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Icon-UpArrow Judicial Notice #2 (Makere v Allstate)

O | APPELLANT’S MOTION FOR JUDICIAL NOTICE REGARDING ALLSTATE INSURANCE COMPANY'S ONGOING PERJURY (#2)

UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
ELIAS MAKERE, FSA, MAAA
Appellant/Plaintiff



vs.



ALLSTATE INSURANCE COMPANY,
Appellee/Defendant		 )
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24-11336-JJ



Case No (LT): 3:20-cv-00905-MMH-LLL
US District Court, Florida, Middle District

APPELLANT’S MOTION FOR JUDICIAL NOTICE OF
APPELLEE’S OFFICIAL POSITION STATEMENT

Appellant, ELIAS MAKERE, on this 15th day of November 2024, respectfully moves this Court to take judicial notice of the Official Position Statement that Appellee filed with the Florida Commission on Human Relations (FCHR) (on September 8, 2017).

Key Points:
• Points: sex vs no sex [discrimination]; Appellee’s fraud • Grounds: issue-on-appeal (manifest injustice)
Table of Contents:
Context1nd Page
Motion3rd Page
Certificates14th Page
Exhibits17th Page
Attachments38th Page
Background:Appellant charged Appellee with sex discrimination
Problem:Appellee’s material lie will defraud this Court
Request:This Court judicially notices Appellee’s statement
Rule 201 | Fed. R. Evid. | Judicial Notice
"(b) KINDS OF FACTS THAT MAY BE JUDICIALLY NOTICED. The court may judicially notice a fact that...
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."
Rule 402 | Fed. R. Evid. | General Admissibility of... Evidence
"Relevant evidence is admissible unless [prohibited by law]"
Addendum 8 | 11th Cir. R. | Rules Governing Attorney Discipline...
"When alleged attorney misconduct is brought to the attention of the Court... the Court may dispose of the matter through the use of its inherent, statutory, or other powers; refer the matter to an appropriate state bar agency for investigation and disposition... or take any other action the Court deems appropriate."
Rule 3-4.3 RRTFB | Misconduct and Minor Misconduct
"The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline whether the act is committed in the course of the lawyer’s relations as a lawyer or otherwise, whether committed within Florida or outside the state..."
Precedence
• 02-16215- 11th Cir. (1/30/04)
• 07-12874- 11th Cir. (2/4/09)
This Circuit usually grants motions for judicial notice
Abbreviations
[OB###]Paragraph ### from Appellant’s Opening Brief
FCHRFlorida Commission on Human Relations
FSFlorida Statute
LTLower Tribunal
USFLMDUS District Court, Florida, Middle District
USFLSDUS District Court, Florida, Southern District

MOTION

I. Background | Administrative History

1. On June 30, 2017, Appellant filed an employment discrimination complaint with the FCHR (“First Charge”). Pursuant to §760.11(1) FS, he alleged that Appellee had violated his rights on the bases of race and sex. [Exhibit A]

2. On September 8, 2017, Appellee denied both allegations. Thereby acknowledging – explicitly – that Appellant’s First Charge contained “allegations of discrimination based upon race and sex discrimination” (emphasis added). [Exhibit B]

3. On December 15, 2017, the FCHR concluded its investigation. Notably affirming that race and sex were the bases of Appellant’s First Charge. [Exhibit C]

4. On April 10, 2019 – and due to Appellee’s continued retaliation – Appellant sent the FCHR his second discrimination complaint (“Second Charge”). [OB023]-[OB032]

II. Background | Judicial History

5. On August 12, 2020, Appellant sued Appellee in federal court. Doing so under both federal (42 USC §1981) and state law (§760 FS).

6. On May 21, 2021, Appellee filed a document in the District Court; thereby [falsely] stating that Appellant’s First Charge did not include a basis of sex discrimination (highlights added):
“On June 30, 2017, Plaintiff filed a Charge of Discrimination (“First Charge”) with the FCHR, which alleged racial discrimination, as well as retaliation, in violation of the FCRA...

On January 19, 2018, Plaintiff filed a 231-page Petition for Relief (“First Petition”) with the FCHR... Plaintiff also, for the first time, alleged sex discrimination and/or sexual harassment.”
[Exhibit D]

7. Yet – within that same court filing – Appellee attached a document. A document, importantly, that showed that Appellant’s First Charge did [indeed] include a basis of sex discrimination. [Exhibit E]

8. So, twenty-one days (21) later – on June 11, 2021 - Appellant moved the LT to punish Appellee (via Rule 11 Sanctions) for Appellee’s material lie. [Exhibit F] Appellant’s motion, however, remained pending for 2+ years (see ¶10 infra).

9. On June 25, 2021, Appellee responded to Appellant’s motion; thereby acknowledging the fact that Appellant accused Appellee with perpetrating a fraud upon the LT. [Exhibit G]

10. At last, on March 26, 2024 (ie, 2+ years later), the LT finally ruled on Appellant’s [first] Motion for Sanctions (¶8 infra). Thereby denying it on account of a procedural technicality (highlights added):
“Appellant asserts that he satisfied the [procedural requirement] via emails and phone calls he exchanged with opposing counsel...However, [the procedural rule] specifically requires service of the motion...Accordingly [Appellant’s First] Motion for Sanctions is due to be denied.”
11. On April 11, 2024 – and imbued with the LT’s rescue – Appellee repeated its perjury. Thereby telling the LT [once again] that Appellant’s First Charge did [not] include a basis of sex discrimination. Appellee did so, notably, while [once again] aiming to molest Appellant’s time & money. [Exhibit H]

12. So, on May 6, 2024, Appellant [once again] moved the LT to punish Appellee (via Rule 11 Sanctions) for Appellee’s [repeated] lie of material fact. [Exhibit I]

13. On August 9, 2024, the LT deferred ruling on Appellant’s [Renewed] Motion for Sanctions (¶11 supra); thereby ripening this appeal.

III. Analysis of Appellee's Perjury

14. Appellant’s First Charge included a sex discrimination basis (¶1 supra).

15. Appellee knew that Appellant’s First Charge included a sex discrimination basis (¶2 supra). In fact – in its very first [notarized] filing – Appellee [explicitly] acknowledged the sex discrimination basis (highlights added):
“As outlined below, the allegations of discrimination based upon race and sex discrimination from [Appellant] are...”
16. Plus, the State of Florida (via the FCHR) affirmed that Appellant’s First Charge was based on race and sex (¶3 supra).

17. In the face of these realities/acknowledgements/affirmations, though, Appellee decided to lie (¶6 supra). In fact, Appellee exacerbated its lie by attaching the [contradictory] proof to its dishonest filing (¶7 supra).

18. Unfortunately, the LT let Appellee’s lie fester for 2+ years. Culminating in the LT propping up a procedural technicality to rescue Appellee from accountability (¶10 supra). A technicality which the LT did not [even] support with any binding appellate court precedent (instead, the LT used an unpublished opinion from a sister court (USFLSD)).

19. Imbued with this unwarranted grace, Appellee repeated its lie (¶11 supra). And it did so, notably, in its [consummate] molestation of Appellant’s time & money. A molestation that:
a. perpetrated a fraud upon the LT; and

b. will perpetrate a fraud upon this Court.

IV. Purpose of Judicial Notice

20. As a remedy, judicial notice [of the underlying fact] will help minimize the corrosive effects that Appellant’s [repeated] lie could/will have on these proceedings.

21. First, the document (ie, Appellee’s Official Position Statement – [Attachment B]) will show that the basis of Appellant’s First Charge [against Appellee] always included sex discrimination.
a. According to the US Supreme Court – as enunciated in McDonnell-Douglas v Green, 411 US 792 – exclusion of a protected characteristic equates to a violation of due process.
22. Moreover, Appellant’s perjured statements to the contrary (¶15, ¶19 supra) act as an extrinsic fraud upon the court (emphasis added):
“[Extrinsic Fraud is defined as] fraud that prevents a party from knowing about his or her rights or defenses or from having a fair opportunity to present or litigate them at a trial. It is a ground for equitable relief from a judgment.”
This is applicable [to the instant case] because Appellant proffered its [repeated] false statements to abridge Appellant’s full & fair opportunity to litigate his case (see 14th Amendment). Appellee did so, notably, throughout a multi-year conquest [of fraud].

23. As the 11th Circuit Court of Appeals established (ie, this Court), fraud upon the court is (a) sanctionable; and (b) an impetus for investigation:
“Courts have the inherent authority to control the proceedings before them, which includes the authority to impose “reasonable and appropriate” sanctions. See Malautea v Suzuki Motor Co., Ltd., 987 F.2d 1536, 1545 (11th Cir. 1993). A court also has the power to conduct an independent investigation to determine whether it has been the victim of fraud.”
Thus, these two elements (due process, extrinsic fraud) are crucial to the fair adjudication of this case.

24. Secondly, judicial notice [of Appellee’s Official Position Statement – [Attachment B]] will serve as judicial estoppel against Appellee’s continued falsehoods on the topic:
“The doctrine of judicial estoppel prevents a party from asserting a factual position in a legal proceeding that is contrary to a position previously taken by him in a prior legal proceeding.”
As the Second Circuit explained in Simon, the purpose of judicial estoppel is to reinforce integrity:
“The courts invoke judicial estoppel as a means to “preserve the sanctity of the oath” or to “protect judicial integrity by avoiding the risk of inconsistent results in two proceedings.” Bates, 997 F. 22 at 1038”
25. As detailed throughout this cause of action, Appellant has been lacking integrity for a long time. [OB001]-[OB033]
a. To be specific, Appellant – in the [originating] state administrative tribunal – took the [official/notarized] position that Appellant charged it with sex discrimination (among other things).

b. Now, - in the federal judiciary – Appellant has been [falsely] claiming the opposite.
26. Thus, this Court is well-positioned to take judicial notice of Appellee’s Official Position Statement. Especially considering how the document:
a. is public record (see Menimonee v Thompson, 161 F.3d 449 (7th Cir. 1998));

b. is relevant (see Rule 402 Fed. R. Evid.);

c. will support this Court’s inherent power to punish Appellee for Appellee’s [ongoing/imminent] perjury (Addendum 8 11th Cir. R.; Rule 3-4.3 RRTFB); and

d. will help judicially estop Appellee from [further] eroding the judiciary’s adjudicative abilities.

V. Nature of Relief Sought

27. Appellant hereby asks this Court to judicially notice Appellee’s Official Position Statement (appended as [Attachment B]) only to the following extent:
a. It is a fact that – on September 8, 2017 – Appellee acknowledged that Appellant charged Appellee with both race and sex discrimination.

VI. Argument in Support of Taking Judicial Notice

23. Rule 201(b) Fed. R. Evid. bestows this Court with the power to take judicial notice of “a fact that is not subject to reasonable dispute”.
a. Here, in the instant case, Appellee cannot reasonably dispute the proffered item. Mainly because the item came directly from Appellee. In fact, Appellee: signed it; dated it; and had it notarized (thereby submitting it under the penalty of perjury).
29. In the Zurich case, the LT maintained that it can take judicial notice of material arising from prior proceedings:
“Notably, courts may take judicial notice of documents arising from a prior proceeding because they are matters of public record and ‘capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned.’”
30. The LT’s Zurich decision, importantly, was founded on this Court’s decision in Horne v. Potter, 392 F. App’x 800 (11th Cir. 2010). Therein, this Court held that it can take judicial notice of items that are public record (highlights added):
“The district court properly took judicial notice of the documents in [the plaintiff’s] first case, which were public records that were "not subject to reasonable dispute" because they were "capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned."”
31. Plus, the US Supreme Court ruled that a court can take limited/pertinent judicial notice:
“Accordingly, a court may take notice of another court's order only for the limited purpose of recognizing the "judicial act" that the order represents or the subject matter of the litigation.””
32. In short, these judicial decisions fit Appellant’s motion perfectly. As he is only asking for this Court to take official recognition of material that is public record.

CONFERRAL

On November 12, 2024, Appellee responded that it opposes this motion. Appellant thereby asked Appellee whether Appellee disputed the underlying fact (ie, that Appellee acknowledged – on 9/8/17 - that Appellant’s First Charge included a basis of sex discrimination). Appellee, however, never gave a direct answer (despite multiple emails/calls).

Moreover, Appellant asked Appellee whether Appellee disputed that Attachment B was a true & correct copy of Appellee’s Official Position Statement. Appellee, however, remained silent. [Attachment A]

Thus, given all-of-the-above, Appellant finds a compelling (ie, due process; extrinsic fraud) and important (ie, issue-on-appeal) reason for this motion.

CONCLUSION

WHEREFORE, Appellant respectfully asks this Court to take judicial notice of Appellee’s Official Position Statement (accord Rule 27 Fed. R. App. P.).1/ [Attachment B]

Dated this 15th day of November 2024.
Respectfully submitted,

/s/ Elias Makere
Elias Makere, FSA, MAAA
Plaintiff
PO Box 324
Hobart, IN 46342
P: 904.294.0026
E: Justice.Actuarial@gmail.com
W: TextBookDiscrimination.com
   Get Booked Up on Justice!

Endnotes:

1/ Moreover, Appellant will supplement this motion with records of Appellee’s repeated perjury. Repeated perjury that Appellee will consummate with its [prospective] answer brief.

Link to Underlying Complaint (HTML, PDF, Video)

HTMLTextBookDiscrimination.com/Allstate/Complaint-Full.html
PDFTextBookDiscrimination.com/Files/USFLMD/20000905_AAC_20211104_230439.pdf
VIDEOhttps://youtu.be/e3mgBPHesXg

Electronic Copy: (text-searchable)
TextBookDiscrimination.com/Files/CA11/24011336_GMOT_20241115_102518.pdf
TextBookDiscrimination.com/Allstate/JudicialNotice02
How-To: Write a Motion for Judicial Notice

CERTIFICATE OF COMPLIANCE

1. Type-Volume

☒ This document complies with the word limit of Rule 27(d)(2)(A) Fed. R. App. P., because - excluding the parts of the document exempted by Rule 32(f) - this document contains 2,132 words.

or

☐ This brief complies with the line limit prescribed by Rule 32(a)(7)(B)(i) Fed. R. App. P., because – excluding the parts of the document exempted by Rule 32(f) – this document contains [NNNN] lines of monospaced text.

2. Typeface and Type-Style

☒ This document uses Courier New (12-Pt) Font; thereby complying with the typeface requirements of Rule 32(a)(5)(B) Fed. R. App. P.. This document also satisfies the type-style requirements of Rule 32(a)(6).
/s/ Elias Makere
DateElias Makere, FSA, MAAA

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 15th day of November 2024, I electronically filed the foregoing with the Clerk of Courts by using PACER; which will send a notice of electronic filing to the attached service list.
/s/ Elias Makere

CIP

United States Court of Appeals
Eleventh Circuit

24-11336-JJ
Makere v Allstate



{unchanged}

UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT

Makere v Allstate, 24-11336-J

CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT

Lower Tribunal:
Lambert, LauraMagistrate
Howard, MarciaDistrict Judge
Parties:
Allstate Insurance Company
(NYSE: ALL)		Appellee
Makere, Elias (FSA, MAAA)Appellant
Appellant is not a subsidiary/affiliate of a publicly owned corporation. Pursuant to Rule 26.1-2 11th Cir. R., Appellant does not know of any other entities that have interest in this case. Appellant hereby certifies that this CIP is complete.

EXHIBITS

ATTACHMENTS

Congratulations! You're now Booked Up on the Plaintiff's Motion for Judicial Notice that a Floridian filed in this textbook case of employment discrimination (against Allstate Insurance Company).

Reading it might help you recover from the damages that lawbreaking organizations/judges/lawyers/agencies have inflicted upon you [and/or the public] (see this example of a Florida judge who outright committed perjury).
Also, please beware that the FCHR (ie, the state agency incriminated in this lawsuit) has corrupted itself. Thereby doing so in the following ways (among others):
Nevertheless – and as always – please get the justice you deserve.

Sincerely,



www.TextBookDiscrimination.com
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logoInfo Info: FCHR Bribery
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Makere v Allstate (3:20-cv-00905) (USFLMD)
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