Dortch et al v. The City of Montgomery et al
MEMORANDUM OPINION AND ORDER denying as moot Dft G.C. Cremeens' Motion to Strike Affidavit Testimony (Doc. # 28) which was filed on 9/11/2008 in the member case, 2:07cv1035. Signed by Hon. Chief Judge Mark E. Fuller on 1/22/2010. (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, and RICHARD ) T H O M A S , as owner of the ROSE SUPPER ) CLU B, ) ) P L A IN T IF F S , ) ) v. ) ) T H E CITY OF MONTGOMERY and ) L T . G.C. CREMEENS, ) ) D EFEN D A N TS. )
C A S E NO.: 2:07-cv-1034-MEF (L E A D CASE)
(WO-Do Not Publish)
T IM O T H Y CRENSHAW, and KENT ) C R E N S H A W , as owner of the DIAMONDS ) CLU B, ) ) P L A IN T IF F S , ) ) v. ) ) T H E CITY OF MONTGOMERY and ) L T . G.C. CREMEENS, ) ) D EFEN D A N TS. )
C A S E NO.: 2:07-cv-1035-MEF (M E M B E R CASE)
M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Defendant G.C. Cremeens' Motion to Strike A f f id a v it Testimony (Doc. # 28) which was filed on September 11, 2008 in the member case, 2 :0 7 c v 1 0 3 5 . This motion to strike directed to an affidavit submitted in opposition to pending m o tio n s for summary judgment.
Given 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 s u 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 its 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 motion is DENIED AS MOOT. D O N E this the 22 n d day of January, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?