Dortch et al v. The City of Montgomery et al

Filing 65

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(WO-Do Not Publish)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

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