Flavor House Products, Inc. et al v. International Nut Alliance, LLC

Filing 36

ORDER: Pursuant to Federal Rule of Civil Procedure 56(e)(1), the court will give the Plaintiffs until Monday May 7, 2012 to cure the defects in the affidavits re 25 Response in Opposition to Motion. Signed by Honorable Judge W. Harold Albritton, III on 4/30/2012. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
FLAVOR HOUSE PRODUCTS, INC.,
A Delaware Company, and
HARVEST MANOR FARMS, LLC,
A Delaware Limited Liability Company

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)
)
)
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Plaintiffs,
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v.
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INTERNATIONAL NUT ALLIANCE, )
LLC, A New Jersey Limited Liability
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Company,
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)
Defendant.
)

Case No. 1:11-cv-753-WHA
(WO)

ORDER
Upon consideration of the evidence submitted in support of and in opposition to
Defendant’s Motion to Dismiss or in the Alternative Motion to Compel Arbitration and Stay
(Doc. #13), the court notes that, while the affidavits of Michael Davis (Doc. # 25-1), John Runck
(Doc. # 25-2), and Maria Arreola (Doc. # 25-3) contain acknowledgments before a notary public,
the acknowledgments do not say that they were sworn to before the notary public. Therefore,
they are unsworn statements, and this prevents the court from properly considering them in its
resolution of Defendant’s Motion. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)
(“Because [the] affidavit was unsworn, it was not properly considered by the district court.”); see
also Gordon v. Watson, 622 F.2d 120, 123 (5th. Cir. 1980) (finding that an unsworn statement,
even by a pro se litigant, should not be “consider[ed] in determining the propriety of summary

judgment.”)1. Pursuant to Federal Rule of Civil Procedure 56(e)(1), the court will give the
Plaintiffs until Monday May 7, 2012 to cure the defects in the affidavits, if they wish to do so.

Done this 30th day of April, 2012.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

1

The Eleventh Circuit adopted as precedent all Fifth Circuit opinions issued before
November 3, 1981. See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir.1981)
2