Opinion
CASE NO. 2:08-cv-005-MEF.
October 19, 2009
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Motion to Strike Plaintiff's Summary Judgment Exhibits (Doc. # 31) filed on April 7, 2009, by Defendants Neptune Technology Group, Inc. and Roper Industries, Inc. The Court has carefully considered the arguments offered in support of and in opposition to this motion as well as the applicable legal authorities. For the reasons that follow, the Court finds that the motion is due to be DENIED.
BACKGROUND
Plaintiff sued Defendants challenging the decision to terminate her employment and the treatment she received prior to the termination of her employment. Plaintiff asserts a variety of types of discrimination or violations of various laws. Defendants filed a motion for summary judgment on all claims. Plaintiff filed a brief in opposition to that motion along with a number of exhibits. Defendants filed the instant motion to strike challenging some of the evidentiary submissions on which Plaintiff relies for her opposition to their motion for summary judgment. Defendants specifically object to the following exhibits that Plaintiff filed as part of her opposition to their motion for summary judgment on the grounds that the documents have not been properly authenticated: (1) the document setting forth the decision by the State of Alabama Department of Industrial Relations regarding Plaintiff's claim for unemployment compensation; (2) a summary of Plaintiff's medical records which contains statements made by or to the Plaintiff's doctors; (3) Plaintiff's affidavit and a handwritten time line of events which Defendants contend contain hearsay; and (4) a letter from Dr. Douglas Owens to Plaintiff. In addition to their objections relating to a lack of proper authentication, Defendants also challenge certain portions of Plaintiff's deposition which Defendants contend constitute inadmissible hearsay.
DISCUSSION
Defendants' motion is styled as a motion to strike. Rule 12(f) of the Federal Rules of Civil Procedure provides grounds for motions to strike; however, that rule provides the proper bases for striking certain improper material in pleadings, not in affidavits. See, e.g., Norman v. So. Guar. Ins. Co., 191 F. Supp. 2d 1321, 1328 (M.D. Ala. 2002). Consequently, it cannot be that Defendants' motion to strike is properly made pursuant to Rule 12(f).
Given that the deposition testimony Defendants have challenged is submitted in opposition to a motion for summary judgment, it must comply with the requirements of Rule 56(e) of the Federal Rules of Civil Procedure. Rule 56(e) makes it plain that affidavits submitted in support of or opposition to a motion for summary judgment
shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated therein.
Fed.R.Civ.P. 56(e) (emphasis added). It is clear that the Federal Rules of Civil Procedure also provide for the submission of deposition testimony in support of or in opposition to motions for summary judgment. Such testimony is also required to be made on personal knowledge from a witness competent to testify on the matters stated and to set forth facts as would be admissible in evidence. See, e.g., Rowell v. Bellsouth Corp., 433 F.3d 794, 799-800 (11th Cir. 2005) (affirming a decision granting an employer's motion for summary judgment and explaining that deposition testimony from plaintiff could only be considered if it could "be reduced to an admissible form" at trial); Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999) (holding that the rules applicable to affidavits set forth in Rule 56(e) are also applicable to testimony given on deposition); Randle v. LaSalle Telecomms., 876 F. 2d 563, 570 n. 4 (7th Cir. 1989); Home Oil Co. v. Sam's East, Inc., 252 F. Supp. 1302, 1308 (M.D. Ala. 2003). The requirements of Rule 56 make it plain that affidavits or depositions which set forth conclusory arguments rather than statements of fact based on personal knowledge are improper. See, e.g., Thomas v. Ala. Council on Human Relations, Inc., 248 F. Supp. 2d 1105, 1112 (M.D. Ala. 2003); Story v. Sunshine Foliage World, Inc., 120 F. Supp. 2d 1027, 1030 (M.D. Fla. 2000). Accord, Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000). Testimony which fails to meet the standards set forth in Rule 56(e) may be subject to a motion to strike. See, e.g., Thomas, 248 F. Supp. 2d at 1112; Givhan v. Electronic Eng'rs, Inc., 4 F. Supp. 2d 1331, 1334 (M.D. Ala. 1998). However, the court need not strike the entire affidavit or deposition, rather it may strike or disregard the improper portions and consider the remainder of the testimony. Id. at p. 1334 n. 2.
It is true that a plaintiff may not rely upon deposition testimony that constitutes inadmissible hearsay, at least where that hearsay will not be reducible to admissible form at trial. See, e.g., Rowell, 433 F.3d at 799-800. However, the Eleventh Circuit has repeatedly recognized that inadmissible evidence may be used to oppose summary judgment so long as there is no indication that the facts could not be reduced to admissible evidence at trial. See, e.g., Macuba, 193 F.3d at 1322-24 (Even though a document, deponent, or affiant references hearsay information, that information may be considered on summary judgment if it would be admissible at trial under an exception to the hearsay rule or as non-hearsay.); McMillian v. Johnson, 88 F.3d 1573, 1584-85 (11th Cir. 1996); Church of Scientology Flag Serv. Org. v. City of Clearwater, 2 F.3d 1514, 1530-31 n. 11 (11th Cir. 1993); Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1015 (11th Cir. 1987);
Hearsay is defined in the Federal Rules of Evidence as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Of course, there are various exceptions to the rule prohibiting the admission of hearsay. See Fed.R.Evid. 803, 804 807.
Here Defendants challenge certain of the materials before the Court as hearsay, but they do not contend that the information is not reducible to admissible evidence. Indeed, Defendants do not even attempt to address whether the information currently in the form of hearsay is reducible to admissible evidence. There is nothing to indicate that Beverly Johnson and her sister could not be called to testify at trial regarding the alleged statements of Conklin to them (which statements themselves seem likely to either not be hearsay or to be within an exception to the hearsay rule). Because Defendants have not made that showing, the applicable law requires the Court to find that the evidence may be considered in opposition to summary judgment.
All of Defendants' other challenges in the motion to strike relate to Plaintiff's reliance on documents that have not been properly authenticated in her opposition to their motion for summary judgment. This Court has previously held that generally speaking documents must be properly authenticated for them to be considered at the summary judgment stage. See Bozeman v. Orum, 199 F. Supp. 2d 1217, 1222 (M.D. Ala. 2002) (Thompson, J.). An important exception to this rule exists because "unauthenticated documents may be considered when no objection is made or when it is apparent that those documents can be reduced to admissible, authenticated form at trial." Id. Accord United States Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F. Supp. 1322 (S.D. Ala. 2003) (following the rule as articulated by Bozeman). While Defendants have objected to the Plaintiff's reliance on unauthenticated documents, it is apparent to this Court that the challenged documents can be reduced to admissible, authenticated form at trial. For this reason, the Court finds that the Defendants' motion to strike those exhibits to be without merit.
The Court is aware that other courts have held that unauthenticated evidence may not be considered at the summary judgment stage and that some of those courts are within the Eleventh Circuit. This Court finds, however, that Bozeman is more consistent with the approach of the Eleventh Circuit in analogous situations, such as the use of hearsay to oppose summary judgment. For this reason, the Court will follow the rule as articulated in Bozeman.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Motion to Strike Plaintiff's Summary Judgment Exhibits (Doc. # 31) is DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).