Case: 16-15469, 06/16/2017, ID: 10477636, DktEntry: 42, Page 1 of 6

Case No. 16-15469

IN THE
United States Court of Appeals
for the Ninth Circuit
NARUTO, A CRESTED MACAQUE, BY AND THROUGH HIS NEXT FRIENDS,
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.,

PLAINTIFF-APPELLANT,

v.

DAVID JOHN SLATER, WILDLIFE PERSONALITIES, LTD.,

AND BLURB, INC.,

DEFENDANTS-APPELLEES,

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA IN CASE NO. 3:15-CV-04324,
U.S. DISTRICT JUDGE WILLIAM H. ORRICK III

REPLY BRIEF IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE

BY DEFENDANTS-APPELLEES DAVID JOHN SLATER
AND WILDLIFE PERSONALITIES, LTD.

ANDREW J. DHUEY
456 Boynton Avenue
Berkeley, California 94707
(510) 528-8200

Attorney for Defendants-Appellees,

David John Slater and
Wildlife Personalities, Ltd.

16 June 2017
 Case: 16-15469, 06/16/2017, ID: 10477636, DktEntry: 42, Page 2 of 6

REPLY BRIEF IN SUPPORT OF

REQUEST FOR JUDICIAL NOTICE

Defendants-Appellees David John Slater and Wildlife Personalities,

Ltd. (henceforth, Slater) respectfully submit this reply brief in support of

their motion to take judicial notice of the Complaint Summons in New

Jersey v. Engelhardt.

DISCUSSION

People for the Ethical Treatment of Animals, Inc. (PETA) opposes

Slaters Request for Judicial Notice on the grounds that 1) the Complaint

Summons in New Jersey v. Engelhardt was not properly authenticated, 2)

this state court action is irrelevant to any issue before this Court, and 3) the

Request improperly asks this Court to take notice of potentially disputed

factual allegations. PETA Opp. at 2-5. Slater addresses these positions in

turn.

I. Authentication.

That the submitted Complaint Summons is a true and correct copy

(with redactions) of a court record in New Jersey v. Engelhardt is not

subject to reasonable dispute under Federal Rule of Evidence 201(b).

Indeed, PETA disputes not its accuracy, but whether it was properly

authenticated. Slaters counsel stated under oath how he obtained this court


 Case: 16-15469, 06/16/2017, ID: 10477636, DktEntry: 42, Page 3 of 6

record from the Allamuchy Township Municipal Court. Request at 4. If at

oral argument PETA refuses to confirm the authenticity of this state court

record, this Court could accurately and readily determine[] its authenticity

directly with clerk of court at (908) 852-0576. Fed. R. Evid. 201(b)(2).

II. Relevance.

The Complaint Summons bears on whether PETA can be Plaintiffs

sole next friend on appeal. To be a suitable next friend of Plaintiff,

PETA must not only satisfy the constitutional standing requirements of

Article III it must also satisfy the non-constitutional standing

requirements of the statute under which [it] seeks to bring suit. City of

Sausalito v. ONeill, 386 F.3d 1186, 1199 (9th Cir. 2004). PETAs next

friend suitability is a question of non-constitutional, prudential standing.

Coalition of Clergy v. Bush, 310 F.3d 1153, 1163 (9th Cir. 2002). PETA

bears this continuing burden at all points on appeal. See, e.g, Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 9-10 (2004) (Ninth Circuit merits

decision reversed due to next friend prudential standing problems that

arose for the first time on appeal).

Thus, it is for PETA to explain why the documented animosity

evident in the Complaint Summons between it and its former, fellow

putative next friend in this action, Antje Engelhardt, Ph.D., does not


 Case: 16-15469, 06/16/2017, ID: 10477636, DktEntry: 42, Page 4 of 6

impact PETAs suitability to be Plaintiffs representative in this action.

According to PETA, in the complaint signed by, among other counsel,

Jeffrey S. Kerr, Dr. Engelhardt has known, monitored, and studied Naruto

since his birth. ER 23.

How can PETA, having alleged no relationship with Naruto, be a

suitable next friend for him when PETAs relationship with the

primatologist who does allege a lifelong relationship with him has soured to

the point that PETAs general counsel had her arrested for criminal trespass

and harassment? It is not Slaters burden to show that the personal animosity

between Dr. Engelhardt and PETA evident in the submitted Complaint

Summons renders PETA an unsuitable next friend of Plaintiff. It is rather

on PETA to try to explain away the circumstances of the Complaint

Summons, and to affirmatively show why on appeal it is a suitable next

friend for Plaintiff.

III. Facts not Subject to Reasonable Dispute.

Slater does not ask this Court to take judicial notice of any disputed

facts. He asks only that the Court take notice of a pending criminal case in

which Dr. Engelhardt is charged with criminal trespass and harassment

involving an incident at the residence of Jeffrey S. Kerr, who is PETAs

general counsel, and who represented Dr. Engelhardt in this action prior to


 Case: 16-15469, 06/16/2017, ID: 10477636, DktEntry: 42, Page 5 of 6

her withdrawal from the case after PETA appealed the district courts

decision.

CONCLUSION

For the reasons set forth above, Slater respectfully requests that this

Court take judicial notice of Exhibit A, attached to the Declaration of

Andrew J. Dhuey, filed with Slaters Request for Judicial Notice.

Respectfully submitted,

/s/ ANDREW J. DHUEY

Attorney for Defendants-Appellees,
DAVID JOHN SLATER and
WILDLIFE PERSONALITIES, LTD.


 Case: 16-15469, 06/16/2017, ID: 10477636, DktEntry: 42, Page 6 of 6

9th Circuit Case Number(s) 16-15469

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
Jun 16, 2017
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.

Signature (use "s/" format) s/ Andrew J. Dhuey

*********************************************************************************
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .

Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:

Signature (use "s/" format)