Greco v. Velvet Cactus, LLC et al

Filing 67

ORDER AND REASONS denying 40 Motion to Strike Exhibits attached to Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 6/27/14. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH RAYMOND GRECO, III

CIVIL ACTION

VERSUS

NO: 13-3514

VELVET CACTUS, LLC AND SCOTT
DICKINSON

SECTION: R

ORDER AND REASONS
Plaintiff Joseph Greco moves to strike a number of exhibits
attached to the motions for summary judgment of defendants Velvet
Cactus, LLC and Scott Dickinson.1 Greco also moves to strike
certain statements in defendants' statements of uncontested
material facts. For the reasons that follow, the Court DENIES
plaintiff's motion.

I.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) allows the court to

strike “from any pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed.
R. Civ. P. 12(f). A motion to strike under Rule 12(f) “is a
drastic remedy to be resorted to only when required for the
purposes of justice.” Augustus v. Bd. of Pub. Instruction of
Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962); see also
Kaiser Aluminum & Chem. Sales, Inc. V. Avondale Shipyards, Inc.,
677 F.2d 1045, 1057 (5th Cir. 1982)(“[M]otions to strike a
1

R. Doc. 40-1.

defense are generally disfavored, . . .”); Synergy Mgmt., LLC v.
Lego Juris A/S, No. 07–5892, 2008 WL 4758634, at *1 (E.D. La.
Oct. 24, 2008) (“Motions to strike made under Rule 12(f) are
viewed with disfavor by the federal courts, and are infrequently
granted.”). A motion to strike should be granted only when “the
allegations are prejudicial to the defendant or immaterial to the
lawsuit.” Johnson v. Harvey, No. 96–3438, 1998 WL 596745, at *7
(E.D. La. Sept. 8, 1998) (citation omitted). Immateriality is
established by showing that the challenged allegations “can have
no possible bearing upon the subject matter of the litigation.”
Bayou Fleet P'ship v. St. Charles Parish, No. 10–1557, 2011 WL
2680686, at *5 (E.D. La. Jul. 8, 2011) (citations omitted).
Disputed questions of fact cannot be decided on a motion to
strike. Gonzales v. State Farm Mut. Auto. Ins., No. 10–3041, 2011
WL 2607096, at *5 (E.D. La. July 1, 2011).

II.

EXHIBITS
A.

Exhibits 3 and 13

Exhibits 3 and 13 are depositions that were submitted in
compressed format. Plaintiff moves to strike them from the record
for failure to comply with the Court's October 10, 2013
scheduling order, which required that all deposition transcripts
be submitted in uncompressed format. Plaintiff's request is now

2

moot, as the Court permitted defendants to supplement the record
with uncompressed copies of both transcripts.2
B.

Exhibit 4

Exhibit 4 consists of a series of emails forwarded from a
Sprint phone number to defendants' attorney, Kate Brownlee.3 In
defendants' supplemental Exhibit 5, Dickinson declares under
penalty of perjury that each email contains a text message sent
either by Greco to Dickinson or vice versa.4 The emails do not
identify the author of each message or indicate the date on which
each message was sent.
Dickinson declares that his phone does not permit him to
print or take a "screen shot" of the text messages. He further
declares based on his personal knowledge that the text messages
contained in Exhibit 4 were sent between May 11, 2012 and March
13, 2013. During that period, Dickinson declares that Greco and
Dickinson sent each other at least 111 messages. In Dickinson's
declaration, he specifically identifies Greco as the author of 11
of the messages and provides the date on which each of the 11
text messages was sent.5 He bases these declarations on his
personal knowledge "based on [his] review of the text messages

2

R. Doc. 38-2; R. Doc. 43.

3

R. Doc. 28-5.

4

R. Doc. 38-2 at 16-17.

5

Id. at 17-19.
3

contained on [his] cell phone."6 Greco personally admitted to the
accuracy of 5 of the 11 text messages in the portion of his
deposition that was submitted by defendants.7 Moreover, Greco's
attorney questioned Dickinson about a number of Dickinson's
messages to Greco that were included in Exhibit 4,8 and Greco now
relies on Dickinson's acknowledgment that he sent those messages
in the opposition to summary judgment.9
Greco first argues that the entire set of messages is
irrelevant. Rule 401 provides that evidence is relevant as long
as it has probative value with respect to any fact of consequence
to the determination of the action. Fed. R. Evid. 401. Defendants
argue that the messages speak to the issue of whether the
allegedly harassing conduct was "unwelcome," as well as whether
it was "severe or pervasive." Both of these issues are elements
of Greco's claim of hostile work environment sexual harassment.
Each message whose author has not been identified in either
Dickinson's declaration, Dickinson's deposition, or Greco's
deposition lacks relevance for the purposes of defendants'
motions for summary judgment and will not be considered by the
Court in deciding defendants' motions for summary judgment.

6

Id.

7

R. Doc. 28-2 at 26-31.

8

R. Doc. 44-2 at 51-60.

9

See, e.g., R. Doc. 44 at 9-10.
4

Without knowing the identity of the author, those messages are
probative neither of Dickinson's conduct nor of Greco's
subjective response to Dickinson's alleged harassment.
Nonetheless, the messages are not the proper subject of a
motion to strike unless they "can have no possible bearing upon
the subject matter of the litigation." To the extent the messages
are otherwise admissible, defendants could establish their
relevance at trial by introducing testimony or other evidence of
the identity of their author.
Greco also argues that there is a lack of foundation for the
messages, but defendants' supplemental Exhibit 5, which is
Dickinson's sworn declaration, identifies the contents of the
emails and explains why they are presented in the format in which
they appear.
Greco further claims that the text messages are not
authenticated. But Rule 901(b)(1) provides that the testimony of
a witness with knowledge "that an item is what it is claimed to
be" satisfies the authentication requirement. Fed. R. Evid.
901(b)(1). Dickinson personally forwarded each text message from
his phone to Brownlee's email address. Accordingly, he has
personal knowledge of the authenticity of contents of the emails,
and his testimony identifying them as a series of text messages
between him and Greco suffices to authenticate them as such.

5

Greco also argues that the emails violate the Best Evidence
Rule, which provides that "[a]n original writing, recording, or
photograph is required in order to prove its content unless these
rules or a federal statute provides otherwise." Fed. R. Evid.
1002. Contrary to defendants' assertion, the Best Evidence Rule
does in fact apply to the text messages, because Dickinson's
personal knowledge of them is derived entirely from having viewed
them in his phone. Cf. United States v. Harry, 927 F. Supp. 2d
1185, 1227 (D. N.M. 2013) (applying best evidence rule to text
messages); 2 McCormick On Evid. § 233 (7th ed.) (citing State v.
Espiritu, 176 P.3d 885, 893 (Haw. 2008) (noting that the "best
evidence rule is "particularly suited" to electronic evidence and
admitting testimony about text messages under the best evidence
rule when original messages and cell phone were unavailable and
there was no evidence of proponent's bad faith)).
The purpose of the best evidence rule is to prevent
inaccuracy and fraud when attempting to prove the contents of a
writing. See United States v. Yamin, 868 F.2d 130, 134 (5th Cir.
1989) (holding that, in a prosecution for the sale of counterfeit
watches, it was not error to allow testimony regarding the
trademark on the watches rather than introducing the watches
themselves, in part because the purpose of the rule was not
violated) (citing Fed. R. Evid. 1001, advisory committee note).
That purpose is satisfied here. Dickinson states under penalty of

6

perjury that each email accurately reflects the contents of a
single text message. Moreover, plaintiff not only admits to the
accuracy of several of the messages in his deposition; he also
utilizes the very same exhibit as the basis for his deposition of
Dickinson concerning a number of the text messages. Indeed,
Exhibit 4 is the only possible source of the messages about which
Greco's attorney deposed Dickinson, because Greco replaced his
own phone shortly after filing his EEOC charge and claims to no
longer have a record of the messages.10 Greco, just like
defendants, relies heavily on deposition testimony concerning the
text messages in his opposition memorandum. Plaintiff cannot
seriously dispute the accuracy of the very exhibit on which he
relies, and in fact, he does not. Nowhere in his motion to strike
does Greco actually dispute the accuracy of the messages in the
exhibit.
Moreover, given the purposes of the Best Evidence Rule, it
is reasonable to conclude that the emails meet the definition of
an original. "For electronically stored information, "original"
means any printout — or other output readable by sight — if it
accurately reflects the information." Fed. R. Evid. 1001.
According to Dickinson's affidavit, the text messages essentially
were converted to email format for printing. As discussed above,
Greco cannot and does not dispute that the emails accurately

10

R. Doc. 28-2 at 33.
7

reflect the limited information they purport to display–not the
author or date of the messages, but their contents. Nor does
Greco indicate whether he believes the author and time stamp
would even be displayed on the same screen as the content of each
message. Accordingly, the Court concludes that it is appropriate
for both parties to rely on the emails as evidence of the content
of the messages themselves while relying on sworn statements and
deposition testimony for information regarding the author and
date of those messages.
Greco also argues that the messages are hearsay. To the
extent defendants seek to introduce messages authored by Greco
against him, they are the admissions of a party opponent and are
not hearsay. Fed. R. Evid. 801(d)(2). Messages sent by Dickinson
are Dickinson's own, out-of-court statements and would constitute
inadmissible hearsay if introduced by Dickinson at trial unless
they were not offered for the truth of the matter asserted or met
some exception to the hearsay rule. There was only one such
instance in the entirety of defendants' motions, however, and the
message was not offered for the truth but to demonstrate its
effect on Greco.11 It is plaintiff–not defendant–who relies on
messages sent by Dickinson in support of his arguments.

11

R. Doc. 28-1 at 10 (Greco to Dickinson: "U left yet?";
Dickinson to Greco: "Not going buddy."; Greco to Dickinson:
"Alrite bud. Next time.")
8

Accordingly, the Court denies plaintiff's request to strike
Exhibit 4.
C.

Exhibit 5

Plaintiff moves to strike the original Exhibit 5 because it
is an affidavit that was not notarized. This objection is moot in
light of the Court's order permitting defendants to file a
supplemental Exhibit 5, which is an unsworn declaration under
penalty of perjury pursuant to 28 U.S.C. § 1746.
D.

Exhibit 8

Plaintiff moves to strike Exhibit 8 as inadmissible hearsay.
The exhibit consists of several disciplinary writeups against
Greco that were completed by Aimee Sandrock, the General manager
of the Velvet Cactus.12 Based on Sandrock's affidavit,13 it
appears that the records would satisfy the requirements of the
business records exception to the hearsay rule. See Fed. R. Evid.
803(6). The Court denies this motion.
E.

Exhibit 9

Exhibit 9 is the Velvet Cactus Restaurant's employee
handbook. Plaintiff raises a litany of meritless objections to
its introduction into evidence: namely, that it "lacks
foundation, lacks authenticity, relevancy and its probative value
is substantially outweighed by its confusion of the issues, and
12

R. Doc. 28-9.

13

R. Doc. 28-11.
9

violates the Best Evidence Rule." Herb Dyer, one of the owners of
the Velvet Cactus, identified and authenticated the handbook in
his affidavit and establishes that it complies with the business
records exception to the hearsay rule.14 The relevance of the
handbook is beyond dispute, as it is clearly probative of the
existence of a sexual harassment policy at the Velvet Cactus.
Plaintiff disingenuously attempts to mislead the Court into
believing the handbook "was clearly published after the relevant
time period" because it contained a time stamp of May 29, 2013.
Herb Dyer indicated in his deposition that May 29 was the date on
which the document was last opened, not the date on which the
handbook was created. Plaintiff puts forth no evidence whatsoever
that refutes this assertion. In any event, doubts as to the date
on which the handbook was created go to the weight–not the
admissibility–of the evidence. Plaintiff is free to convince the
jury at trial that the handbook was created after he filed this
lawsuit.
Again, defendants are mistaken in their assertion that the
Best Evidence Rule does not apply. Herb Dyer's testimony
regarding the contents of the handbook is based not on
independent knowledge but on having previously read the
handbook.15 Nonetheless, Exhibit 9 complies with the Best

14

R. Doc. 28-16 at 2.

15

R. Doc. 45-2.
10

Evidence Rule. Rule 1001 defines an "original" of electronically
stored information to include "any printout–or other output
readable by sight–if it accurately reflects the information."
Fed. R. Evid. 1001. The "information" defendants seek to
introduce are the contents and existence of Velvet Cactus's
sexual harassment policy, not the date of the handbook's
publication, which arguably is not contained in the document.
If plaintiff truly believes that the handbook was first
published on May 29, 2013, then the proffered exhibit would most
certainly qualify as an original. And if the date listed at the
bottom of each page of the electronically stored handbook changes
each time the document is opened, it would be impossible for
defendants to produce an exhibit that contained the same "opened
on" date as the day it was first produced.16 Cf. Fed. R. Evid.
1004 (stating that an original is not required if it "cannot be
obtained by any available judicial process"). Plaintiff has not
introduced any evidence suggesting that Dyer was lying when he
testified that this date changes every time the document is
opened. Accordingly, the Best Evidence Rule does not render the
handbook inadmissible.

16

Dyer testified in his deposition that defendants did not
possess a PDF version of the document. R. Doc. 45-2.
11

F.

Exhibit 12

Exhibit 12 is a picture of the office door at the Velvet
Cactus, on which the company's sexual harassment policy
purportedly appears. Plaintiff argues in a conclusory fashion
that the photograph "is irrelevant, its probative value is
substantially outweighed by unfair prejudice and confusion, it
lacks foundation and it lacks authenticity." His primary
objection appears to be that the photo was taken in 2014.
Herb Dyer identified and authenticated the photograph in his
affidavit as accurately reflecting the appearance of the office
door since 2010.17 The photograph is clearly relevant and
probative both of the existence of the Velvet Cactus's sexual
harassment policy and of Greco's alleged awareness of it. Again,
a document such as a photograph can be authenticated by testimony
of a person with personal knowledge indicating that it is what it
is claimed to be.
Plaintiff argues that the photo is prejudicial and confusing
"to the extent it purports to reflect the state of the office at
a time other than the time the picture was taken." But the
photograph purports to reflect the appearance of its contents at
the time it was taken; only Dyer's statements in his affidavit
suggest that the photograph also serves as an accurate
illustration of the door's appearance since 2010. That plaintiff

17

R. Doc. 28-16 at 2.
12

disputes this fact is not a proper basis for striking the
photograph.
Finally, the Best Evidence Rule does not apply. Dyer states
in his affidavit that he has personal knowledge of the appearance
of the door; the photograph is merely an illustration. The
Advisory Committee's Note on Rule 1002 speaks directly to this
point:
The usual course is for a witness on the stand to identify
the photograph or motion picture as a correct representation
of events which he saw or of a scene with which he is
familiar. In fact he adopts the picture as his testimony,
or, in common parlance, uses the picture to illustrate his
testimony. Under these circumstances, no effort is made to
prove the contents of the picture, and the rule is
inapplicable.
Accordingly, plaintiff's Best Evidence argument is without merit,
and his motion to strike Exhibit 12 is denied.
G.

Exhibit 14

Exhibit 14 is the affidavit of Velvet Cactus employee
Freddie Martinez. Plaintiff moves to strike the affidavit in its
entirety because he believes it contains a single statement that
is based on speculation rather than personal knowledge. Martinez
asserts that "[s]ince Mr. Dickinson's return from his suspension
in February 2013, there has been no further inappropriate
behavior."18 The most obvious interpretation of this statement is
that Martinez has not personally witnessed any further

18

R. Doc. 28-15.
13

inappropriate behavior, and the Court construes it as such.
Accordingly, plaintiff's contention that the statement is based
on speculation is without merit.
H.

Exhibit 15

Exhibit 15 is Herb Dyer's affidavit. Again, plaintiff moves
to strike the entire affidavit based on certain statements he
believes are speculative and not based on personal knowledge.
Plaintiff inexplicably concludes that Dyer could not have
personal knowledge of whether the restaurant's sexual harassment
policy was posted on the office door because he did not have an
active managerial role there. It is undisputed that Dyer is an
owner of the Velvet Cactus and that he visited the restaurant.
Moreover, that plaintiff disagrees with Dyer is not a proper
basis for a motion to strike.
Plaintiff also objects to Dyer's statement that "White spoke
to four others who did not agree to have Dickinson reinstated."
White may have told Dyer that he spoke to four others, but that
does not mean that Dyer has personal knowledge as to whether
White actually did so. This statement is admissible for the
limited purpose of demonstrating that Dyer believed White spoke
to the others, a fact that is relevant to the sufficiency of
Dyer's response to the alleged harassment.
Regardless of the admissibility of this particular
statement, there is no need to strike Dyer's entire affidavit.

14

See White v. Wells Fargo Guard Servs., 908 F. Supp. 1570, 1584
(M.D. Ala. 1995)("The court notes that even if an affidavit does
contain some inadmissible material, the court is not required to
strike the entire affidavit. The court may strike or disregard
the inadmissible portions and consider the rest of the
affidavit.") (citations omitted).
I.

Exhibit 16

Exhibit 16 is a copy of the Facebook message Dyer posted on
the Velvet Cactus Employee Facebook Page. Plaintiff objects
without argument that it is not properly authenticated. Dyer
authenticated the exhibit in his affidavit.19
J.

Exhibit 20

Exhibit 20 is a copy of a Facebook message sent by Freddie
Martinez to Dyer on February 10, 2014 in which Martinez indicates
that he witnessed no further inappropriate conduct from Dickinson
after his suspension.20 Plaintiff contends that the exhibit is
irrelevant, that it is inadmissible hearsay, and that its
probative value is outweighed by its prejudicial effect and
danger of confusion.
The message is properly authenticated in Martinez's
affidavit.21 Defendants argue that the message is not hearsay

19

R. Doc. 28-16 at 1.

20

R. Doc. 28-21.

21

R. Doc. 28-15.
15

because it is a statement made by the declarant and because it is
a present sense impression, citing Fed. R. Evid. 803(1). The
hearsay rule applies to all out-of-court statements, even those
made by the testifying witness. Fed. R. Evid. 801. And the
present sense impression exception to the hearsay rule applies
only to statements that describe or explain an event or condition
as or immediately after the declarant perceives it. Fed. R. Evid.
803(1). The Facebook message speaks to Martinez's perception of
Dickinson's conduct over the court of an entire year and is not a
present sense impression. Accordingly, the Facebook message is
inadmissible to the extent it is being introduced for the truth
of the matter asserted. It is, however, admissible as non-hearsay
evidence for the limited purpose of demonstrating its effect on
Dyer. More specifically, Martinez's assurances that there had
been no other problems with Dickinson explain in part why Dyer
did not feel the need to take further action against Dickinson.
Finally, the message is in no way prejudicial to Greco, as
Greco himself admits that the allegedly harassing behavior
stopped after Dickinson's suspension. Moreover, Martinez's own
affidavit contains precisely the same information, based on
Martinez's personal knowledge.22

22

Id. at 1 (stating that "[s]ince Mr. Dickinson's return
from his suspension in February 2013, there has been no further
inappropriate behavior," and that the Facebook message "reflects
my opinion that Mr. Dickinson's inappropriate conduct has
stopped.").
16

K.

Exhibit 21.

Exhibit 21 is plaintiff's termination notice.23 Plaintiff
asserts without argument that it is hearsay. Aimee Sandrock, the
General Manager and the author of the notice, authenticates the
document in her affidavit as being made at the time of
plaintiff's termination. As such, the notice would fall under the
business records exception to the hearsay rule. Fed. R. Evid.
803(6).
L.

Exhibit 24

Exhibit 24 is a copy of plaintiff's complaint. Greco moves
to strike it as cumulative, as the complaint is already in the
record. Defendants merely provided a copy of the complaint for
the court's ease of reference. Greco's argument in favor of
striking the complaint is frivolous and a waste of the Court's
time.
M.

Exhibit 25

Exhibit 25 was a copy of plaintiff's W-2. Plaintiff moved to
strike it from the record because it contained personal
information and because he believed it was irrelevant. The Court
previously granted Greco's motion to strike the exhibit and
permitted defendants to replace it with a redacted copy of the
document.24 Therefore, the motion is moot except on the grounds
23

R. Doc. 28-22.

24

R. Doc. 38-2 at 37-38.
17

of relevance. The W-2 is probative of whether Dickinson was
Greco's employer, an essential element of the Title VII claim
that Greco asserted against Dickinson. Accordingly, the motion is
denied as to new Exhibit 25.

III. DEFENDANTS' STATEMENTS OF UNCONTESTED MATERIAL FACTS
Greco moves to strike numerous statements from Velvet
Cactus's Statement of Uncontested Material Facts. Greco's
objections are primarily minor disputes as to the proper way to
characterize the facts and as such are not a proper basis for a
motion to strike. Greco also repeatedly seeks to strike
statements that are supported by his deposition answers to
leading questions, despite the fact that Rule 611(c), the very
rule he cites, plainly permits the use of leading questions when
examining an adverse party.
Greco objects to Statement of Material Fact 13, which
states:
Subsequent to Dyer's Facebook post, Martinez and one
anonymous employee submitted letters to Dyer asserting their
dissatisfaction with Dickinson's behavior as the General
Manager.25
Greco argues that this statement is inadmissible, because it
relies on Exhibit 26,26

25

R. Doc. 28-29 at 2.

26

Greco mistakenly identifies the letter at issue as
Exhibit 16.
18

which contains a typewritten letter that does not contain
any markings to identify the date or author. As such, there
is no admissible evidence supporting the contention that the
letter was submitted to Mr. Dyer after a particular date.27
Defendants do not offer the letter for the truth of the
matters asserted therein. They simply offer it to explain the
effect it had on Dyer; that is, why he suspended Dickinson. That
it has no listed date or author is irrelevant. Dyer stated under
oath that he received it in response to his Facebook post,
thereby laying the foundation as to its origin. That plaintiff
inexplicably disputes its authenticity for the purposes of this
motion (while relying on its contents for the truth in his
opposition motion) is no basis for striking the exhibit.
Greco objects to Statement 12 because it relies on Exhibit
16, but the Court has determined that Exhibit 16 is not
inadmissible on the ground articulated by the plaintiff.
Greco objects to Statement 14 on the ground that it is
unsupported by the record evidence cited by defendant. Defendant
inadvertently cited Exhibit 3 instead of Exhibit 13, but the
latter properly supports the statement.
Greco objects to Statements 19-21 because they are supported
by Exhibit 15, but the portions of that exhibit on which the
statements rely are admissible, as discussed above.

27

R. Doc. 40-1 at 7.
19

III. CONCLUSION
For the foregoing reasons, plaintiff's motion to strike is
DENIED.

New Orleans, Louisiana, this ______ day of June, 2014.
27th

______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

20