SETAI HOTEL ACQUISITION LLC v. MIAMI BEACH LUXURY RENTALS, INC. et al

Filing 217

ORDER ON DEFENDANTS' MOTIONS TO STRIKE. The Court denies ECF No. 172 Motion to Strike and ECF No. 184 Motion to Strike. Signed by Judge Robert N. Scola, Jr on 8/9/2017. (mc)

United States District Court
for the
Southern District of Florida
Setai Hotel Acquisition, LLC,
Plaintiff
v.
Miami Beach Luxury Rentals, Inc.
and Allen Tuller, Defendants.

)
)
) Civil Action No. 16-21296-Civ-Scola
)
)

Order on Defendants’ Motions to Strike
The Defendants’ filed two motions to strike certain evidence that the
Plaintiff Setai Hotel Acquisition submitted in support of its motion for summary
judgment and in opposition to the Defendants’ motion for summary judgment.
(Mot. 1, ECF No. 172; Mot. 2, ECF No. 184.) Specifically, the Defendants seek
to strike: (1) the affidavit of Salem Mounayyer and exhibits thereto (ECF No.
143); (2) the affidavit of Daniel J. Barsky and exhibits thereto (ECF No. 144); (3)
an expert report on damages (ECF No. 166-1); (4) exhibits attached to the
second affidavit of Daniel J. Barsky (ECF No. 165); and (5) the declaration of
Robert Spiegelman, attached to Setai’s reply in support of its motion for
summary judgment (ECF No. 181-2). Setai filed a consolidated response (ECF
No. 193), and the Defendants filed a consolidated reply (ECF No. 196).
As an initial matter, the Court notes that the Defendants failed to include
a certificate of a good-faith conference in either motion. The Local Rules of the
Southern District of Florida, requiring a moving party to confer in good-faith:
“Prior to filing any motion in a civil case . . . counsel for the movant shall
confer . . . or make reasonable effort to confer . . . with all parties or nonparties who may be affected by the relief sought in the motion in a good faith
effort to resolve by agreement the issues to be raised in the motion.” S.D.
Fla. L.R. 7.1(a)(3). The motion must include a certification noting that the
movant complied with the Rule. “Failure to comply with the requirements of
this Rule provides the Court sufficient grounds to deny the Motion without
reaching the merits.” Boston v. Allstate Prop. & Cas. Ins. Co., No. 15-CIV20962, 2015 WL 13134478, at *3 (S.D. Fla. July 9, 2015) (Graham, J.) (internal
citation and quotations omitted).
The Court takes these requirements seriously and has full discretion to
deny the Defendants’ motions on these grounds alone. See Nanotech Entm’t,
Inc. v. R&T Sports Mktg., Inc., No. 14-61608-CIV, 2014 WL 12611203, at *3
(S.D. Fla. Sept. 24, 2014) (Cohn, J.). However, notwithstanding the Defendants’

lack of compliance and in the interest of judicial economy, the Court denies
the motions on the merits (ECF No. 172 and 184).
“An affidavit submitted in connection with a summary judgment motion
is subject to a motion to strike if it does not meet the standards set forth under
Rule 56(e) of the Federal Rules of Civil Procedure.” Pashoian v. GTE Directories,
208 F. Supp. 2d 1293, 1297 (M.D. Fla. 2002). Rule 56(c)(4) provides that an
affidavit “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.” As such, a court may strike an affidavit
including conclusory arguments, statements not based on personal knowledge,
or hearsay statements. Pashoian, 208 F. Supp. 2d at 1297–98. However, “a
district court may consider a hearsay statement in passing on a motion for
summary judgment if the statement could be reduced to admissible evidence at
trial or reduced to admissible form.” Macuba v. Deboer, 193 F.3d 1316, 1323
(11th Cir. 1999) (internal quotations omitted). “A motion to strike an affidavit
or declaration should be granted only in extreme circumstances.” Wajnstat v.
Oceania Cruises, Inc., No. 09-21850-CIV, 2011 WL 2746235, at *1 (S.D. Fla.
July 14, 2011) (Cooke, J.) (internal citation and quotations omitted).
The Court has reviewed meticulously the allegedly objectionable
affidavits and exhibits, and the Court finds no grounds on which to strike
them. Of course, in ruling on the cross-motions for summary judgment the
Court will “consider and assess the relevance and competence” of all of the
evidence presented in support of and in opposition to the motions. See
Hernandez v. Mohawk Indus., Inc., No. 608-CV-927-ORL-28GJK, 2009 WL
3762847, at *1 (M.D. Fla. Nov. 10, 2009). If the Court finds that certain
paragraphs in affidavits or certain exhibits are inadmissible for purposes of
summary judgment, the Court will not consider that material in reaching a
determination.
Done and Ordered in chambers, at Miami, Florida, on August 9, 2017.

______________________________
Robert N. Scola, Jr.
United States District Judge