Wajvoda v. Menards Inc
Filing
66
OPINION AND ORDER denying both 57 and 59 Motions to strike. Signed by Judge Rudy Lozano on 9/30/15. (mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BARBARA WAJVODA,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
MENARD, INC.
Defendant.
NO. 2:11-CV-393
OPINION AND ORDER
This matter is before the Court on the Motion to Strike
Transcript of Recorded Statement Marked as Exhibit D, filed by
the plaintiff, Barbara Wajvoda, on February 15, 2015 (DE #57),
and the Defendant’s Motion to Strike Affidavits of Plaintiff and
John Wajvoda, filed by the defendant, Menard, Inc., on February
23, 2015 (DE #59).
For the reasons set forth below, both motions
are DENIED.
BACKGROUND
On or about October 12, 2011, the plaintiff, Barbara Wajvoda
(“Plaintiff”), filed her complaint in the Porter Superior Court,
sitting in Valparaiso, Indiana, under cause number 64D01-1110-CT9854.
the
(DE #1.)
defendant,
The complaint alleges negligence on the part of
Menard,
Inc.
(“Defendant”),
arising
from
an
alleged slip and fall incident at a Menard’s store in Valparaiso,
Indiana.
(Id.)
On October 27, 2011, Defendant filed a petition
for removal on the basis of diversity jurisdiction.
(DE #2.)
On
April 3, 2012, Defendant filed a third party complaint against
Mistic, Inc., alleging that a snow removal agreement existed
between Defendant and Mistic, Inc. that directly involved the
Valparaiso, Indiana Menard’s store location on the date of the
incident in question.
(DE #13.)
On October 16, 2013, Mistic,
Inc. filed a motion for summary judgment in which it sought
dismissal from the suit pursuant to an arbitration agreement
between itself and Defendant.
(DE #36.)
In response, Defendant
filed a motion to stay the crossclaim pending arbitration.
#45.)
(DE
On February 3, 2014, Magistrate Judge Andrew P. Rodovich
denied Defendant’s motion to stay and recommend that its third
party complaint be dismissed without prejudice.
June
5,
Rodovich’s
2014,
this
Court
recommendation,
approved
denied
and
Mistic
(DE #49.)
adopted
Inc.’s
On
Magistrate
motion
for
summary judgment, and dismissed Defendant’s third-party complaint
against Mistic, Inc. without prejudice.
(DE #50.)
Subsequently, on January 5, 2015, Defendant filed a motion
for summary judgment against Plaintiff, arguing that there are no
genuine disputes remaining as to any material facts in this case.
(DE #54.)
Specifically, Defendant argues that summary judgment
is warranted because it is undisputed that the subject area of
the
fall
was
“clear
and
free
-2-
of
snow
and
ice,
after
the
plaintiff’s alleged fall” and because Plaintiff “cannot identify
on what she claims to have flipped.”
(Id. at 10.)
this
to
proposition,
Defendant
cites
In support of
Plaintiff’s
deposition
testimony as well as to a recorded statement of a phone call with
Plaintiff made the day after the alleged incident.
exhibits B & D.)
(See DE #54,
On February 5, 2015, Plaintiff filed a motion
to strike the aforementioned transcript of the recorded statement
marked as exhibit D.
(DE #57.)
Plaintiff argues that the
statement should be stricken because it is “incomplete, unsigned,
unauthenticated,
unsworn,
unverified,
and
contains
obvious
deletions” and because it is neither verified nor signed by
either Plaintiff or Defendant.
(Id.)
Additionally, Plaintiff
argues that the transcript is inadmissible hearsay in violation
of Federal Rule of Evidence 802 and should also be stricken
because it is not an original as required by Federal Rule of
Evidence 1002.
(Id.)
In response, Defendant filed the actual
audio recorded statement and an additional copy of the transcript
which is certified by David W. Rix, President of Administrative
Claim Service, Inc. and further authenticated by Bunny Dilworth,
the
employee
of
Administrative
Claim
Service,
transcribed the recorded statement of Plaintiff.
#61;
DE
#62-5,
exhibits
E
&
F.)
Inc.
who
(See DE #63; DE
Defendant
asserts
that
Plaintiff’s statements are admissible as party admissions under
-3-
Federal Rule of Evidence 801(d)(2)(A).
Plaintiff did not file a
reply.
The same day that she filed her motion to strike, Plaintiff
filed a response to Defendant’s motion for summary judgment.
#56.)
(DE
In it, she argues that genuine disputes exist in the
record that preclude summary judgment.
(Id.)
Specifically, she
argues that Plaintiff’s deposition testimony creates a dispute as
to whether Plaintiff can identify what caused her to fall, and
she also argues that disputes exist as to Defendant’s knowledge
of the conditions of the sidewalk.
(Id.)
In support of her
claims, Plaintiff attaches, among other documents, affidavits of
herself
and
of
exhibits 2 & 5.)
her
husband,
John
Wajvoda.
(See
DE
#56-1,
On February 23, 2015, Defendant filed a motion
to strike these affidavits.
(DE #59.)
In it, Defendant argues
that the Plaintiff’s affidavit should be stricken because it
directly contradicts prior sworn testimony and is inconsistent
with
Plaintiff’s
recorded
statement.
(DE
#59.)
Defendant
further argues that even if the statements are not inconsistent,
they should be stricken because they are only submitted to create
a “sham” dispute of material fact, they contain hearsay, are not
based
on
Defendant
personal
makes
knowledge,
arguments
and
as
to
are
speculative.
hearsay,
relevance,
(Id.)
and
inadmissible subsequent remedial measures with regard to John
Wajvoda’s affidavit.
(Id.)
Plaintiff filed a response to the
-4-
motion
to
strike
arguments.
(DE
on
(DE #64.)
#65.)
Thus,
March
12,
2015,
disputing
Defendant’s
Defendant filed a reply on March 23, 2015.
both
motions
to
strike
are
ripe
for
adjudication.
ANALYSIS
In reference to a motion for summary judgment, “[a] party
may object that the material cited to support or dispute a fact
cannot
be
evidence.”
presented
in
a
form
that
would
be
admissible
Fed. R. Civ. P. 56(c)(2) (emphasis added).
in
“In other
words, the Court must determine whether the material can be
presented
in
a
form
that
would
be
admissible
at
trial,
whether the material is admissible in its present form.”
not
Stevens
v. Interactive Fin. Advisors, Inc., 2015 WL 791384, *2 (N.D. Ill.
Feb. 24, 2015); see also Olson v. Morgan, 750 F.3d 708, 714 (7th
Cir. 2014) (“We note that the Federal Rules of Civil Procedure
allow parties to oppose summary judgment with materials that
would be inadmissible at trial so long as facts therein could
later
be
presented
in
an
admissible
form.”)
(emphasis
in
original).
As far as authentication is concerned, the Federal Rules of
Evidence
provide
simply
that,
“the
proponent
must
produce
evidence sufficient to support a finding that the item is what
the proponent claims it is.”
Fed. R. Evid. 901(a).
-5-
Rule 901
provides
several
examples
of
proper
authentication
methods,
including testimony of a witness with knowledge, expert or trier
of fact comparisons, distinctive characteristics, and evidence
about public records; the Rules acknowledge that the list is not
complete.
Fed. R. Evid. 901(b).
“Rule 901 requires only a prima
facie showing of genuineness and leaves it to the jury to decide
the
true
authenticity
and
probative
value
of
the
evidence.”
United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997).
Additionally, Rule 902 notes that certain evidence, including but
not
limited
to
certified
copies
of
public
records,
official
publications, newspapers and periodicals, commercial paper, and
certified domestic records of a regularly conducted activity, is
self-authenticating
and
requires
no
authenticity in order to be admitted.
extrinsic
evidence
of
Fed. R. Evid. 902.
The Seventh Circuit has noted that “[a]uthentication relates
only to whether the documents originated from [their purported
source]; it is not synonymous to vouching for the accuracy of the
information contained in those records,” and the “very act of
production
[i]s
implicit
authentication.”
United
States
v.
Brown, 688 F.2d 1112, 1116 (7th Cir. 1982); see also Kasten v.
Saint–Gobain Performance Plastics Corp., 556 F.Supp.2d 941, 948
(W.D. Wis. 2008) (rejecting authenticity challenge at summary
judgment
documents
as
disingenuous
produced
by
where
defendant
-6-
the
challenged
during
e-mails
discovery”);
“were
Fenje
v.
Feld,
301
produced
F.Supp.2d
by
an
781,
opponent
809
(N.D.
during
Ill.
2003)
discovery
may
(“[d]ocuments
be
treated
as
authentic.”); In re Greenwood Air Crash, 924 F.Supp. 1511, 1514
(S.D.
Ind.
1995)
(“Production
of
a
document
by
a
party
constitutes an implicit authentication of that document.”).
Here, to the extent that Plaintiff moves to strike the
transcript of the recording (originally submitted as DE #54,
exhibit D) on authentication grounds, that request is denied.
Defendant has since submitted additional information sufficient
to authenticate the transcript for purposes of summary judgment.
(See DE #63; DE #61; DE #62-5, exhibits E & F.)
Furthermore,
Defendant is correct in noting that the recorded statement and/or
transcript
is
801(d)(2)(A).
admissible
Finally,
as
a
a
party
duplicate
admission.
copy
of
the
See
FRE
recorded
statement and/or transcript is admissible to the same extent as
the original in this situation based on the reasoning described
above.
See FRE 1002 & FRE 1003.
Thus, Plaintiff’s motion to
strike (DE #57) is DENIED.
With regard to Defendant’s motion to strike, the Court has
reviewed the affidavits of Plaintiff and John Wajvoda in their
entirety as well as the deposition testimony in question and
finds that they should not be stricken.
It is the function of
the Court, with or without a motion to strike, to carefully
review
the
evidence
and
to
eliminate
-7-
from
consideration
any
argument,
conclusions,
of
and
assertions
record
offered
unsupported
by
the
in
of
the
documented
evidence
support
statement.
See, e.g., S.E.C. v. KPMG LLP, 412 F.Supp.2d 349, 392
(S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co.,
Inc., No. 04 C 5167, 05 C 2253, 2006 WL 980740, at *2 n.2 (N.D.
Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., No. 03 C 2249,
2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v.
Taylor, 324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004).
Motions to
strike are heavily disfavored, and are usually only granted in
circumstances where the contested evidence causes prejudice to
the moving party.
Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695
(N.D. Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303,
2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007).
When ruling on
the motion for summary judgment, the Court is capable of sifting
through the evidence and considering it under the applicable
federal rules and caselaw, giving each statement the credit to
which it is due.
Therefore, the motion to strike is DENIED as
unnecessary.
CONCLUSION
For the reasons set forth above, both motions to strike (DE
#57 & DE #59) are DENIED.
DATED: September 30, 2015
/s/ Rudy Lozano, Judge
United States District Court
-8-
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