United States, Ex Rel: Kelly Nicole Wuestenhoefer v. Jefferson et al

Filing 340

ORDER granting 334 Motion to substitute Affidavit; denying 243 Motion to Strike. Signed by District Judge Debra M. Brown on 12/16/14. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

UNITED STATES OF AMERICA ex rel
KELLY NICOLE HORTON
WUESTENHOEFER; and KELLY
NICOLE HORTON WUESTENHOEFER,
individually
V.

PLAINTIFF

NO. 4:10-CV-00012-DMB-DAS

A.J. JEFFERSON, et al.

DEFENDANTS

ORDER REGARDING PRYOR AFFIDAVIT
On August 21, 2014, in opposition to the motion for summary judgment filed by
Defendants Michael Lloyd and Lloyd and Associates, LLC, Plaintiff submitted an affidavit of
Angella Pryor, a Special Agent with the Office of Inspector General for the Department of
Housing and Urban Development (“HUD”). Doc. #227. In her affidavit, Special Agent Pryor
averred that Plaintiff provided her with “specific inside information which was the beginning of
[her] investigation” into embezzlement of HUD funds by Jimmy Johnson and Defendant Ann
Jefferson. Id. at ¶¶ 2–3. Pryor’s affidavit also represents that “[a]s a direct result of being
informed of Ms. Jefferson’s wrongdoing by [Plaintiff], HUD eventually conducted a Limited
Financial Assessment in 2011 ….” Id. at ¶ 9.
On September 12, 2014, Defendant South Delta Regional Housing Authority (“SDRHA”)
filed the instant motion to strike paragraph nine of Pryor’s affidavit on grounds that the
paragraph is speculative and not based on personal knowledge. Doc. #243. In response to the
motion to strike, Plaintiff submitted a supplemental unsworn affidavit in which Pryor declares
that:

I also reaffirm paragraph 9 of my first declaration. Based on the information I
developed during my investigation, I approached the Department to obtain their
assistance. That is not unusual in cases of this magnitude to seek the expertise of
others. At our meeting, it was decided the best assistance the Department could
provide me would be a Limited Financial Assessment of the Housing Authority.
If the Assessment states that it was conducted at the request of a HUD office, that
may be technically correct, but it was a direct result of my investigation and my
outreach to them for assistance.
Doc. #275-1 at ¶ 5.
On November 4, 2014, Plaintiff filed a motion to substitute Pryor’s supplemental
unsworn affidavit with a supplemental sworn affidavit. Doc. #334.
I
Motion to Substitute
Defendants have not responded to Plaintiff’s motion to substitute [334] within the time
allowed. Accordingly, the motion to substitute will be granted as unopposed. See L.U. Civ. R.
7(b)(3)(E) (“If a party fails to respond to any motion, other than a dispositive motion, within the
time allotted, the court may grant the motion as unopposed.”).
II
Motion to Strike
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, an affidavit “used to support
or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant … is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). “A district court may rely upon affidavits in the
summary judgment context where the affiants’ ‘personal knowledge and competence to testify
are reasonably inferred from their positions and the nature of their participation in the matters to
which they swore.’” Lohn v. Morgan Stanley, DW, Inc., 652 F. Supp. 2d 812, 823-24 (S.D. Tex.
2009) (quoting DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005)). Related to the
personal knowledge requirement, the Fifth Circuit has held that courts may not “allow the
2

admission of pure hearsay or speculation as evidence to avoid summary judgment.” Vance v. N.
Panola Sch. Dist., No. 98-60719, 189 F.3d 470, at *2 (5th Cir. July 16, 1999) (citing Salas v.
Carpenter, 980 F.2d 299, 305 (5th Cir. 1992)).
Here, paragraph 9 of Pryor’s affidavit states that HUD conducted a Limited Financial
Assessment (“LFA”) as a “direct result” of being informed by Plaintiff of Jefferson’s
wrongdoing. Doc. #227 at ¶ 9. In her notarized supplemental affidavit, Pryor clarified that her
knowledge of HUD’s motivation for conducting the LFA came from her attendance at the
meeting during which HUD decided to take the action. Doc. #334-1 at ¶ 5. Under these
circumstances, the Court concludes that it is reasonable to infer Pryor’s personal knowledge
regarding HUD’s motivation for conducting the LFA from her presence at the meeting at which
the decision was made.
Furthermore, while speculation is impermissible, “[c]ourts often have permitted lay
witnesses to express opinions about the motivation or intent of a particular person if the witness
has an adequate opportunity to observe the underlying circumstances.” Hansard v. Pepsi-Cola
Metro. Bottling Co., Inc., 865 F.2d 1461, 1466 (5th Cir. 1989). Here, Pryor had an opportunity
to observe and participate in the decision-making process surrounding the LFA. Accordingly,
her opinion regarding the motivation for the decision is not speculative. Id.
III
Conclusion
For the reasons above, Plaintiff’s motion to substitute [334] is GRANTED and
Defendant South Regional Housing Authority’s motion to strike [243] is DENIED.
SO ORDERED, this the 16th day of December, 2014.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

3