Kintz v. United Parcel Service, Inc.

Filing 43

MEMORANDUM OPINION AND ORDER; that UPS's 37 Motion to Strike is DENIED as MOOT to the extent it requests the Court to exclude Kintz's unauthenticated evidentiary submissions. Additionally, Kintz's request to supplement her evidentiar y submissions is DENIED; that Defendant UPS's Motion to Strike is GRANTED in part and DENIED in part, as explained above; that Plaintiff Kintz be granted until November 16, 2010 to supplement her Evidentiary Submissions in Response to Defendant UPS's Motion for Summary Judgment as further set out. Signed by Hon. Chief Judge Mark E. Fuller on 11/9/2010. (Attachments: # 1 Civil Appeals Checklist)(jg, )

Kintz v. United Parcel Service, Inc.

Doc. 43

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION C H E R I J. KINTZ, P la in tif f , v. U N IT E D PARCEL SERVICE, INC., D e f e n d a n t. ) ) ) ) ) ) ) ) )

C A S E NO. 3:09-cv-1033-MEF (W O )

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on Defendant United Parcel Service, Inc.'s ("UPS") M o tio n to Strike the Declaration of Cheri Kintz-Roberts and Certain Exhibits to P la in tif f 's Evidence Submitted in Opposition to Defendant's Motion for Summary J u d g m e n t, filed October 22, 2010 (Doc. # 37), and Plaintiff Cheri Kintz's ("Kintz") R e sp o n s e to this Court's Order requiring Kintz to show cause why UPS's Motion to S trik e should not be granted (Doc. # 41). UPS argues that Kintz's declaration (Doc. # 34, Exhibit 1) and several exhibits s h o u ld be striken from the record for the following reasons: (1) Kintz's declaration does n o t meet the evidentiary requirements of either Fed. R. Civ. P. 56(e) or 28 U.S.C. § 1746; (2 ) Kintz's declaration contains inadmissible hearsay; (3) Kintz does not have personal k n o w le d g e regarding statements made in her declaration; (4) statements in Kintz's

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declaration are inconsistent with statements made during her deposition; and (5) thirtyth re e exhibits attached to Kintz's response to UPS's Motion for Summary Judgment are u n a u th e n tic a te d . A. Kintz's Unsworn Declaration: F e d e ra l Rule of Civil Procedure 56(e) requires that an affidavit opposing summary ju d g m e n t "must be made on personal knowledge, set out facts that would be admissible in e v id e n c e , and show that the affiant is competent to testify on the matters stated." Title 2 8 , U.S.C. § 1746 provides an alternative to sworn affidavits, allowing unsworn d e c la ra tio n s to be submitted if certain statutory requirements are met. Such a declaration m u s t be "subscribed by him, as true under penalty of perjury, and dated," and include the f o llo w in g phrase in "substantially the following form:" If executed within the United States, its territories, possessions, or c o m m o n w e a lth s: "I declare (or certify, verify, or state) under penalty of perjury th a t the foregoing is true and correct." 2 8 U.S.C. § 1746. Kintz's declaration states, "I, the undersigned Cheri Kintz-Roberts, hereby swear o r affirm that the following is true and correct and based on my personal knowledge." (D o c . 34, Ex. 1). Her declaration is clearly unsworn, and therefore must meet the re q u ire m e n ts of 28 U.S.C. § 1746. The Kintz declaration does not contain language s u b s ta n tia lly similar to that required by the statute, i.e. Kintz did not swear under penalty o f perjury that her statements were true. Striking the Plaintiff's entire

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declaration--without granting leave to refile the declaration-- on the basis of a technical d e f e c t is a harsh remedy. For these reasons, Defendant's Motion to Strike is GRANTED a s to the Kintz declaration. However, it is ORDERED that Plaintiff be given leave to re s u b m it her declaration so that it may be brought into compliance with the requirements o f 28 U.S.C. § 1746, if possible. B. Remaining Objections to Kintz's Declaration: U P S also objects to Kintz's declaration on the basis that it contains hearsay, is not m a d e on personal knowledge, and contradicts Kintz's deposition testimony. When an a f f id a v it or declaration contains inadmissible portions, "the court may strike or disregard th e inadmissible portions and consider the rest" of the affidavit or declaration. White v. W e lls Fargo Guard Services, 908 F. Supp. 1570, 1578 n5 (M.D. Ala. 1995) (emphasis a d d e d ). When considering the parties' respective summary judgment submissions, the C o u rt will "`implicitly address any meritorious objection as needed in its consideration of th is motion' by simply not considering the testimony in question." Granger v. Williams, 2 0 0 F. Supp. 2d 1346, 1350 (M.D. Ala. 2002). Until then, it is not necessary to make s p e c if ic rulings on each portion of the declaration to which UPS objects. Therefore, U P S 's Motion to Strike is DENIED as MOOT to the extent that it is based on the above n u m e ra te d grounds for striking the Kintz declaration. Kintz's request for leave to s u p p le m e n t her response is also DENIED to the extent that she wishes to add deposition te s tim o n y, etc. to her response.

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C. Kintz's Unauthenticated Evidence: U P S further moves the Court to disregard thirty-three of the thirty-seven exhibits f ile d by Kintz in her Response to UPS's Motion for Summary Judgment on the ground th a t these documents have not been authenticated. These include (in addition to the Kintz d e c la ra tio n , which is attached as Exhibit 1 and discussed above) Exhibit 2 and Exhibits 53 7 . A District Court may consider on Summary Judgment documents that are not c u rre n tly in admissible form if those documents "could be reduced to admissible form" f o r trial. Saunders v. Emory Healthcare, Inc. 360 F. App'x 110, 112-13 (11th Cir. 2010). A cursory review of the documents submitted as Plaintiff's Exhibits 2 and 5-37 indicates th a t many of them could be authenticated with proper trial testimony. The Court does not deem it necessary at this time to make a decision about the p o te n tia l of each document to be reduced to an admissible form at trial. Again, the Court w ill "implicitly address any meritorious objection as needed in its consideration of this m o tio n " by simply disregarding any documents or exhibits that it deems to be in a d m is s ib le . Granger, 200 F. Supp. 2d at 1350. For these reasons, UPS's Motion to S trik e is DENIED as MOOT to the extent it requests the Court to exclude Kintz's u n a u th e n tic a te d evidentiary submissions. Additionally, Kintz's request to supplement her e v id e n tia ry submissions is DENIED. It is thereby ORDERED that: D e f e n d a n t UPS's Motion to Strike is GRANTED in part and DENIED in part, as

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explained above. It is further ORDERED that Plaintiff Kintz be granted until November 1 6th , 2010 to supplement her Evidentiary Submissions in Response to Defendant UPS's M o tio n for Summary Judgment so that the declaration of Cheri Kintz-Roberts may be b ro u g h t into compliance with the requirements of 28 U.S.C. § 1746, if possible. No f u rth e r supplementation of either the Kintz declaration or the remaining Exhibits will be p e rm itte d at this time. Done this the 9th day of November, 2010.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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