National Federation of the Blind et al v. Target Corporation

Filing 115

MOTION to Strike 109 Declaration in Support, filed by Target Corporation. Motion Hearing set for 4/12/2007 02:00 PM. (Attachments: # 1 Proposed Order)(Kreeger, Matthew) (Filed on 4/5/2007)

National Federation of the Blind et al v. Target Corporation

Doc. 115

Case 3:06-cv-01802-MHP

Document 115

Filed 04/05/2007

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HAROLD J. McELHINNY (CA SBN 66781) MATTHEW I. KREEGER (CA SBN 153793) KRISTINA PASZEK (CA SBN 226351) [e-mail] [e-mail] [e-mail] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant TARGET CORPORATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

NATIONAL FEDERATION OF THE BLIND, the NATIONAL FEDERATION OF THE BLIND OF CALIFORNIA, on behalf of their members, and Bruce F. Sexton, on behalf of himself and all others similarly situated, Plaintiffs, v. TARGET CORPORATION, Defendant.

Case No.

C 06-01802 MHP

TARGET CORPORATION'S NOTICE OF MOTION AND MOTION TO STRIKE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

Date: April 12, 2007 Time: 2:00 PM Judge: Hon. Marilyn Hall Patel

TARGET'S MOTION TO STRIKE CASE NO. C 06-01802 MHP sf-2296265
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NOTICE OF MOTION AND MOTION TO STRIKE TO PLAINTIFFS NATIONAL FEDERATION OF THE BLIND, NATIONAL FEDERATION OF THE BLIND OF CALIFORNIA, BRUCE F. SEXTON, AND THEIR ATTORNEYS: Defendant Target Corporation ("Target") hereby moves to strike paragraphs 5 and 6 of the Declaration of Anne Taylor in Support of Plaintiffs' Reply in Support of Motion for Class Certification, dated and filed March 29, 2007. This motion to strike is based on this Notice of Motion and Motion, the supporting Memorandum of Points and Authorities, and such other evidence and argument as may be presented before the Court takes this motion under submission. MEMORANDUM OF POINTS AND AUTHORITIES Defendant Target Corporation ("Target") moves to strike paragraphs 5 and 6 of the Declaration of Anne Taylor in Support of Plaintiffs' Reply in Support of Motion for Class Certification, dated and filed March 29, 2007, on the grounds that the testimony therein is speculative, is not based on personal knowledge, and lacks foundation. A finding of numerosity under Federal Rule of Civil Procedure 23(a) must be properly supported by evidence. See, e.g., Siles v. ILGWU Nat'l Ret. Fund, 783 F.2d 923, 930 (9th Cir. 1986) (affirming denial of class certification where the proffered evidence was inadequate to establish numerosity). "Mere speculation as to the satisfaction of th[e] numerosity does not satisfy Rule 23(a)(1)." Schwartz v. Upper Deck Co., 183 F.R.D. 672, 681 (S.D. Cal. 1999); Nguyen Da Yen v. Kissinger, 70 F.R.D. 656, 661 (N.D. Cal. 1976). Plaintiffs attempt to support their class certification motion with evidence that is speculative, and therefore, inadmissible under the federal rules. Federal Rule of Evidence 602 provides: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Ms. Taylor is an employee of the National Federation of the Blind, a plaintiff in this action. In paragraph 5 of her declaration of March 29, 2007, Ms. Taylor says she "would expect that blind and visually-impaired people who use screen access software to access the
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internet would be more likely than sighted people to visit Target.com if it were fully and equally accessible." Ms. Taylor has not been, and cannot be, qualified as an expert, and she has not provided an adequate basis for her opinion. The total number of monthly visitors to Target.com does not reveal how many blind and visually-impaired people using screen access software would access the website. Ms. Taylor's statements regarding the likelihood of blind and visually-impaired people using screen access software to visit Target.com, as compared to sighted people, are purely speculative and not based on personal knowledge. Paragraph 5 of her declaration should accordingly be stricken. In paragraph 6 of her declaration, Ms. Taylor relies on paragraph 5 as a basis for further speculation regarding the number of blind and visually impaired people using screen access software, in the United States and in California, who would visit Target.com if it were fully and equally accessible. Ms. Taylor's testimony in paragraph 6 is also entirely speculative, without foundation, and not based on personal knowledge. Paragraph 6 should likewise be stricken. CONCLUSION For the foregoing reasons, Target's motion to strike should be granted.

Dated: April 5, 2007

HAROLD J. McELHINNY MATTHEW I. KREEGER KRISTINA PASZEK MORRISON & FOERSTER LLP

By:

/s/ Matthew I. Kreeger Matthew I. Kreeger Attorneys for Defendant TARGET CORPORATION

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