Bostic v. Lauragina Professional Transport, LLC et al

Filing 48

ORDER denying 35 Motion to Strike. Signed by Judge B. Avant Edenfield on 10/28/2014. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LATORA BOSTIC,
Plaintiff,
V

4: 14-cv-83

.

PROFESSIONAL
LAURAGINA
TRANSPORT, LLC; JOSEPH L.
PORTER, ST.; WE CARE
TRANSPORTATION, LLC; and
LOGISTICARE SOLUTIONS, LLC,
Defendants.
[I) 1 P] D

Before the Court is a motion by
LogistiCare Solutions, LLC ("LogistiCare"),
to strike Plaintiff Latora Bostic's affidavit.
ECF No. 35. For the reasons set forth
below, the Court DENIES LogistiCare's
Motion.
I. ADMISSIBILITY OF BOSTIC'S
AFFIDAVIT
LogistiCare initially argues that that
Bostic's affidavit is "inadmissible under
Rule 56(e) of the Federal Rules of Civil
Procedure." ECF No. 35-1 at 2. This is
incorrect for several reasons.
First, the Rules of Civil Procedure do not
govern admissibility; that role is reserved for
the Rules of Evidence, see Johnson v.
William C. Ellis & Sons Iron Works, Inc.,
609 F.2d 820, 821 (5th Cir. 1980).
Second, LogistiCare cites to an outdated
version of Federal Rule of Civil Procedure
56(e). See ECF No. 35-1 at 2. Rule 56(e)
has not discussed affidavits since the Federal
Rules of Civil Procedure were revised in

Fed. R. Civ. P. 56 advisory
2010.'
committee's note, 2010 amendments.
Finally, LogistiCare has given no
justification for striking Bostic's affidavit at
this stage of the case. Rule 56 governs the
summary judgment phase of litigation, see
Fed. R. Civ. P. 56, which has not been
reached in this case. In addition, each case
LogistiCare cites in support of its argument
involves matters at the summary judgment
phase. See, e.g., Evans v. Books-A-Million,
762 F.3d 1288, 1295 (11th Cir. 2014)
(discussing a "summary judgment
affidavit"). Here, no motions for summary
judgment have been filed. Therefore, the
provisions for striking affidavits in Rule 56
are not applicable here.
II. HEARSAY IN BOSTIC'S
AFFIDAVIT
LogistiCare also asks the Court to strike
paragraphs 18 and 19 because it argues that
they contain inadmissible hearsay under
Federal Rule of Evidence 801(c). ECF No.
35-1 at 7. Both paragraphs contain
statements made by LogistiCare's managers.
ECF No. 30-1 at 5.
Statements made by an opposing party
are not hearsay. Fed. R. Evid. 801(d)(2).
When the opposing party has agents or
employees, their statements are also not
hearsay, so long as they are "on a matter
within the scope of that relationship and
while it existed."
Fed. R. Evid.
801(d)(2)(D).
Given that the alleged
statements by LogistiCare's managers
concern
Bostic's
employment,
the
statements could fall within the scope of the
Rule 56(c)(4) does discuss the use of affidavits, but
only in the context of motions for summary
judgment. See Fed. R. Civ. P. 56(c)(4).

r

managers' employment. LogistiCare has not
offered any evidence to show that these
statements fall outside this exception; in
fact, LogistiCare has not even addressed
Rule 801(d)(2). Therefore, the Court
declines to strike these paragraphs at this
stage of the case.
LogistiCare also argues that paragraphs
18 and 19 should be stricken because Bostic
was not present when the managers'
statements were made. ECF No. 35-1 at 9.
LogistiCare is incorrect. Bostic testifies that
all matters in her affidavit "are made upon
[her] own personal knowledge." ECF No.
30-1 at 5. Therefore, the Court declines to
strike paragraphs 18 and 19 on this basis.

III. CONCLUSION
The Court DENIES
Motion to Strike.

LogistiCare's

This 2—'ay of October 2014.

X

B. A ANT EDENFIELDIJUDPOLURT
UNITED STATES DIS'kICT
SOUTHERN DISTRICT OF GEORGIA

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