No.

18-3195

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT
__________________________________________________________________

LEE MICHAEL PEDERSON,

Appellant,

v.

PHILLIP FROST, OPKO HEALTH, INC.,

BRIAN KELLER, COCRYSTAL PHARMA, INC.
AND DOES 1-50,

Appellees.
__________________________________________________________________

APPELLEES OPKO HEALTH, INC., PHILLIP FROST, AND

COCRYSTAL PHARMA, INC.’S
OPPOSITION TO APPELLANT’S MOTION TO SUPPLEMENT THE
RECORD
__________________________________________________________________

Appellant Lee Michael Pederson (“Mr. Pederson”) asks to supplement the

record by adding pleadings from separate proceedings in other jurisdictions, press

releases, and news article. See Mot. to Suppl. the Record filed on October 24,

2018 (“Mot. to Suppl.”). These documents are plainly not part of the record, are

irrelevant to the issue on appeal, and the circumstances do not warrant

supplementation. Rather, supplementation would prejudice Appellees OPKO

Health, Inc. (“OPKO”), Dr. Phillip Frost (“Dr. Frost”), and CoCrystal Pharma, Inc.

Appellate Case: 18-3195 Page: 1 Date Filed: 10/25/2018 Entry ID: 4719138
(“CoCrystal”) (collectively, “Appellees”). Therefore, the Court should deny

Mr. Pederson’s request to supplement the record.1

ARGUMENT

Mr. Pederson’s claims against Appellees were dismissed by the United States

District Court for the District of Minnesota (the “District Court”) for lack of

personal jurisdiction. Mr. Pederson has appealed that ruling. Whether or not there

is personal jurisdiction over Appellees is the sole and narrow issue on appeal.

Mr. Pederson now asks to supplement the record with various documents

including press releases and pleadings from other cases.2 Mot. to Suppl. at 6–7.

Notably, he does not allege that any of these documents bear on personal

1
Mr. Pederson initially filed a self-titled “Formal Request” to supplement the
appellate record. See Mot. to Take Judicial Notice filed on October 19, 2018.
Appellees filed an opposition to that request. See Resp. in Opp. filed on October
23, 2018. The next day, Mr. Pederson filed his Motion to Supplement the Record,
which is substantively similar to his Formal Request, requesting that the same
documents be added to the record, but adding some additional argument. Compare
Mot. to Take Judicial Notice with Mot. to Suppl. the Record. Appellees ask that
this brief serve as an opposition to all of Mr. Pederson’s attempts to supplement the
record to-date.
2
Mr. Pederson requests that he be allowed to supplement the record until oral
argument with unspecified additional documentation. Mot. to Suppl. at 7. At a
minimum, the Court should deny this request. Mr. Pederson should not be allowed
to simply supplement the record at any time with whatever documentation he
unilaterally decides is relevant to this appeal. Such supplementation before, and
certainly after, Appellees submit their briefing would be especially prejudicial and
improper. See Lowry v. Barnhart, 329 F.3d 1019, 1025–26 (9th Cir. 2003)
(striking the appellee’s supplemental document, which was added after appellant
filed his brief, and imposing monetary sanctions on the appellee).

Appellate Case: 18-3195 Page: 2 Date Filed: 10/25/2018 Entry ID: 4719138
jurisdiction. Instead, he argues that they are necessary to “refute” the “false

insinuations” he alleges Appellees made about the “credibility” of his claims

before the District Court.3 See id. at 1–4, 8–10. The Court should deny this

request for the following reasons.

First, the supplemental documents are irrelevant to the only issue on appeal

– personal jurisdiction. Nothing about pleadings from entirely separate cases or

press releases on unrelated issues informs or affects whether the District Court

could exercise personal jurisdiction over Appellees in this matter. Mr. Pederson

does not even mention personal jurisdiction in his Motion to Supplement. Because

the supplemental documents are irrelevant to personal jurisdiction, they will do

nothing to assist the Court in deciding the case and can only serve to needlessly

prejudice Appellees by clouding the issue and forcing Appellees to address

irrelevant matters.

Second, the supplemental documents are plainly not part of the record and

there is no legal justification for adding them. The appellate rules define the record

as: “(1) t
he 
ori
gina
l 
pape
rs 
and 
exh
ibi
ts
 fi
le
d i
n t
he 
dis
tr
ict
 co
urt
;(2) the transcript

of
 pr
oce
edi
ngs
, 
if
 an
y; 
and(3) a certified copy of the docket entries prepared by

3
Appellees deny that they “attacked” or “disparaged” Mr. Pederson at any time, or
that they “mischaracterized” his claims to the District Court. Citing binding
Supreme Court precedents and highlighting weaknesses in Mr. Pederson’s
pleadings was not improper and is certainly no basis to permit his requested
supplementation. See Mot. to Suppl. at 2–4.
3

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the district clerk.” Fed. R. App. P. 10(a). “An appellate court can properly

consider only the record and facts before the district court and thus only those

papers and exhibits filed in the district court can constitute the record on appeal.”

Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556, 559–60 (8th Cir.

2008) (emphasis added) (citation omitted) (striking appellee’s supplemental

a
ppe
ndi
x be
caus
e i
t c
ont
ai
ned 
doc
ume
nts
 no
t pr
ese
nte
d t
o t
he 
tri
al
 co
urt
);
 see

Berger v. Medina Cty. Ohio Bd. of Cty. Comm’rs, 295 F. App’x 42, 46 (6th Cir.

2008) (refusing to consider exhibits the appellant filed with the district court after

entry of final judgment). The documents Mr. Pederson hopes to add were not

presented to the District Court and they address events that arose after the briefing

and oral arguments in that forum. See Mot. to Suppl. at 4. Therefore, they are not,

and should not be, part of the record on appeal.

Mr. Pederson asks that the Court take judicial notice of his supplemental

documents, or exercise its inherent authority to supplement the record. Id. at 1, 6.

Neither basis for supplementation is warranted. Judicial notice may be taken of

facts that are “generally known within the . . . court’s jurisdiction,” or “can be

accurately and readily determined from sources whose accuracy cannot reasonably

be questioned.” Fed. R. Evid. 201(b). Mr. Pederson hopes to add press releases,

news articles, and pleadings from other court cases to the record. Mot. to Suppl. at

6–7. None of these documents contain facts “generally known” within this

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jurisdiction. Nor do these documents constitute sources that cannot “reasonably be

questioned” such that the “facts” they contain can be “accurately and readily

determined.” For instance, a complaint from a separate case is no source of facts

because it contains only unproven allegations. Similarly, the accuracy of press

releases and news reports can certainly be questioned, making them an improper

“source” for judicial notice.

Appellate courts may exercise their inherent authority to supplement the

record, but do so only in extraordinary or unusual cases. See Dakota Indus., Inc. v.

 
Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993);Lowry v. Barnhart, 329

 
F.3d 1019, 1024 (9th Cir. 2003);Ford v. Potter, 354 F. App’x 28, 31 (5th Cir.

2009). When deciding whether to supplement the record, appellate courts

consider: (1) if the supplemental materials will resolve or aid in resolving the issue

on appeal and (2) whether equitable and fairness considerations favor

supplementation. See Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 n.4 (11th

 
Cir. 2003);  
Dakota Indus., 988 F.2d at 63;Ross v. Kemp, 785 F.2d 1467, 1475 (11th

Cir. 1986). This is not an extraordinary case that merits supplementation. As

described above, the supplemental documents are irrelevant to the issue on appeal

– personal jurisdiction. They will not assist the Court in answering this question.4

4
It should be noted that Mr. Pederson previously attempted to improperly
supplement the record before the District Court. See Dist. Crt. Dkt. 74 at 2, 17 n.6.
Magistrate Judge Thorson denied these attempts “because the information that
5

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Instead, they will muddy the waters and unfairly prejudice Appellees by forcing

them to address irrelevant issues and allegations. Thus, equity and fairness counsel

against allowing supplementation and the Court should deny Mr. Pederson’s

Motion.

CONCLUSION

For the reasons stated herein, Appellees OPKO, Dr. Frost, and CoCrystal

respectfully request that the Court deny Appellant Pederson’s Motion to

Supplement the Record.

Dated: October 25, 2018 Respectfully submitted,

/s/ Joseph T. Dixon III

Joseph T. Dixon III (MN #0283903)
Alexander D. Chiquoine (MN #0396420)
Fredrikson & Byron, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402-1425
Telephone: 612.492.7000
Facsimile: 612.492.7077
jdixon@fredlaw.com
achiquoine@fredlaw.com

Attorneys for Appellees Phillip Frost, OPKO

Health, Inc., and CoCrystal Pharma, Inc.

and

Plaintiff requested to supplement the record with . . . would not change [her ruling
that there was no personal jurisdiction] . . . .” See id. at 17 n.6.
6

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 Brian P. Miller
Samantha J. Kavanaugh
AKERMAN LLP
98 Southeast Seventh Street, Suite 1100
Miami, FL 33131
Telephone: 305.374.5600
Facsimile: 305.374.5095
brian.miller@akerman.com
samantha.kavanaugh@akerman.com

Attorneys for Appellees Phillip Frost and

OPKO Health, Inc.

and

Michael Sherman (admitted pro hac vice)

Dan Rozansky (admitted pro hac vice)
STUBBS ALDERTON & MARKILES,
LLP
15260 Ventura Blvd., 20th Floor
Sherman Oaks, CA 91403
Telephone: 818.444.4500
Facsimile: 818.444.4520
drozansky@stubbsalderton.com
msherman@stubbsalderton.com

Attorneys for Defendant CoCrystal Pharma,

Inc.

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 CERTIFICATE OF COMPLIANCE

I hereby certify that this document complies with the word limit of Fed. R.

App. P. 27(d)(2)(A) because, excluding the parts of the document exempted by

Fed. R. App. P 32(f), this document contains 1,251 words. I further certify that

this document complies with the typeface requirements of Fed. R. App. P 32(a)(5)

and the type-style requirements of Fed. R. App. P 32(a)(6) because this document

was prepared in a proportionally-spaced typeface using Microsoft Word 2010 in

Times New Roman, font size 14.

Dated: October 25, 2018 Respectfully submitted,

/s/ Joseph T. Dixon III

Joseph T. Dixon III (MN #0283903)
Alexander D. Chiquoine (MN #0396420)
Fredrikson & Byron, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402-1425
Telephone: 612.492.7000
Facsimile: 612.492.7077
jdixon@fredlaw.com
achiquoine@fredlaw.com

Attorneys for Appellees Phillip Frost, OPKO

Health, Inc., and CoCrystal Pharma, Inc.

Appellate Case: 18-3195 Page: 8 Date Filed: 10/25/2018 Entry ID: 4719138
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 25, 2018, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals for

the Eighth Circuit by using the CM/ECF system and that service upon Appellant

Pederson will be accomplished by the CM/ECF system. However, I am presently

unaware of who represents Appellee Keller and whether they are registered on

CM/ECF in this matter.

Dated: October 25, 2018 Respectfully submitted,

/s/ Joseph T. Dixon III

Joseph T. Dixon III (MN #0283903)
Alexander D. Chiquoine (MN #0396420)
Fredrikson & Byron, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402-1425
Telephone: 612.492.7000
Facsimile: 612.492.7077
jdixon@fredlaw.com
achiquoine@fredlaw.com

Attorneys for Appellees Phillip Frost, OPKO

Health, Inc., and CoCrystal Pharma, Inc.
65104273.2

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