Robertson v. ADA Alliance Data Systems, Inc.
Filing
327
ORDER: Defendant ADS Alliance Data Systems, Inc.'s Motion to Strike Declaration of Andrew Krueger 276 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 1/14/2014. (KNC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DOUGLAS B. STALLEY, in his
capacity as Personal Representative
of the Estate of Gary Robertson
and JEREMIAH HALLBACK, individually,
and on behalf of all those similarly
situated,
Plaintiffs,
v.
Case No. 8:11-cv-1652-T-33TBM
ADS ALLIANCE DATA SYSTEMS, INC.,
Defendant.
_________________________________/
ORDER
This matter comes before the Court pursuant to Defendant
ADS
Alliance
Data
Systems,
Inc.’s
Motion
to
Strike
Declaration of Andrew Krueger (Doc. # 276), which was filed
on September 25, 2013. Plaintiffs Douglas B. Stalley, in his
capacity as Personal Representative of the Estate of Gary
Robertson,
and
Jeremiah
Hallback
filed
a
response
in
opposition to ADS’s Motion on September 27, 2013. (Doc. #
279). Upon review and for the reasons stated below, the Court
denies ADS’s Motion.
I.
Background
On
March
4,
2013,
Stalley
and
Hallback
filed
the
declaration of Andrew Krueger (Doc. # 163) - an employee of
NICE Systems, Inc., “which is a corporation from which [ADS]
has previously purchased hardware and software” products
(Doc. # 276 at ¶ 1). According to ADS, this declaration
“purports to apply the statutory definitions of various terms
contained within [the Florida Security of Communications Act]
to the facts of this case. . . .” (Id. at ¶ 4).
Thereafter, on August 30, 2013, Stalley and Hallback
filed their Renewed and Amended Motion for Partial Summary
Judgment (Doc. # 256) directed, in part, at ADS’s affirmative
defense – the business extension exception – contained in the
Florida
Security
of
Communications
Act.
In
the
Motion,
Stalley and Hallback cite to the Krueger declaration to
support their argument of entitlement to summary judgment on
this defense. (Id.).
On
September
17,
2013,
Krueger
was
deposed
as
the
corporate representative of NICE. (Doc. # 275-1). In that
deposition,
(Id.).
Krueger
According
establishes
that
to
testified
ADS,
“Krueger
regarding
Krueger’s
never
his
declaration.
deposition
‘reviewed
the
testimony
relevant
portions of the [Florida Security of Communications Act] and
the definitions that the statute[] applies to its terms,’ he
2
did not ‘rely on the plain language of the [Florida Security
of Communications Act] and its definitions to conclude that
the NICE products do not fit those definitions’ and he does
not ‘understand the meaning of these terms as they are defined
in the [Florida Security of Communications Act].’” (Doc. #
276 at ¶ 14). Therefore, ADS filed the present Motion on
September 25, 2013, seeking to strike paragraphs 2, 3, 4, 5,
6, and 8 from Krueger’s declaration. (See Doc. # 276). Stalley
and Hallback filed a response in opposition to ADS’s Motion
on September 27, 2013. (Doc. # 279). This Court has reviewed
the present Motion, the response thereto and the relevant
documentation and is otherwise fully advised in the premises.
II.
Discussion
Federal Rule of Civil Procedure 56(c)(4) provides that
“[a]n affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”
However, the federal rules require that an affiant, who has
been designated to testify on a corporation’s behalf in
accordance with Fed. R. Civ. P. 30(b)(6), “must testify about
information
known
or
reasonably
organization.”
3
available
to
the
Despite
ADS’s
acknowledgment
that
Krueger
is
the
corporate representative of NICE pursuant to Rule 30(b)(6),
ADS still urges this Court to strike portions of Krueger’s
declaration relying on the Fed. R. Civ. P. 56(c)(4) personal
knowledge requirement. (Doc. # 276 at ¶ 2). Specifically, ADS
submits that Krueger’s declaration contains nothing more than
bare, unsupported arguments. (Id. at ¶¶ 5, 15). ADS further
argues that Krueger is not qualified to testify regarding
these conclusions as he lacks personal knowledge of the
matters to which he testifies – namely paragraphs 2, 3, 4, 5,
6 and 8 of the declaration regarding the statutory definitions
of the Florida Security of Communications Act. (Id. at ¶¶ 6,
16).
In their response, Stalley and Hallback contend that
“[w]hile Rule 56(c)(4) does require an affidavit to be based
on personal knowledge, . . . an affidavit by a rule 30(b)(6)
designee does not have to be based on personal knowledge but
is expected to be based on the organization‘s collective
knowledge.” (Doc. # 279 at 5)(quoting Sunbelt Worksite Mktg.,
Inc. v. Metro. Life Ins. Co., No. 8:09-cv-02188-T-17MAP, 2011
WL 3444256, at *2 (M.D. Fla. Aug. 8, 2011)).
According to Stalley and Hallback, in his declaration,
Krueger was speaking on behalf of the collective knowledge of
4
NICE, not himself personally, and therefore, his statements
are neither unsupported or conclusory. (Doc. # 279 at 7).
Stalley and Hallback contend that this collective knowledge
includes the advice and assistance of NICE’s in-house and
outside
counsel.
(Id.
at
8).
Furthermore,
Stalley
and
Hallback submit that Krueger’s declaration does not contain
legal conclusions, but instead, contains statements of fact
related to the kind of company NICE is and the kind of
equipment it provides to its customers, which includes ADS.
(Id.). As a result, Stalley and Hallback submit that the
Krueger
declaration
is
to
be
considered
under
the
Rule
30(b)(6) standard.
In Atlantic Marine Florida, LLC. v. Evanston Insurance
Company, No. 3:08-cv-538-J-20TEM, 2010 WL 1930977, at *1
(M.D. Fla. May 12, 2010), the plaintiff filed an affidavit of
its authorized corporate representative in support of its
motion for summary judgment. However, the defendant sought to
strike
the
inadmissible
personal
serving
affidavit
because
hearsay,
including
knowledge,
speculation
“it
[was]
statements
replete
not
legal/opinions/conclusions,
as
to
the
parties’
with
based
and
intent.”
on
self(Id.).
Specifically, defendants argued that “review of the relevant
corporate documents prior to submitting a declaration on
5
behalf of the corporation, as its authorized representative,
is insufficient to meet the ‘personal knowledge’ requirement
set forth in Rule 56.” (Id.). This Court declined to strike
the corporate representative's affidavit on the grounds of
insufficient personal knowledge. (Id. at *3). This Court
found that it was unnecessary for a corporate representative
designated as a Rule 30(b)(6) witness to have direct, personal
knowledge of each and every fact discussed in an affidavit or
deposition because a Rule 30(b)(6) representative can be
inferred to have knowledge on behalf of the corporation as
the corporation is meant to appear vicariously through its
designated representative. (Id. at *2).
The facts in this case are similar to those presented in
Atlantic Marine Florida. Krueger is a 30(b)(6) corporate
designee, his declaration was filed in support of Stalley and
Hallback’s Renewed and Amended Motion for Partial Summary
Judgment, and ADS’s argument to strike the declaration is
based
in
part
on
Kruger’s
lack
of
personal
knowledge.
Accordingly, upon review, this Court, as it did in Atlantic
Marine Florida, denies ADS’s Motion to Strike because it is
“not
necessary
knowledge
of
for
each
[Kruger]
and
every
6
to
have
fact
direct,
discussed
personal
in
[the
declaration].” See Sunbelt Worksite Mktg., Inc., 2011 WL
3444256.
Furthermore, to the extent that ADS contends Krueger’s
declaration should be stricken because it contains legal
conclusions in support of Stalley and Hallback’s Renewed and
Amended
Motion
for
Partial
Summary
Judgment,
this
Court
disagrees. The Court has reviewed the declaration, and while
it could be construed as containing legal conclusions, it is
based on personal knowledge and is otherwise sufficient to
survive the present Motion to Strike. This Court is fully
capable of separating the wheat from the chaff in documents
submitted into evidence. In ruling on the pending motions for
summary judgment, this Court will not substitute the legal
conclusions drawn by Krueger, or any affiant for that matter,
for its own judicial analysis.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant ADS Alliance Data Systems, Inc.’s Motion to
Strike Declaration of Andrew Krueger (Doc. # 276) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
14th day of January, 2014.
7
Copies: All Counsel of Record
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