Smith et al v. Housing Authority of South Bend et al

Filing 108

OPINION AND ORDER denying 99 RULE 56 MOTION to Strike 92 Appendix, Exhibits H, I, and J only, Filed in Support of Motion for Summary Judgment by Defendant HASB filed by William Smith, Lubirta Smith. Signed by Judge Rudy Lozano on 6/2/2014. (kds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM SMITH AND
LUBIRTA SMITH
PlaintiffS,
vs.
HOUSING AUTHORITY OF
SOUTHBEND,
Defendant.

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CAUSE NO. 3:09-CV-330

OPINION AND ORDER
This matter is before the Court on “Plaintiffs’ Motion to
Strike Affidavits of David Fleckner and Linda Brownlee, with
Supporting Redacted Documents Filed in Support of Motion for
Summary Judgment, by Defendant Housing Authority of South Bend,”
filed by Plaintiffs, William and Lubirta Smith, on March 4, 2014
(DE #99.)

For the reasons set forth below, the motion is DENIED.

BACKGROUND
On December 20, 2013, Defendant, the Housing Authority of
South Bend (“HASB”), filed a motion for summary judgment.
#91.)

(DE

Among various other exhibits attached to its motion, HASB

included the Affidavit of David Fleckner (Ex. H; DE #92-8), the

Affidavit of Linda Brownlee (Ex. I; DE #92-9), and a copy of HASB’s
pest control records for the Smiths’ apartment units at 628 Western
Avenue (Ex. J; DE #92-10).1

In lieu of filing a response to HASB’s

summary judgment motion,2 Plaintiffs, William and Lubirta Smith
(collectively, “Plaintiffs”), filed the instant motion to strike
all three documents in their entirety because the pest control
records are presented in a highly redacted form.

In essence,

Plaintiffs argue that Federal Rule of Evidence 106 requires that
the aforementioned exhibits be stricken because the pest control
records violate the “rule of completeness.”

HASB disagrees and

argues that the redacted information, which it states pertains to
pest control records for other HASB tenants who are not parties to
this lawsuit, is irrelevant and that the request to strike is
overly broad.

ANALYSIS
Pursuant to Federal Rule of Civil Procedure 56(c)(2), “[a]
party may object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible in
1

In his affidavit, David Fleckner, the previous Manager of Maintenance
and current Manager of Planning and Development who states that he is familiar
with, has access to, and has reviewed HASB’s operations, policies and
procedures, and business records related to maintenance of the public housing
units, describes Exhibit J as “[a] true and correct copy of the pest control
records for [Plaintiffs’] units while they lived in [the building at] 628
Western.” (Ex. H, ¶¶ 2, 3, 17, 18; DE #92-8, pp. 1, 4.)
2

Plaintiffs asked for and were granted an extension of time to file
their response to the summary judgment motion within fourteen days of this
Court’s ruling on the motion to strike. (See DE #101.)

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evidence.”

Fed. R. Civ. P. 56(c)(2).3

An affidavit used to

support a motion for summary judgment is admissible if it is “made
on personal knowledge, set[s] out facts that would be admissible in
evidence, and show[s] that the affiant or declarant is competent to
testify on the matters stated.”

Fed. R. Civ. P. 56(c)(4).

While

most hearsay is inadmissible, records kept in the course of
regularly conducted business activity are excepted from the general
rule against hearsay as long as they meet certain conditions.
Fed. R. Evid. 803(6).

See

“Such records are presumed reliable because

businesses depend on them to conduct their own affairs, so there is
little if any incentive to be deceitful, and because the regularity
of creating such records leads to habits of accuracy.”

Jordan v.

Binns, 712 F.3d 1123, 1135 (7th Cir. 2013).
Plaintiffs do not argue that the affidavits (Exhibits H & I)
should be stricken because the affiants lack personal knowledge or
are incompetent to testify on the matters stated.

Nor do they

argue that pest control records (Exhibit J) should be stricken
because they contain inadmissible hearsay or lack authentication.4
3

However, the Seventh Circuit has recently clarified that, during the
summary judgment stage, parties may present “materials that would be
inadmissible at trial so long as facts therein could later be presented in an
admissible form.” Olson v. Morgan, --- F.3d ----, 2014 WL 1687802, *5 (7th
Cir. April 30, 2014) (emphasis in original).
4

Records of regularly conducted business activity are excepted from
the rule against hearsay if certain conditions of admissibility have been met
and as long as those conditions “are shown by the testimony of the custodian
or another qualified witness.” Fed. R. Evid. 803(6). To qualify as a
business record under Rule 803(6), “(1) the document must be prepared in the
normal course of business; (2) it must be made at or near the time of the
events it records; and (3) it must be based on the personal knowledge of the

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Rather Plaintiffs point out that Exhibit J contains numerous
redactions and argue that such redactions violate the rule of
completeness because they “do not know what information has been
redacted or why HASB redacted it.”

(DE #99, p. 2.)

They then go

on to argue that the redacted material is relevant because it
“‘explain[s] the admitted portion’ and ‘place[s] the admitted
portion in context.’”
The

Seventh

(DE #103, p. 3.)

Circuit

has

stated

that

under

the

rule

of

completeness, which is codified at Federal Rule of Evidence 106, “a
complete statement is required to be read or heard when it is
necessary to (1) explain the admitted portion, (2) place the
admitted portion in context, (3) avoid misleading the trier of
fact, or (4) insure a fair and impartial understanding.”

United

States v. Lewis, 641 F.3d 773, 785 (7th Cir. 2011) (emphasis added)
(internal quotation marks and citation omitted).

Portions of a

statement or document that “are neither explanatory of nor relevant
to the admitted passages” are not required to be admitted.

Id.

Here, HASB has designated Exhibit J, through the affidavit of
David Fleckner, as “[a] true and correct copy of the pest control
records for the [Plaintiffs’] units while they lived in 628
Western.”

(Ex. H, ¶ 18; DE #92-8, p. 4.)

The affidavit goes on to

state that the “[p]est control records from [Plaintiffs’] units do

entrant or on the personal knowledge of an informant having a business duty to
transmit the information to the entrant.” Datamatic Servs., Inc. v. United
States, 909 F.2d 1029, 1032 (7th Cir. 1990).

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not reveal a significant or frequent pest problem in either unit
and show HASB took prompt and appropriate action to exterminate the
pests when [Plaintiffs] complained.”

(Id. at ¶ 19; Id.)

The

affidavit then details the pest inspections and treatments for
Plaintiffs’ units throughout the years.

(Id. at ¶¶ 20-22, 24; Id.

at 4-5.) The affidavit does not mention any other specific unit or
tenant.

Exhibit J itself is consistent with the testimony set

forth in the affidavit.
redactions,

the

understandable.

While it is true that there are numerous

information

that

is

provided

is

clear

and

The bulk of the documents containing redactions

consists of spreadsheets entitled either “Pest Control Service
Results Report,” “Extermination Schedule,” or “Extermination For.”
(See

Ex. J, pp. 1-11, 14, 18-19, 21.)

These documents show column

headings at the top of the spreadsheet with information such as
address,

apartment

number,

treatment, and follow-up.

housekeeping,

refuse,

results,

Entire rows for both Plaintiffs’ units

are shown below the column headings, and various boxes are checked
off describing the conditions, results, and/or treatments.

(Id.)

There are also columns for comments within which hand written notes
appear for Plaintiffs’ units.

(Id.)

These documents do not

purport to be anything more or anything less than the pest control
records related specifically to Plaintiffs’ units.
Although

Plaintiffs

argue

that

the

redacted

material

is

necessary and relevant because it explains the admitted portion and

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places it in context, they do not elaborate on this assertion other
than to say that “[Plaintiffs] are pursuing a habitability claim
against HASB and HASB has apparently designated the unredacted
material as evidence supporting its motion for summary judgment.”
(DE #103, p. 3.)

They do not explain why they believe the

unredacted information is unclear or why the redacted material
(whatever it may be) is necessary to help explain or place the
unredacted information into context.
The Court is perfectly capable of viewing Exhibit J for what
HASB states it is . . . pest control records related to Plaintiffs’
units.

Plaintiffs are obviously free to include any redacted or

unredacted material related to HASB’s pest control procedures that
they deem relevant in their response to the motion for summary
judgment; what the Court will not do, however, is engage in belated
discovery disputes at this time.

Therefore, there is no need to

mandate the inclusion of the redacted material pursuant to the rule
of completeness, and there is certainly no need to strike all three
exhibits in their entirety as Plaintiffs request.5

5

Plaintiffs’ motion to strike is also overly broad. The affidavit of
Linda Brownlee (Exhibit I) does not even mention Plaintiffs’ pest control
records. Plaintiffs offer absolutely no reason whatsoever why the Court
should strike this document. Furthermore, only seven paragraphs of the
thirty-four paragraph affidavit of David Fleckner (Exhibit H) refer even
tangentially to Plaintiffs’ pest control records, yet Plaintiffs seek to
strike the entire document. The fact that Plaintiffs’ requests are overly
broad (and lacking in support and/or analysis) is reason enough to deny
motion.

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CONCLUSION
For the reasons set forth above, “Plaintiffs’ Motion to Strike
Affidavits of David Fleckner and Linda Brownlee, with Supporting
Redacted Documents Filed in Support of Motion for Summary Judgment,
by Defendant Housing Authority of South Bend” (DE #99) is DENIED.

DATED: June 2, 2014

/s/RUDY LOZANO, Judge
United States District Court

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