The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BARBARA COOPER,
Plaintiff,
v. Case No: 2:23-cv-28-JES-NPM
MILLIMAN, INC.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of Plaintiff
Barbara Cooper’s Request for Judicial Notice (Doc. #154)
filed on May 8, 2025. Defendant Milliman, Inc. filed a
Response in Opposition (Doc. #156) on May 9, 2025. For the
reasons set forth below, the motion is denied.1
I.
“Rule 201 of the Federal Rules of Evidence permits a
court to ‘judicially notice a fact that is not subject to
reasonable dispute because it’ either ‘is generally known
within the trial court's territorial jurisdiction’ or ‘can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.’” Bryant v. Ford, 967 F.3d
1272, 1275 (11th Cir. 2020) (quoting Fed. R. Evid. 201(b)).
1 While Plaintiff insists his filing is a “request” and
not a motion, any request for a court order is a motion. Fed.
R. Civ. P. 7(b)(1).
Additionally, the fact must be “relevant to a determination
of the claims presented in a case.” Dippin' Dots, Inc. v.
Frosty Bites Distribution, LLC, 369 F.3d 1197, 1204 (11th
Cir. 2004)(citing Fed. R. Evid. 201(b)). The power to take
judicial notice, however, should be exercised with caution.
Brown v. Piper, 91 U.S. 37, 42–43 (1875). “The reason for
this caution is that the taking of judicial notice bypasses
the safeguards which are involved with the usual process of
proving facts by competent evidence in district court.” Paez
v. Sec'y, Fla. Dep't of Corrs., 947 F.3d 649, 652 (11th Cir.
2020) (quoting Shahar v. Bowers, 120 F. 3d 211, 214 (11th
Cir. 1997)).
II.
The three documents in question were filed on the docket:
(1) a webpage from the U.S. Census Bureau website entitled,
“Frequently Occurring Surnames from the 2010 Census” and a
corresponding Excel Spreadsheet from the same website; (2) a
data table from the Social Security Administration website
titled “Top Names Over the Last 100 Years”; and (3) an
advisory opinion titled “Fair Credit Reporting; Name-Only
Matching Procedures” published by the Consumer Financial
Protection Bureau within the Federal Register. (See Doc.
#154-1, 2, 3.)2
The excel sheet from the U.S. Census Bureau ranks the
top 1,000 frequently occurring surnames from the 2010 census,
along with some demographic characteristics associated with
that surname. For example, the excel sheet lists “Cooper” as
the 70th most reported surname in the 2010 census with 280,791
people, of which only 2.4% are of Hispanic or Latino origin.
(Doc. #154-1, p. 5.) The Social Security Administration table
ranks “the 100 most popular given names for male and female
babies born during the last 100 years, 1924-2023.” (Doc. #154-
2, p. 2.) It ranks “Barbara” as the 6th most popular given
name for female babies in the last 100 years. (Id.)
The Court declines to take judicial notice of these first
two documents because they are irrelevant. Here, another
Barbara Cooper was confused with Plaintiff Barbara Cooper
partly because they shared both the first and last name. (Doc.
#116, pp. 10, 12.) It has never been alleged or argued that
Defendant relied only on the given name “Barbara” or only on
2 Plaintiff labeled these exhibits as “Exhibit A”,
“Exhibit B”, and “Exhibit C”. However, the exhibits appear on
the Court’s CM/ECF system as Exhibits 1, 2, and 3. The Court
will cite each exhibit herein by the numerical number assigned
to it by the Court's CM/ECF system.
the surname “Cooper” when formulating its reports. Thus, the
only relevant name in this case is “Barbara Cooper.”
That means the first document includes statistics and
demographic information for 999 surnames that have zero
relevance to this case. Similarly, the second document lists
199 given games and stats for each of those names that have
zero relevance to this case. For this reason alone, taking
judicial notice of the full documents as Plaintiff requests
is improper.
Admittedly, the first document provides some insight
into how popular the surname “Cooper” was and the second
document provides some insight into how popular the given
name “Barbara” has been. 3 But the documents are still
irrelevant even if only those names are considered. This case
3 The relevancy of the time periods is also concerning.
The first document is data from before 2010. The reports in
question here are from 2022. The second document ranks the
100 most popular baby given names cumulatively over a one-
hundred-year span. The table itself notes a problem:
Please note that popular names listed below
are not necessarily consistently popular in every
year. For example, the name James, ranked as the
most popular male name over the last 100 years, has
been ranked as low as number 19. Similarly, the
most popular female name in the table, Mary, ranked
as low as 135.
(Doc. #154-2, p. 2.) Thus, while “Mary” is ranked number one
in this particular table, “Mary” would not have even appeared
on the table in other years and no method exists to
distinguish the data for relevant years. The same problem
occurs with the name “Barbara”.
does not concern just the name “Barbara” or just the name
“Cooper” alone—it concerns the full name “Barbara Cooper.”
Because the first document ranks the “Cooper” surname alone,
that means it accounts for not just Barbara Cooper but every
other Cooper as well. And there is no way to separate just
the subset of “Barbara Cooper”—the only name we care about—
from all the other Cooper’s. The same problem occurs for the
second report but with given names. Plaintiff’s request is
denied as to the first two documents.
The third document is also denied due to irrelevancy. It
is undisputed that the third document is an advisory opinion
titled “Fair Credit Reporting; Name-Only Matching Procedures”
published by the Consumer Financial Protection Bureau within
the Federal Register. And courts must take judicial notice of
the contents of the Federal Register if the contents are
relevant. Vallot v. Cent. Gulf Lines, Inc., 641 F.2d 347, 351
(5th Cir. 1981).4
Plaintiff argues the third document is relevant because
its content “discusses the reasonableness – or lack thereof
– of procedures that do not appropriately account for
4 The Eleventh Circuit “ha[s] adopted as binding
precedent all Fifth Circuit decisions issued before October
1, 1981, as well as all decisions issued after that date by
a Unit B panel of the former Fifth Circuit.” In re Forrest,
47 F.4th 1229, 1235 n.3 (11th Cir. 2022)(citing Stein v.
Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982)).
commonly-named consumers when matching information in
consumer reports to such consumers.” (Doc. #154, p. 4.)
Defendant counters that it is irrelevant because it focuses
on “name only” matching and because it just restates the law
on “reasonable procedures,” which the Court will do in its
jury instructions. (Doc. #156, p. 7.) The Court agrees with
Defendant.
The advisory opinion largely does two things: It
recounts the FCRA’s background/requirements and establishes
“that the practice of name-only matching in particular is far
from sufficient to meet” the FCRA’s requirement that agencies
follow reasonable procedures to assure maximum possible
accuracy. (Doc. #154-3, p. 11.) “Name-only matching”, the
document reads, “refers to matching information to the
particular consumer who is the subject of a consumer report
based solely on whether the consumer’s first and last names
are identical or similar to the first and last names
associated with the information, without verifying the match
using additional identifying information for the consumer.”
(Id.) Plaintiff has not shown the opinion would be relevant
here, where the parties have stipulated that the matching
information in common between the Barbara Cooper’s was not
just their name but also the same date of birth and at least
a partial zip code and social security number. (Doc. #116,
pp. 10, 12.)
Accordingly, it is hereby
ORDERED:
Plaintiff’s Barbara Cooper’s Request for Judicial Notice
(Doc. #154) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 12th
day of May 2025.
# — □ 2, _
AA) = Pe
JGHE E. STEELE
5 IOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record