Delano et al v. Mastec, Inc. et al

Filing 90

ORDER denying 62 Motion to strike. Signed by Judge James D. Whittemore on 4/22/2011. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MATT DELANO, MITCHELL GOODSON,
TIM HINEFELT, TOM BANCROFT,
and all other persons similarly situated,
Plaintiffs,
vs.

Case No. 8:10-CV-320-T-27MAP

MASTEC, INC. and MASTEC NORTH
AMERICA, INC.,
Defendants.

___________________________________________________.1

ORDER
BEFORE THE COURT is Defendants' Motion to Strike the Affidavit and Opt-In Consent
Form of Darryl Barnes (Dkt. 62), to which Plaintiffs have responded (Dkt. 65). Upon consideration,
the motion is DENIED.
Defendants argue that the affidavit of Darryl Barnes (Dkt. 44-1) should be stricken because
it is unsworn and otherwise fails to comply with 28 U.S.C. § 1746.
"Mere submission of a document calling itself an affidavit does not make it an affidavit."

Bosch v. Title Max, Inc., No. CIV A 03-AR-0463-S, 2004 WL 5238128, at *1 (N.D. Ala. Aug. 25,
2004). An affidavit is '" [a] voluntary declaration offacts written down and sworn to by the declarant
before an officer authorized to administer oaths, such as a notary public. '" Tishcon Corp. v.

Soundview Communciations, Inc., No.1 :04-CV-524-JEC, 2005 WL 6038743, at *3 (N.D. Ga. Feb.
15, 2005) (quoting Black's Law Dictionary 62 (8th ed. 1990)). 1 However, even if erroneously styled

1 See also Peters v. LincolnElec. Co., 285 F.3d456, 475 (6th Cir. 2002)("an 'affidavit' is required to be sworn
to by the affiant in front of an 'officer authorized to administer oaths"') (quoting Black's Law Dictionary 54 (5th ed.
1979».

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an "affidavit," an unsworn declaration can have the force and effect of an affidavit if it is signed,
dated, and includes language "in substantially the following fonn ... 'I declare (or certify, verify,
or state) under penalty of perjury ... that the foregoing is true and correct. Executed on (date).
(Signature).'" 28 U.S.C. § 1746 (emphasis addedV Although a party represented by counsel has
little excuse for not using verbatim the language suggested by the Code, several courts have held that
omission to state that the matters declared are "true and correct" is not fatal. See LeBoeut Lamb,

Greene & MacRae, LLP v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (unsworn letter dated and
signed with the statement, "under penalty of perjury, 1 make the statements contained herein,"
satisfied the requirements of 28 U.S.C. § 1746); Tishcon Corp., 2005 WL 6038743, at *3-4
(statement that counsel "hereby declares under penalties of perjury the following" was sufficient as
it "signaled that [the declarant] understands the legal significance of his statements and the potential
for punishment if he lies."V
Barnes's "affidavit" is dated and subscribed ''under the pains and penalties of perjury." (Dkt.
44-1). The document substantially complies with Section 1746.
Defendants further argue that Barnes's affidavit should based on the "sham affidavit"
doctrine. Under that doctrine, a court may disregard as a sham an affidavit that contradicts a party's

2 See also West v. Higgins, 346 F. App'x. 423, 426 (11 th Cir. 2009) ("Federal law does provide an alternative
to making a sworn statement, but requires that the statement include a handwritten averment, signed and dated, that the
statement is true under the penalties of perjury.") (citing 28 U.S.C. § 1746); Montgomery v. Ruxton Health Care, IX,
LLC, No. 3:06cv024, 2006 WL 3746145, at *2 (E.D. Va. Dec. 15,2006) ("[U]nsworn declarations captioned as
'affidavits' may be considered for purposes of summary judgment so long as they satisfy the requirements of28 U .S.C.
§ 1746.").

3 Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300 (5th Cir. 1988), does not require a different result. In
that case, the former Fifth Circuit rejected an "affidavit" that was "neither sworn nor its contents stated to be true and
correct nor stated under penalty of perjury." Id. at 1305-06 (emphasis added). Its holding does not clearly imply the
insufficiency of an affidavit that simply omits the "true and correct" statement. See Tishcon Corp., 2005 WL 6038743,
at *4 n.l. Indeed, the Second Circuit has construed the statement as implying the opposite conclusion. See Worsham,
185 F.3d at 66 n.2.

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previous deposition testimony when the affidavit does not give any valid explanation for the
contradiction. See Van T. Junkins & Assocs., Inc. v. Us. Indus., Inc., 736 F.2d 656, 657 (11 th Cir.
1984) ("When a party has given clear answers to unambiguous questions which negate the existence
of any genuine issue of material fact, that party cannot thereafter create such an issue [and thus defeat
a summary judgment motion] with an affidavit that merely contradicts, without explanation,
previously given clear testimony".). However, "[t]his rule is applied sparingly because of the harsh
effect it may have on a party's case." Allen v. Bd. of Pub. Educ. for Bibb County, 495 F.3d 1306,
1316 (lIth Cir. 2007). The court must "find some inherent inconsistency between an affidavit and
a deposition before disregarding the affidavit." Id.
Defendants acknowledge that the "typical case" in which the doctrine is applied involves a
conflict with previous deposition testimony. (Dkt. 62 at 10). Defendants seek to extend the doctrine
to a conflict between Barnes's affidavit and (a) Barnes's obligations under a settlement agreement
in a previous lawsuit, Stahl v. MasTex, Inc., No. 8:05-cv-1265-T27TGW (M.D. Fla.) (the "Stahl
lawsuit"), and (b) a printed certification on time sheets Barnes was required to submit during his
subsequent employment at MasTac stating that the time sheets were accurate and that he had not
been induced by any supervisor to under-report his hours.
Defendants cite no authority extending the sham affidavit doctrine to such a conflict and the
rationale of the doctrine is inapplicable, particularly as the alleged conflict is (a) with a promise
Barnes allegedly made in connection with the Stahl settlement (which is not a statement of existing
fact at all) and (b) with unsworn statements Barnes allegedly made outside this litigation.
Defendants also argue that, under its inherent authority to sanction litigants for bad-faith
abuse of the judicial process, the Court should strike Barnes's affidavit (as well as his opt-in consent

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fonn [Dkt. 31-1 at 2]) as a sanction for submitting "material misrepresentations in a sworn document
filed with this court." (Dkt. 62 at 14). However, Defendants do not show that Barnes has committed
perjury. Defendants rely on the alleged conflict between (1) Barnes's avennent that he frequently
worked more than forty hours per week but was not paid overtime in part because his supervisors
directed him to change his times sheets to show he had worked only forty hours per week and told
him to work elsewhere if he wanted to report more than forty hours with (2) the printed statement
on Barnes's time sheets that he reported all hours worked and had not been induced by any
supervisor to under-report his hours. Even if not easily explained on the basis of Allen's affidavit
as a whole and the allegations of the Complaint, the alleged conflict does not demonstrate perjury.
Accordingly, Defendants' Motion to Strike the Affidavit and Opt-In Consent Fonn of Darryl
Barnes (Dkt. 62), is DENIED.

.L.

DONE AND ORDERED in chambers this ].,.'], day of April, 2010.

Copies to:
Counsel of Record

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