Rogers et al v. Fukase et al
Filing
201
ORDER DENYING THIRD-PARTY DEFENDANTS' MOTION TO STRIKE 198 . Signed by JUDGE ALAN C KAY on 7/18/11. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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)
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Plaintiffs, )
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vs.
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Makiko FUKASE, et al.,
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Defendants. )
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Henk ROGERS and Akemi ROGERS,
Civ. No. 10-00337 ACK-RLP
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)
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Third-Party Plaintiff, )
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vs.
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Hiroko OGIWARA, et al.,
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Third-Party Defendants.)
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Makiko FUKASE,
ORDER DENYING THIRD-PARTY DEFENDANTS’ MOTION TO STRIKE
On July 15, 2011, Third-Party Defendants Hiroko Ogiwara
and Shuko International Corporation filed a motion to strike two
documents filed by Defendant and Third-Party Plaintiff Makiko
Fukase in opposition to Third-Party Defendants’ motion for
summary judgment.
(“Motion,” ECF No. 198.)
Fukase has not yet
filed an opposition, but there is no need for her to do so.
The
Court has determined that this motion is suitable for decision
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without a hearing.
See LR7.2(d).
The Court will deny the
motion.
I. ANALYSIS
The motion to strike concerns two filings.
The first
is Fukase’s memorandum in opposition to Third-Party Defendants
motion for summary judgment.
(“Opposition Memo,” ECF No. 192.)
The second is Fukase’s opposition to the concise statement of
facts that Third-Party Defendants submitted alongside their
motion for summary judgment.
A.
(“Opposition CSF,” ECF No. 193.)
Timeliness
Third-Party Defendants’ primary argument is that both
filings should be stricken because they were filed after
midnight, rendering them untimely.
The Opposition Memo was filed
at 12:08 a.m. on July 14, 2011, so it was eight minutes late.
The Opposition CSF was filed ten minutes after midnight.
The
Court had noted the time of the filings, and finds that no party
was prejudiced by the ten-minute wait.
Indeed, Third-Party
Defendants have made no attempt to demonstrate prejudice.
The
Court will not strike the filings due to untimeliness.1/
1/
Third-Party Defendants also complain that Fukase did not
submit a pretrial statement on July 7, 2011, as apparently had
been ordered, off the record, by the magistrate judge’s chambers.
The Court issued a Second Amended Scheduling order on July 8,
2011, that set the deadline for pretrial statements as August 8,
2011. (ECF No. 187.) The previous scheduling order had not
contained a deadline for pretrial statements. (ECF No. 141.) To
the extent that Fukase’s failure to file a pretrial statement on
(continued...)
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B.
Location of Attachments
The next argument for striking the filings is that
Fukase attached exhibits to the Opposition Memo rather than to
the Opposition CSF.
(Motion at 4.)
The local rules specify that
exhibits “shall only be attached to the concise statement.”
LR56.1(h).
The Court had noted this violation of the local
rules, but the Court disagrees that the “practical prejudicial
effect of needlessly rendering both the Memorandum in Opposition
and SOF Reply much more difficult to track and follow” is so
severe that the filings should be stricken.
(Motion at 4.)
The
Court will not strike the filings on the basis of the incorrect
attachment of exhibits.
C.
Authenticity of Exhibits
Third-Party Defendants’ next argument challenges the
authenticity of certain of the exhibits that Fukase filed.
Here,
the Court must recognize the irony in the position taken by
Steven L. Goto, Third-Party Defendants’ attorney.
The motion
complains that Fukase “relies on her counsel’s recollection of
[certain] deposition testimony” where transcripts of that
testimony are not yet available.
(Motion at 5 n.2.)
“Absent the
transcript,” Goto writes, “there are no such admissible facts
1/
(...continued)
July 7 was in violation of an off-the-record order by the
magistrate judge, the Court finds that no other party was
prejudiced by the failure.
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before the Court.”
Yet in another case that was before this
Court just a few weeks ago, Goto relied on his own recollection
of deposition testimony where transcripts were not yet available.
The Court extended Goto the accommodation of allowing him to
supplement the record with transcripts before the hearing.
The
Court will extend the same accommodation to Fukase’s attorney
here.
Goto also claims that certain of Fukase’s exhibits,
which Fukase’s attorney has declared were “produced . . . in
response to a discovery request,” are insufficiently
authenticated to be considered on a motion for summary judgment.
Yet in the same case before this Court, Goto relied on evidence
that he could not authenticate beyond declaring that it had been
produced in response to his discovery requests.
The Court
considered the evidence that Goto presented, and will now
consider the evidence that Goto opposes.
Specifically, Exhibits B and C were purportedly
produced by the plaintiffs in response to discovery requests.
(Squeri Decl. ¶¶ 5-6, ECF No. 192-2.)
Granted, Third-Party
Defendants did not themselves produce the documents contained in
those exhibits, but Plaintiffs purportedly did produce them, and
if there is any genuine question about their authenticity, that
question can be addressed before trial.
See Orr v. Bank of Am.,
NT & SA, 285 F.3d 764, 776 (“[W]hen a document has been
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authenticated by a party, the requirement of authenticity is
satisfied as to that document with regards to all parties,
subject to the right of any party to present evidence to the
ultimate fact-finder disputing its authenticity.”); id. at 777 &
n.20 (noting that documents produced by a party to an action in
discovery can be deemed authentic when offered by other parties
to that action).
The Court notes that it is unclear from the
record whose handwriting appears on Exhibits B and C.
From
context it appears to be that of one or both of the plaintiffs.
Fukase will be granted leave to supplement the record with
evidence that identifies the handwriting.
Exhibits M, N, and R were purportedly produced in
discovery by Third-Party Defendants themselves, and Third-Party
Defendants have neither denied that they produced the documents
nor challenged their authenticity.
Finally, Exhibit T, along with other deposition
excerpts that Fukase has submitted but Third-Party Defendants
have not challenged, does indeed lack the “reporter’s
certification and the names of the deponent and the action.”
Orr, 285 F.3d at 774.
Third-Party Defendants have made no
substantive challenge to the authenticity of the deposition
excerpts, which appear, in context, to be what they purport to
be.
If the parties cannot arrive at a stipulation as to the
excerpts’ authenticity, Fukase will be granted leave to
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supplement her exhibits with the necessary authenticating
information.
D.
Admissibility of Fukase’s Declaration
Third-Party Defendants also assert that Fukase’s
declaration is inadmissible because it is written in English,
which Fukase purportedly has difficulty reading or understanding.
(Motion at 8.)
But the declaration states that it was translated
in Japanese for Fukase to understand.
192-1.)
(Fukase Decl. ¶ 4, ECF No.
This is sufficient for the declaration to be considered.
Third-Party Defendants will have an opportunity to question
Fukase about her understanding of the relevant English documents,
such as the purchase contract, at trial.
Third-Party Defendants also complain that Fukase’s
declaration “is replete with conclusions and argument.”
at 10.)
(Motion
The Court is capable of distinguishing “factual
contentions” from “conclusions and argument.”
LR7.6.
To the
extent that Fukase’s declaration contains the latter type of
statements, the Court will disregard those statements.
II. CONCLUSION
The parties are reminded that there are at least
nineteen separate claims in this action by the various parties
against each other.
The parties are strongly advised to
stipulate to the authenticity of evidence before trial where
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there is no genuine dispute as to authenticity, and to otherwise
limit the controversy to matters that are genuinely disputed.
For the foregoing reasons, the Court DENIES Third-Party
Defendants’ Motion to Strike.
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, July 18, 2011.
________________________________
Alan C. Kay
Sr. United States District Judge
Rogers v. Fukase, Civ. No. 10-00337 ACK-RLP: Order Denying Third-Party
Defendants’ Motion to Strike
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