Hernandez v. J.P. Morgan Chase Bank N.A. et al
Filing
133
ORDER granting in part and denying in part 127 Motion to Strike. Signed by Magistrate Judge Jonathan Goodman on 6/30/2016. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14‐24254‐CIV‐GOODMAN
[CONSENT CASE]
MARCO J. HERNANDEZ,
Plaintiff,
v.
J.P. MORGAN CHASE BANK N.A.,
Defendant.
__________________ /
ORDER ON DEFENDANT’S MOTION TO STRIKE
J.P. Morgan Chase Bank, N.A. (“Defendant” or “Chase”) filed a summary
judgment motion on May 13, 2016. [ECF No. 106]. Marco J. Hernandez (“Plaintiff”) filed
a Response to Defendant’s summary judgment motion on June 3, 2016. [ECF No. 117].
On June 15, 2016, Defendant filed an Objection to and Motion to Strike Plaintiff’s
Inadmissible Evidence in Opposition to Chase’s Motion for Summary Judgment (the
“Motion to Strike”), contesting five exhibits relied upon by Plaintiff in his opposition
response. [ECF No. 127].
For the reasons outlined below, the Court grants in part and denies in part
Defendant’s Motion to Strike. Specifically, correspondences sent by Brown & Brown,
Inc. [ECF No. 120‐1] (the “Brown & Brown Correspondences”) and a website printout
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appearing to be from a Freddie Mac website [ECF No. 81‐5] (the “Website Printout”) are
stricken. The other challenged exhibits [ECF Nos. 81‐3; 97‐2; 120‐2] are available to
support Plaintiff’s opposition to the summary judgment motion.
I.
LEGAL STANDARD
Generally, to “be admissible in support of or in opposition to a motion for
summary judgment, a document must be authenticated by and attached to an affidavit
that meets the requirements of Rule 56(e) and the affiant must be a person through
whom the exhibits could be admitted into evidence.” Saunders v. Emory Healthcare, Inc.,
360 F. App’x 110, 113 (11th Cir. 2010); see also Wells v. XPEDX, 8:05‐CV‐2193‐T‐EAJ, 2007
WL 2696566, at *2 (M.D. Fla. Sept. 11, 2007).
Still, trial courts have “broad discretion in determining the admissibility of
evidence[.]” United States v. Zapata, 139 F.2d 1355, 1357 (11th Cir. 1998) (per curiam); see
also United States v. Williford, 764 F.2d 1494, 1497 (11th Cir. 1985). Evidentiary rulings by
the district courts are reviewed by appellate courts “for clear abuse of discretion.”
United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). “A district court abuses its
discretion to admit relevant evidence when its decision rests on a clearly erroneous fact‐
finding[.]” Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 F.3d 1277, 1291
(11th Cir. 2014).1
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“To be clearly erroneous, a decision must strike [the reviewing court] as more
than just maybe or probably wrong; it must . . . strike [the court] as wrong with the
force of a five‐week old, unrefrigerated dead fish.” Cox Enters., Inc. v. News‐Journal
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II.
DISCUSSION
Defendants ask the Court, [ECF No. 127], to strike five exhibits offered by
Plaintiff in opposition to the summary judgment motion: (1) the Brown & Brown
Correspondences [ECF No. 120‐1]; (2) the Federal Housing Finance Agency Office of
Inspector General’s June 2014 evaluative report entitled “FHFA’s Oversight of the
Enterprises’ Lender‐Placed Insurance Costs” [ECF No. 120‐2] (the “FHFA OIG Report”);
(3) written testimony given by Robert A. Segnini to the New York State Department of
Financial Services Financial Frauds & Consumer Protection Division, Public Hearing on
Lender Placed Insurance [ECF No. 81‐3] (the “Segnini Testimony”); (4) the Website
Printout [ECF No. 81‐5]; and (5) a letter from American Security Insurance Agency [ECF
No. 97‐2] (the “ASIA Letter”).
1. The Brown & Brown Correspondences
Plaintiff relies on the Brown & Brown Correspondences as evidence of
continuous coverage. [ECF No. 118, p. 4]. Although one of the documents mentions a
subpoena [ECF No. 120‐1, p. 2], there is no subpoena attached to any of the pages.
Moreover, there is no affidavit attached to the correspondences. Given the lack of an
affidavit in compliance with Federal Rule of Civil Procedure 56(e), and the absence of
any other meaningful way to verify the content of the correspondences, the documents
are not properly authenticated and will not be considered by this Court when assessing
Corp., 794 F.3d 1259, 1272, n. 92 (11th Cir. 2015) (quoting Parts & Elec. Motors, Inc. v.
Sterling Elec. Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
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the summary judgment motion. See Saunders, 360 F. App’x at 113; see also Wells, 2007 WL
2696566, at *2.
2. The FHFA OIG Report
Plaintiff relies on the FHFA OIG Report to support allegations that Defendant
engaged in abusive force‐placed insurance practices. [ECF No. 118, p. 11]. No affidavit
is attached to the FHFA OIG Report, but the FHFA OIG’s seal is affixed to the first three
pages of the report [ECF No. 120‐2, pp. 1‐3] and appears at the top of a memorandum
on the twenty‐third page of the report [Id., at p. 23].
Federal Rule of Evidence 902 states that documents bearing “a seal purporting to
be that of the United States . . . [or] a political subdivision” of the United States “require
no extrinsic evidence of authenticity in order to be admitted. Fed. R. Evid. 902(1)(a).
Thus, because the seal purports to be that of the FHFA OIG, no affidavit is required to
authenticate the validity of the report, and thus the exhibit will not be stricken.
3. The Segnini Testimony
The Segnini Testimony is not supported by an affidavit of authenticity. However,
the document itself contains a cover sheet, signed on behalf of the law firm Debevoise &
Plimpton LLP (“Debevoise”), confirming that the enclosed documents contain the
written testimony submitted by Robert A. Segnini. [ECF No. 81‐3, p. 1]. The cover letter
[ECF No. 81‐3, p. 1] accompanying the written testimony represents to state regulators
that the contents of the testimony is written testimony provided by Mr. Segnini.
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Debevoise, on whose letterhead the cover letter is drafted, is a well‐known international
law firm, whose attestation about the nature of the document carries weight with this
Court.
Additionally, the documents, and the cover letter, were sent by Debevoise to the
New York State Department of Financial Services, which acknowledged receipt of the
documents with the official stamps on the first page: “RECEIVED” and “EXECUTIVE
OFFICE” along with “NYS DEPT OF FINANCIAL SERVICES”. [ECF No. 81‐3, p. 1].
Accordingly, the Court is not concerned that the document is not what Plaintiff
describes it to be in his response. Therefore, the Undersigned finds the Segnini
Testimony sufficiently authenticated to be submitted with the summary judgment
opposition. Thus, invoking the broad discretion afforded to trial courts on evidentiary
rulings, the Undersigned finds that this exhibit is sufficiently authenticated
notwithstanding the lack of an affidavit.
Lastly, concerning Defendant’s hearsay argument, this evidence is an opposing
party’s statement admissible under Federal Rule of Evidence 801(2). The Segnini
Testimony is a statement “offered against an opposing party” (i.e. offered by Plaintiff
against Defendant) and is a statement made by an agent of Defendant on its behalf (i.e.
Robert A. Segnini opens his written remarks with the words, “[o]n behalf of Chase
Insurance Agency . . .” [ECF No. 81‐3, p. 2] (emphasis supplied)). Thus, this testimony
does not constitute hearsay pursuant to Rule 801(2).
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4. The Website Printout
The Website Printout is comprised of two pages from what appears to be a
Freddie Mac website, indicating that someone’s mortgage is owned by Freddie Mac.
[ECF No. 81‐5]. But there is no affidavit attached to the printout, despite Plaintiff’s
assertion to the contrary in its Response to the Motion to Strike. [ECF No. 131, p. 5].
There is essentially no information on the Website Printout which contains any
reference to this particular Plaintiff, his particular loan number, his particular property
address, or Defendant’s connection to any loan.
Thus, the Court has no basis for verifying whether Plaintiff’s loan is the one at
issue in the Website Printout. Without further information, the Website Printout could
be referring to any loan. Thus, the Undersigned has significant authenticity concerns.
The Website Printout is not sufficiently authenticated and I therefore strike it.
5. The ASIA Letter
There is no affidavit attached to the ASIA Letter which might, per Saunders,
authenticate its content. See Saunders, 360 F. App’x at 113. However, using the broad
discretion authority applicable here, the Undersigned will not strike the ASIA Letter.
Unlike the Website Printout evidence, the ASIA Letter identifies a specific borrower
(Plaintiff), pinpoints a specific property address and references a specific loan number,
all of which serve to ameliorate authenticity concerns. Furthermore, Defendant does not
actually contend that the document is not authentic, but, rather, it offers only a purely
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technical challenge ‐‐ that an affidavit does not accompany the document so it should be
stricken. I reject that argument and for the foregoing reasons I will not strike it.
III.
CONCLUSION
For the reasons stated above, this Court grants in part and denies in part
Defendant’s Motion to Strike [ECF No. 127]. In particular, the Brown & Brown
Correspondences [ECF No. 120‐1] and the Website Printout [ECF No. 81‐5] are stricken,
while the remaining exhibits remain in the record as part of Plaintiff’s opposition to the
summary judgment motion.
DONE and ORDERED, in Chambers, in Miami, Florida, June 30, 2016.
Copies furnished to:
All counsel of record
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