in judicial opinions. For example, when Attorney General Merrick Garland was still on the D.C. Circuit, he used “My Cousin Vinny” to make a point in Novato Healthcare Center v. National Labor Relations Board on the importance of cross-examination. Garland noted “In 1992, Vincent Gambini taught a master class in cross-examination, Trial counsel for the National Labor Relations Board and the National Union of Healthcare Workers apparently paid attention.” Garland actually dropped two footnotes to reference the questioning of witness Sam Tipton as an example of cross examination at its best:
“Q. Do you remember what you had?
A. Eggs and grits.
Q. Eggs and grits. I like grits, too. How do you cook your grits? You like ’em regular, creamy or al dente?
A. Just regular, I guess.
Q. Regular. Instant grits?
A. No self-respecting Southerner uses instant grits. I take pride in my grits.
Q. So, Mr. Tipton, how could it take you five minutes to cook your grits, when it takes the entire grit-eating world 20 minutes? … Perhaps the laws of physics cease to exist on your stove? Were these magic grits?”
Of course, the court omits the worst example of cross examination when Tipton is cross examined on his wearing of prescription glasses with disastrous results by the other defense counsel (later dismissed by his client).
It is rare however to have an actual movie review in an opinion, but this is one judicial notice controversy that is unlikely to be challenged.
After all, the Ninth Circuit can always quote Poe Dameron from the movie, “We’ve pulled crazier stunts than this.”