BEAN MAINE LOBSTER INC et al v. MONTEREY BAY AQUARIUM FOUNDATION

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BEAN MAINE LOBSTER, INC., 	)
et al., 	)
)
Plaintiffs, 	)
)
v. 	) 	No. 2:23-cv-00129-JAW
)
MONTEREY BAY AQUARIUM 	)
FOUNDATION, 	)
)
Defendant. 	)
ORDER ON MOTIONS TO SUPPLEMENT RECORD AND REQUESTS FOR
JUDICIAL NOTICE
In light of new information, the parties in a defamation lawsuit each move to
supplement the record and for the court to take judicial notice of government records
in its review of a pending motion to dismiss. The court grants both parties’ respective
motions to supplement and requests for judicial notice. 	The court will address how
this new information affects disposition of the pending motion to dismiss in its order
on that motion.
I. 	BACKGROUND
On 	March 	14, 	2023, 	Bean 	Maine 	Lobster, 	Inc., 	Maine 	Lobstermen’s
Association, Inc.; Maine Coast Fishermen’s Association, Inc.; Maine Lobster and
Processing, LLC d/b/a Atwood Lobster, LLC; and Bug Catcher, Inc. (collectively, the
Plaintiffs) filed a civil action against the Monterey Bay Aquarium Foundation
(MBAF). Compl. (ECF No. 1). The complaint, which has not been amended, contains
one count for defamation stemming from MBAF’s 2022 assignment of a “red” rating
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to Maine-caught lobster based on “significant risks of entanglement” to North
Atlantic right whales posed by lobster fishing gear. Compl. ¶ 8. The Plaintiffs decry
MBAF’s red rating as false and argue the scientific data shows no observed right
whale entanglements in Maine lobster gear since 2004. Id. ¶ 9.
On May 22, 2023, MBAF filed a motion seeking, in the alternative: 1) dismissal
for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2);
2) transfer of venue to the Northern District of California pursuant to 28 U.S.C.
§ 1404(a); 3) dismissal pursuant to Maine’s anti-SLAPP statute, 14 M.R.S. § 556; or
4) dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Def. Monterey Bay
Aquarium Found.’s Mot. to Dismiss for Lack of Pers. Jurisdiction (Fed. R. Civ. P.
12(b)(2)) or, in the Alt., Transfer Venue Due to Forum Non Conveniens (28 U.S.C.
1404(a)), or Dismiss Under Maine’s Anti-SLAPP Statute (14 M.R.S. § 556), or Dismiss
for Failure to State a Claim Upon Which Relief Can Be Granted (Fed. R. Civ. P.
12(b)(6)) (ECF No. 19) (Def.’s Mot. to Dismiss). 	On July 24, 2023, the Plaintiffs
opposed MBAF’s motion. Pls.’ Mem. in Opp’n to Def.’s Mot. to Dismiss, or in the Alt.
to Change Venue (ECF No. 24) (Pls.’ Dismiss Opp’n). 	On August 24, 2023, MBAF
replied. Def. Monterey Bay Aquarium Found.’s Reply to Pls.’ Opp’n to Mot. to Dismiss
for Lack of Pers. Jurisdiction (Fed. R. Civ. P. 12(b)(2)) or, in the Alt., Transfer Venue
Due to Forum Non Conveniens (28 U.S.C. 1404(a)), or Dismiss Under Maine’s Anti-
SLAPP Statute (14 M.R.S. § 556), or Dismiss for Failure to State a Claim Upon Which
Relief Can Be Granted (Fed. R. Civ. P. (12(b)(6)) (ECF No. 38) (Def.’s Dismiss Reply).
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After taking the motion to dismiss under advisement but before reaching a
disposition, the Court became aware that officials with the National Oceanographic
and Atmospheric Administration (NOAA) had conducted a necropsy of a North
Atlantic right whale found deceased in January 2024 on a beach in Massachusetts
and, in October 2024, attributed its death to chronic entanglement in Maine lobster
gear. See, e.g., Eric Russell, Officials confirm 1st case of Maine lobster gear causing
the death of endangered right whale, P ORTLAND P RESS HERALD , Oct. 2, 2024. 	The
Court immediately convened a telephonic conference with the parties on October 8,
2024 to discuss how they wished to proceed in light of the new information. 	Min.
Entry (ECF No. 45).
On October 11, 2024, MBAF moved to supplement the record on its motion to
dismiss and requested that the Court take judicial notice of several NOAA and other
government webpages documenting right whale entanglements. 	Def. Monterey Bay
Aquarium Found.’s Mot. to Suppl. Rec. and Req. for Jud. Notice in Connection with
Mot. to Dismiss (ECF No. 46) (Def.’s Mot. to Suppl.). 	Then, on October 28, 2024,
MBAF filed a supplemental brief in support of its motion to dismiss, explaining its
position on how the Court should consider the new information in the context of its
motion to dismiss. 	Def. Monterey Bay Aquarium Found.’s Supp. Brief in Support of
Mot. to Dismiss (ECF No. 49) (Def.’s Suppl. Brief).
Also on October 28, 2024, the Plaintiffs filed their own motion to supplement
the record and request for judicial notice, reiterating their opposition to the motion
to dismiss in light of the new information and asking the Court to take judicial notice
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of an additional NOAA publication “to add context to the NOAA website excerpts that
[MBAF] has submitted.” 	Pls.’ Mot to Suppl. the Rec. and Req. for Jud. Notice at 1
(ECF No. 50) (Pls.’ Mot. to Suppl.). 	The Plaintiffs also submitted their own brief
articulating their position on the relevance of the new information to the Court’s
disposition of MBAF’s motion to dismiss. 	Pls.’ Opening Br. Addressing Materials
Attached to Def.’s Mot. to Suppl. Rec., and in Further Opp’n to Mot. to Dismiss (ECF
No. 52) (Pls.’ Suppl. Br.).
On November 12, 2024, the Plaintiffs responded to MBAF’s supplemental brief,
arguing the Court should reject the motion to dismiss notwithstanding the new
information concerning the January 2024 right whale death. 	Pls.’ Resp. to Def.’s
Suppl. Br., and in Further Opp’n to Mot. to Dismiss (ECF No. 53) (Pls.’ Suppl. Resp.).
That same day, MBAF filed its own response to the Plaintiffs’ brief, reiterating its
request that the Court dismiss the complaint based on both the original record and
the new information. 	Def. Monterey Bay Aquarium Found.’s Reply Br. Re: Suppl.
Briefing in Support of Mot. to Dismiss (ECF No. 54) (Def.’s Suppl. Resp.).
II. 	THE PARTIES’ POSITIONS
The motion sequence and briefing on supplementing the record encompasses
two discrete issues: 1) whether the Court should permit supplementation of the
record, and 2) if admitted, how the supplemental materials should affect disposition
of the motion to dismiss. 	The parties spend a substantial portion of their filings
discussing the second question of substantive effect. 	However, the Court limits the
scope of its review in this order to the question presently before it: whether the Court
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should permit supplementation of the record for the purposes of the motion to
dismiss.
A. 	MBAF’s Position on Supplementing the Record
MBAF moves to supplement the record with information “that the cause of
death of a North Atlantic right whale found deceased on a beach in Massachusetts in
January 2024 was entanglement in fishing gear used by Maine lobster fishermen.”
Def.’s Mot. to Suppl. at 2. The Defendant asks the Court to take judicial notice of five
webpages issued by government entities, in each case asserting that judicial notice of
an official government website is proper under First Circuit precedent. 	Id. at 2-6
(citing Gent v. CUNA Mut. Ins. Soc’y, 611 F.3d 79, 84 n.5 (1st Cir. 2010)). 	In a
separate filing, MBAF avers that, pursuant to Federal Rule of Evidence 201, the
Court may consider extrinsic evidence subject to judicial notice in the context of
reviewing a motion to dismiss for failure to state a claim. 	Def.’s Suppl. Resp. at 3
(citing Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013)).
MBAF requests judicial recognition of five government webpages, which it
attaches as exhibits to its motion to supplement, as follows:
1) 	the contents of the NOAA North Atlantic Right Whale Updates
webpage, 	https://www.fisheries.noaa.gov/national/endangered-species-
conservation/north-atlantic-right-whale-updates#right-whale-5120-
found-dead-near-marthas-vineyard;
2) 	the contents of the version of the NOAA North Atlantic Right
Whale Updates webpage that was in existence on March 13, 2023, the
day before Plaintiffs filed their complaint in this action, which has been
obtained from the internet archive Wayback Machine;
3) 	the contents of the NOAA 2017-2024 North Atlantic Right Whale
Unusual 	Mortality 	Event 	webpage,
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https://www.fisheries.noaa.gov/national/marine-life-distress/2017-
2024-north-atlantic-right-whale-unusual-mortality-event;
4) 	the contents of the version of the NOAA 2017-2023 North Atlantic
Right Whale Unusual Mortality Event webpage that was in existence on
March 13, 2023, the day before Plaintiffs filed their complaint in this
action, which has been obtained from the internet archive Wayback
Machine;
5) 	the contents of the Maine Department of Marine Resources Whale
Rules 	webpage, 	https://www.maine.gov/dmr/science/species-
information/maine-lobster/whale-rules.
Def.’s Mot. to Suppl. at 2-6. Regarding the versions of government websites captured
through the Wayback Machine software, the Defendant submits that other courts
have accepted such records as judicially noticeable. 	Id. at 3-4 (citing New York v.
Meta Platforms, Inc., 66 F.4th 288, 303 (D.C. Cir. 2023) (“The contents of webpages
available through the Wayback Machine constitute facts that can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned”)).
MBAF adds that Plaintiffs cited to the NOAA North Atlantic Right Whale
Unusual Mortality Event webpage in their complaint in support of their allegation
that official records show “not a single record of right whale entanglement with Maine
fishing gear resulting in serious injury or death.” 	Id. at 5 (quoting Compl. ¶ 31 &
n.17) (citation amended). 	The Plaintiffs’ incorporation, MBAF says, provides a
separate basis for judicial notice of this webpage. Id. (citing Giragosian v. Ryan, 547
F.3d 59, 65 (1st Cir. 2008) (on a motion to dismiss, the court may consider “documents
incorporated by reference in [the complaint], matters of public record, and other
matters susceptible to judicial notice”) (alteration made by Defendant)).
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B. 	The Plaintiffs’ Position on Supplementing the Record
In addition to maintaining their opposition to the motion to dismiss, the
Plaintiffs 	request 	the 	Court 	take 	judicial 	notice 	of 	additional 	documentation
published by NOAA as necessary and relevant context to the new information
submitted by MBAF. 	Pls.’ Mot. to Suppl. at 1. 	Specifically, the Plaintiffs move to
admit a public message from NOAA Fisheries Leadership published as of April 21,
2022, as obtained through the Wayback Machine software, in which the NOAA
Regional Administrator for the Greater Atlantic Region Michael Pentony stated:
Most participants in the Northeast lobster and Jonah crab fishery are
nearly 	finished 	with 	the 	needed 	gear 	modifications. 	However,
unanticipated supply chain delays are preventing some of the
fleet from fully coming into compliance. I want to assure fishermen
who are making good faith efforts to comply with these new measures
but are not able to procure compliant gear that we understand the
difficulty of their situation. We are working closely with our state
and federal enforcement partners to implement a graduated
enforcement 	effort 	that 	will 	focus 	on 	compliance 	assistance
rather 	than 	civil 	penalties 	until 	we 	have 	determined 	that
localized supply chain issues have been sufficiently resolved . . ..
NOAA 	Fisheries 	is 	closely 	monitoring 	the 	challenges 	that 	some
Northeast lobster and Jonah crab trap/pot fishermen are facing in their
effort to comply with weak rope measures.
Pls.’ Suppl. Br. at 6 (citing Decl. of Clifford Ruprecht (ECF No. 51), Attach. 1,
Compliance Assistance in Place to Support Fishermen Changing Gear to Protect Right
Whales 	at 	2 	(ECF 	No. 	51-1) 	(NOAA 	Compliance 	Letter)) 	(emphasis 	added 	by
Plaintiffs). 	Similarly to MBAF, the Plaintiffs aver that other federal courts have
accepted the contents of webpages available through the Wayback Machine, Pls.’ Mot.
to Suppl. at 2 (citing Walsh v. Teltech Sys., Inc., No. CV 13-13064-RWZ, 2015 U.S.
Dist. LEXIS 191349, at *3 n.2 (D. Mass. July 30, 2015), aff’d, 821 F.3d 155 (1st Cir.
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2016)), and further that the contents of official government websites are judicially
noticeable. Id. (citing, e.g., Gent, 611 F.3d at 84 n.5).
Plaintiffs aver the Court retains the discretion to deny MBAF’s request to
consider extrinsic evidence on the pending motion to dismiss. Pls.’ Suppl. Brief at 7
(citing Freeman, 714 F.3d at 36). 	Further, while Plaintiffs concede that the Court
may take judicial notice of the contents of a government website, they maintain that
taking such notice at the motion to dismiss stage does not extend to the purpose of
establishing the truth of its contents. 	Id. (citing, e.g., Torrens v. Lockheed Martin
Servs. Grp., Inc., 396 F.3d 468, 473 (1st Cir. 2005)).
III. 	DISCUSSION
As presented by the parties, there are two questions before the Court in this
order. 	First, there is a threshold question of whether to permit supplementation of
the record with the documents submitted by the parties. 	Second, if permitted to
supplement, 	the 	parties 	specifically 	present 	the 	supplemental 	information 	for
consideration on the pending motion to dismiss; thus, there is an additional question
of whether the Court may consider judicially noticed extrinsic evidence in its review
of the motion to dismiss.
A. 	Supplementing the Record
Beginning with the first question, the Court readily allows, based on applicable
authorities and apparent agreement of the parties, the supplementation of the record.
Rule 15 of the Federal Rules of Civil Procedure provides: “[o]n motion and
reasonable 	notice, 	the 	court 	may, 	on 	just 	terms, 	permit 	a 	party 	to 	serve 	a
supplemental 	pleading 	setting 	out 	any 	transaction, 	occurrence, 	or 	event 	that
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happened after the date of the pleading to be supplemented.” 	F ED. R. CIV. P. 15(d).
The First Circuit has described the rule as “help[ing] courts and litigants to avoid
pointless formality,” explaining that “although causes of action accruing after the
institution of a lawsuit usually can be filed as separate actions, supplementation
under Rule 15(d) is often a more efficient mechanism for litigating such claims.”
United States ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 4 (1st Cir. 2015) (citing
Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1186-87 (10th Cir.
2015)). 	For that reason, the First Circuit encourages the supplementation of
pleadings pursuant to Rule 15 “when doing so will promote the economic and speedy
disposition of the entire controversy between the parties, will not cause undue delay
or trial inconvenience, and will not prejudice the rights of any of the other parties to
the action.” 	Id. (quoting 6A CHARLES ALAN WRIGHT ET AL ., F EDERAL P RACTICE AND
P ROCEDURE § 1504, at 258-59 (3d ed. 2010)).
Neither party raises an apparent objection to supplementing the record with
the new information. However, requesting leave to supplement is not a mere rubber-
stamp exercise and the Court thus considers the merits of the parties’ arguments in
favor of supplementing. 	Motions to supplement “cannot be used to introduce a
separate, distinct and new cause of action.” 	Benner v. Wells Fargo Bank, N.A., No.
2:16-cv-00467-NT, 2018 U.S. Dist. LEXIS 52716, at *42 (D. Me. Mar. 29, 2018)
(quoting Lath v. Manchester Police Dep’t, No. 16-CV-534-LM, 2017 U.S. Dist. LEXIS
68205, at *5 (D.N.H. May 4, 2017)). Further, “courts disfavor motions ‘whose timing
prejudices the opposing party by requiring a re-opening of discovery with additional
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costs, a significant postponement of the trial, and a likely major alteration in trial
tactics and strategy.’” Id. (quoting Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st
Cir. 2004)).
After review, the Court concludes that allowing the parties to supplement the
record with the new information is consistent with the purpose of Rule 15. 	The
parties do not dispute that the NOAA necropsy attributing the death of the right
whale to Maine lobster fishing gear occurred after the complaint was filed in this
case. Compare Compl. (filed on March 14, 2023), with Def.’s Suppl. Brief (noting the
NOAA necropsy was published on October 2, 2024). 	Allowing the parties to
supplement the record would also “promote the economic and speedy disposition of
the entire controversy,” PharMerica Corp., 809 F.3d at 4, by permitting adjudication
on a complete and up-to-date record in the first instance. One can easily imagine the
inefficiency caused by the Court issuing a ruling based on an incomplete and outdated
record, only for the disappointed party to move for reconsideration based on highly
relevant facts not on the record at the time of pleading. 	Further, neither of the
restrictions on supplemental pleadings applies to the present motions to supplement.
Neither party seeks to introduce a new cause of action and, since trial has not yet
been scheduled, no postponement of trial, significant or otherwise, would result from
allowing the parties to supplement.
Thus, the Court grants the Defendant’s motion to supplement the record with
the five government webpages. 	Def.’s Mot. to Suppl. 	To ensure the record is
supplemented “on just terms” in accordance with Rule 15, the Court also grants the
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Plaintiffs’ motion to supplement the record with the additional statement by the
NOAA Regional Administrator for the Greater Atlantic Region. Pls.’ Mot. to Suppl.
B. 	Considering Judicially Noticed Evidence on Motion to Dismiss
The Court now turns to the second question implicated by the parties’ filings:
whether it may consider the judicially noticed documents as extrinsic evidence in the
context of the pending motion to dismiss.
The parties’ arguments for judicial notice begin in lockstep: first, a court may
take judicial notice of the content of a government website; and second, archived
versions of government webpages obtained through Wayback Machine software are
judicially noticeable. 	See Def.’s Mot. to Suppl. at 2-6; Pls.’ Mot. to Suppl. at 2.
Plaintiffs, however, continue to submit that additional guardrails apply to the Court’s
consideration of judicially noticeable materials at the motion to dismiss stage.
Specifically, they argue the Court has discretion whether to consider such materials,
and judicial recognition of extrinsic evidence at the motion to dismiss stage is limited
to the record’s existence, not the truth of its contents. Pls.’ Mot. to Suppl. at 7 (citing
Freeman, 714 F.3d at 36; Torrens, 396 F.3d at 473).
The Court agrees with the parties’ shared assertions regarding the judicial
noticeability of government webpages and use of the Wayback Machine software.
Pursuant to Federal Rule of Evidence 201(b), “a 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.” 	First Circuit caselaw is
clear that Rule 201 encompasses the content of government webpages. See Gent, 611
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F.3d at 84 n.5 (“tak[ing] judicial notice of the relevant facts provided on the website,
which are ‘not subject to reasonable dispute’”); In re Fin. Oversight & Mgmt. Bd., 60
F.4th 9, 13 n.3 (1st Cir. 2023) (taking judicial notice of financial plan published on
the Financial Oversight and Management Board for Puerto Rico’s public website).
Further, the First Circuit affirmed a case where the district court used the
Wayback Machine software to capture an undisputedly authentic version of historic
webpages. 	See Walsh, 2015 U.S. Dist. LEXIS 191349, at *3 n.2, aff’d, 821 F.3d 155
(the district court took judicial notice of the content of certain archived Wayback
Machine webpages “as facts that can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned”); see also Dubliner, Inc. v.
E. Coast Tavern Grp., Inc., 706 F. Supp. 3d 181, 194 (D. Mass. 2023) (“Here, the
authenticity of the Wayback Machine menu captures submitted by Dubliner is not in
dispute, and the captures are dispositive”); Pohl v. MH Sub I, LLC, 332 F.R.D. 713,
716 (N.D. Fl. 2019) (collecting cases in which federal courts took judicial notice of
webpages available through the Wayback Machine).
The Plaintiffs correctly point out that the language of Rule 201(b) uses the
permissive 	“may,” 	rather 	than 	the 	obligatory 	“shall”; 	thus, 	the 	Court 	retains
discretion over whether to take judicial notice of extrinsic evidence. 	However,
Plaintiffs give no basis for why the Court should exercise its discretion to decline to
take judicial notice of the requested materials in the present case. 	As previously
discussed, a complete and current record aids the Court’s efficient disposition of the
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entire dispute, and thus the Court will take judicial notice of the government
webpages for the purpose of considering the motion to dismiss.
Finally, 	though, 	Plaintiffs 	submit 	that 	judicially 	noticed 	government
documents cannot be considered for the truth of their contents. 	In Torrens v.
Lockheed Martin Services Group, Inc., 396 F.3d 468, the First Circuit noted it was
“free . . . to take judicial notice of the existence of government records,” but that the
government record “[was] relevant not for the truth of anything asserted in it but
simply as a legally significant event, like a treaty or a will.” 	Id. at 473. 	Applying
Torrens, the District of Massachusetts recently wrote: “[i]t is only appropriate,
however, to take judicial notice of government records for the fact that they exist or
contain certain information and not for the truth of the facts asserted within them.”
Pietrantoni v. Corcept Therapeutics Inc., 640 F. Supp. 3d 197, 205 (D. Mass. 2022)
(citations omitted). 	The Pietrantoni Court thus granted the defendant’s motion for
judicial notice of publicly available government records “for the fact that they exist,
the information they comprise, and their legal effect, but not the truth of their
contents.” Id.
Consistent with the precedent within the First Circuit, the Court will not
consider the judicially noticed government records for their truth. 	However, the
Court will apply this standard of review equally to both the Defendant’s supplemental
government webpages and the Plaintiff’s supplemental statement by the NOAA
Regional Administrator for the Greater Atlantic Region.
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As a final note, the Court reiterates that by allowing the parties to supplement
the record and granting their requests to take judicial notice, the Court takes no
position at this time on the substantive effect of the new information on the
disposition of the pending motion to dismiss.
IV. 	CONCLUSION
The Court GRANTS Defendant Monterey Bay Aquarium Foundation’s Motion
to Supplement Record and Request for Judicial Notice in Connection with Motion to
Dismiss (ECF No. 46).
The Court also GRANTS the Plaintiffs’ Motion to Supplement the Record and
Request for Judicial Notice (ECF No. 50)
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 5th day of December, 2024
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