McCall, et al. v. Houston County, et al.

Filing 180

MEMORANDUM OPINION AND ORDER DENYING the 112 , 113 , 114 , 115 , 116 , and 117 Motions to strike affidavits, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 6/30/14. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

TRACEY McCALL, as
)
administratrix of the
)
estate of Jonathan McCall, )
)
Plaintiff,
)
)
v.
)
)
HOUSTON COUNTY, et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
1:11cv559-MHT
(WO)

OPINION AND ORDER
Plaintiff Tracey McCall, on behalf of the estate of
decedent Jonathan McCall, names Houston County, Alabama
and various personnel of the Houston County Jail as
defendants

in

this

action.

She

alleges

that

the

defendants’ conduct caused the death of her brother in
violation of the Fourteenth Amendment and the State of
Alabama’s
§ 6-5-410.

wrongful

death

statute,

1975

Ala.

Code

She also alleges violations of Title II of

the Americans with Disabilities Act, 42 U.S.C. § 12131 et
seq., and § 504 of the Rehabilitation Act, 29 U.S.C.
§ 794.

Jurisdiction is proper under 28 U.S.C. §§ 1331

(federal

question),

1343

(civil

(supplemental jurisdiction).

rights),

and

1367

This cause is before the

court on McCall’s motions to strike portions of various
affidavits filed by the defendants.

The motions will be

denied.
The Federal Rules of Civil Procedure restrict the use
of a motion to strike to the pleadings.

A motion to

strike is not an appropriate vehicle for a general attack
on

another

litigant’s

affidavits

and

evidence.

See

Lowery v. Hoffman, 188 F.R.D. 651, 653 (M.D. Ala. 1999)
(Thompson, J.); Fed.R.Civ.P. 12(f); see also 2 James Wm.
Moore, et al., Moore's Federal Practice § 12.37[2] (3d
ed. 1999) (“Only material included in a ‘pleading’ may be
subject of a motion to strike.... Motions, briefs or
memoranda, objections, or affidavits may not be attacked
by the motion to strike.”).
Nevertheless,
summary-judgment

in
motions,

resolving
the

court

the
will

pending
implicitly

consider the motions to strike as, instead, notices of

2

objections to the evidence described.

Norman v. Southern

Guar. Ins. Co., 191 F.Supp.2d 1321, 1328 (M.D. Ala. 2002)
(Thompson, J.); Anderson v. Radisson Hotel Corp., 834
F.Supp. 1364, 1368 n. 1 (S.D. Ga. 1993) (Bowen, J.).
Insofar

as

a

ruling

regarding

the

admissibility

of

evidence is necessary at this stage, see Rowell v..
BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005), the
court will address these objections in its ruling on
summary judgment.
Similarly, the court is aware that it may, under
certain

circumstances,

disregard

an

affidavit

that

contradicts prior unambiguous deposition testimony.

See

Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir.
2008); Clay v. Equifax, Inc., 762 F.2d 952, 960 n.5 (11th
Cir. 1985); Van T. Junkins & Assocs., Inc. v. U.S.
Indus.,

Inc.,

736

F.2d

656,

657

(11th

Cir.

1984).

Insofar as McCall’s arguments on this point must be
resolved at this stage, the court will likewise address
them in its ruling on summary judgment.

3

***
Accordingly, it is ORDERED that the motions to strike
affidavits (Doc. Nos. 112, 113, 114, 115, 116, and 117)
filed by plaintiff Tracey McCall are denied.
DONE, this the 30th day of June, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE