Dortch et al v. The City of Montgomery et al

Filing 41

MEMORANDUM OPINION AND ORDER denying as moot 29 , 30 , 32 , & 20 MOTIONS to Strike. Signed by Hon. Chief Judge Mark E. Fuller on 4/8/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION K E N D R IC K L. DORTCH, et al., P L A IN T IF F S , v. T H E CITY OF MONTGOMERY, et al., DEFEN DANTS. ) ) ) ) ) ) ) ) )

C A S E NO. 2:07cv1034-MEF

(WO- DO NOT PUBLISH)

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on several motions to strike directed to affidavits or d ec laratio n s submitted in support of or in opposition to pending motions for summary ju d g m e n t. The motions are as follows: Defendant G.C. Cremeens' Motion to Strike

A f f id a v it Testimony (Doc. # 29) which was filed on September 11, 2008 and addresses the d e c lar a tio n of Richie D. Thomas; Defendant G.C. Cremeens' Motion to Strike Affidavit T e stim o n y (Doc. # 30) which was filed on September 11, 2008 and addresses the declaration o f Kendrick Dortch; a motion to strike contained within Plaintiffs' Response to the

H o n o ra b le Court's Order to Show Cause (Doc. # 32) which was filed on September 19, 2008 a n d addresses affidavit testimony of Defendant G.C. Cremeens; and a motion to strike co n tain ed within Plaintiffs' Response in Objection to Defendant's Motion for Summary J u d g m e n t (Doc. # 20) which was filed on September 3, 2008 and addresses affidavit te s tim o n y of Defendant G.C. Cremeens. G iven that the challenged affidavit and declarations were submitted either in support

o f or in opposition to a motion for summary judgment, they must comply with the re q u ire m e n ts of Rule 56(e) of the Federal Rules of Civil Procedure. Rule 56(e) makes it p la in that affidavits or declarations submitted in support of or opposition to a motion for su m m a ry judgment shall be made on personal knowledge, shall set forth such facts a s would be admissible in evidence, and shall affirmatively show th a t the affiant is competent to testify to the matters stated th e re in . Fed. R. Civ. P. 56(e) (emphasis added). The requirements of Rule 56 make it plain that a f f i d a v i ts which set forth conclusory arguments rather than statements of fact based on p e rs o n a l knowledge are improper. See, e.g., Thomas v. Ala. Council on Human Relations, In c ., 248 F. Supp. 2d 1105, 1112 (M.D. Ala. 2003); Story v. Sunshine Foliage World, Inc., 1 2 0 F. Supp. 2d 1027, 1030 (M.D. Fla. 2000). Accord, Leigh v. Warner Bros., Inc., 212 F.3d 1 2 1 0 , 1217 (11th Cir. 2000). Sworn statements which fail to meet the standards set forth in R u le 56(e) may be subject to a motion to strike. See, e.g., Thomas, 248 F. Supp. 2d at 1112; G iv h a n v. Electronic Eng'rs, Inc., 4 F. Supp. 2d 1331, 1334 (M.D. Ala. 1998). However, the C o u rt need not strike the entire affidavit, rather it may strike or disregard the improper p o rtio n s and consider the remainder of the testimony or statement. Id. at p. 1334 n.2. This C o u rt will exercise its discretion to disregard any improper portions of the challenged a f f id a v it or declarations. Accordingly, the aforementioned motions are DENIED AS MOOT. D O N E this the 8th day of April, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 2