Trustees of the Local 8A-28A Welfare Fund et al v. American Group Administrators et al
ORDER: Pursuant to the annexed Opinion and Order, Defendants' Motion to Strike 145 is denied. Ordered by Magistrate Judge Peggy Kuo on 8/25/2017. (Syed, Sofie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
TRUSTEES OF THE LOCAL 8A-28A
WELFARE FUND, and the 401(K)
AMERICAN GROUP ADMINISTRATORS,
OPINION AND ORDER
Peggy Kuo, United States Magistrate Judge:
Trustees of the Local 8A-28A Welfare Fund and the 401(k) Retirement Fund (together,
“Plaintiffs”) brought this action against American Group Administrators, Inc. (“AGA”), Lloyd
Goldstein, and various other Defendants under the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1105(a), 1109(a) and 1132(a)(2)-(3). (Compl., Dkt 1.) Plaintiffs moved for
partial summary judgment on their First and Sixth Claims. (See Dkt. 126.) AGA and Goldstein
(together, the “AGA Defendants”) moved for summary judgment on all claims. (Dkt. 131.) The
AGA Defendants moved to strike certain documents submitted by Plaintiffs in support of their
motion for partial summary judgment and in opposition to the AGA Defendants’ motion for
summary judgment. (See Mot. to Strike, Dkt. 145.)
The Honorable Roslynn R. Mauskopf has referred the Motion to Strike to the undersigned
for decision. (See April 26, 2017 Order.)
The AGA Defendants seek to strike three declarations submitted by Plaintiffs’ attorney
Danielle Carney (collectively, the “Declarations”). (See Carney Decl., Dkt. 127; Carney Opp’n Decl.,
Dkt. 134-2; Carney Reply Decl., Dkt. 143.) They also seek to strike Plaintiffs’ Rule 56.1 statements
on both motions for summary judgment (collectively, “Plaintiffs’ Rule 56.1 Statements”). (See Pls.
Rule 56.1 Stmt., Dkt. 126-2; Pls. Counter Stmt., Dkt. 134-1; Pls. R&Os, Dkt. 143-14.) They argue
that the Court should strike the Declarations in their entirety because Ms. Carney “has no personal
knowledge regarding the allegations in this action, or regarding any of the documents submitted by
[Plaintiffs],” and the Rule 56.1 Statements because they rely on the Carney Declaration, are
argumentative, and fail to cite to supporting evidence. (Mot. to Strike at 3-4.) The AGA
Defendants do not raise specific authentication objections to documents attached to the
Declarations. (Mot. to Strike at 2-3.)
In response, Plaintiffs explain the basis for Ms. Carney’s relevant personal knowledge and
the grounds for the authentication of exhibits attached to the Declarations. (See Pls. Resp., Dkt.
148.) Plaintiffs note that authentication is not in issue here because “almost all of the documents
cited by the Plaintiff[s] were also cited by the AGA Defendants and disclosed by the AGA
Defendants in discovery.” (Pls. Resp. at 2.)
Motions to strike are held to a high standard, as they are “generally disfavor[ed].” Pharmacy,
Inc. v. Am. Pharm. Partners, Inc., No. 05-CV-776 (DRH)(AKT), 2007 WL 2728898, at *1 (E.D.N.Y.
Sept. 14, 2007). Courts use “a scalpel, not a butcher knife” in resolving such motions. Id. (citing
Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001)).
Federal Rule of Civil Procedure 56 requires that any declaration supporting or opposing a
motion for summary judgment, including an attorney declaration, “be made on personal
knowledge.” See Fed. R. Civ. P. 56(c)(4); 11 James W. Moore et al., Moore’s Federal Practice
§ 56.94[a], at 56–245 (3d ed. 2011) (“an attorney’s affidavit or declaration is subject to the same
personal knowledge requirement as any other affidavit or declaration”). Attorney affidavits are
nevertheless allowed “a degree of latitude to characterize the evidence by informing the court of the
basis for the summary judgment motion and identifying the portion of the record counsel believes
demonstrates the absence of genuine issues of fact.” Pharmacy, Inc., 2007 WL 2728898, at *3
(discussing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). In addition, the parties’ factual
statements must be supported by citations to materials in the record, “including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.
R. Civ. P. 56(c)(1)(A).
A document may be authenticated by the testimony of a witness with knowledge of the
document. See Fed. R. Evid. 901(b)(1). The standard for authentication is satisfied “if a reasonable
juror could find in favor of authenticity.” Jenkins v. Portfolio Recovery Assocs., LLC, No. 14-CV-3532
(SJF)(AKT), 2017 WL 1323798, at *4, n.4 (E.D.N.Y. Feb. 13, 2017) (citation omitted). Certain
categories of evidence are considered “self-authenticating; they require no extrinsic evidence of
authenticity in order to be admitted.” See Fed. R. Evid. 902.
The AGA Defendants argue that Ms. Carney “has no personal knowledge regarding the
allegations in this action or regarding any of the documents submitted by [Plaintiffs].” (Mot. to
Strike at 3.) The Motion to Strike advances two related arguments with regard to personal
knowledge. The first is that certain statements made within the text of the Declarations themselves
are not based on Ms. Carney’s firsthand experience with the content described. The second is that
Ms. Carney does not have sufficient personal knowledge to authenticate and introduce into the
record the documents attached to the Declarations.
The AGA Defendants move to strike various statements in the Carney Declaration and
Carney Reply Declaration that concern Ms. Carney’s representation of Plaintiffs. (Mot. to Strike at
3.) These include introductory paragraphs stating the purposes of the Declaration and Plaintiffs’
motion for summary judgment, describing the claims asserted by Plaintiffs in the Complaint, and
asserting that Plaintiffs are an employee benefit fund within the meaning of ERISA. (See Carney
Decl. ¶¶ 2,4, 6.) None of these statements are argumentative or speculative; all are within the
attorney’s personal knowledge given her role in this action. See Menlo v. Friends of Tzeirei Chabad in
Israel, Inc., No. 11-CV-1978 (JPO), 2012 WL 137504, at *3-5 (S.D.N.Y. Jan. 17, 2012) (an attorney’s
description of a client’s decision to move for summary judgment falls within their personal
knowledge). Accordingly, these statements will not be stricken.
The AGA Defendants seek to strike portions of all three Declarations discussing and
attaching deposition testimony taken in this action, including the deposition of Lloyd Goldstein.
(Mot. to Strike at 3.) Rule 56(c)(1)(A) specifically contemplates the inclusion of deposition
testimony in the summary judgment record, along with materials such as affidavits, declarations, and
interrogatory answers. The AGA Defendants do not contest the authenticity of the transcripts or
Ms. Carney’s presence at the depositions. See Stepski v. M/V NORASIA ALYA, No. 06-CV-01694,
2010 WL 6501649, at *5 (S.D.N.Y. Jan. 14, 2010) (finding that attorneys had personal knowledge of
depositions and their affidavits were therefore proper).
In fact, the AGA Defendants’ own exhibits include these same deposition transcripts, along
with documents authenticated through those depositions and minutes of Trustee meetings. (See, e.g.,
Habas Decl., Dkt. 131-1.) The AGA Defendants cannot attest to the authenticity of the documents
they introduce as exhibits yet question the authenticity of those same documents when submitted by
Plaintiffs’ counsel. Similarly, where Plaintiffs’ exhibits are documents produced by the AGA
Defendants in discovery, bearing an “AGA” Bates-stamp (see, e.g., Dkts. 128-6, 130-4), the AGA
Defendants cannot credibly question their authenticity. See Faulkner v. Arista Records LLC, 797 F.
Supp. 2d 299, 307 (S.D.N.Y. 2011) (where “Plaintiffs produced the documents and are thus in the
best position to know whether they are indeed authentic” such an argument “teeters on the edge of
Furthermore, personal knowledge is one, but not the only, method of authentication. See
Fed. R. Evid. 901(b). A document may be self-authenticating, for example. See Fed. R. Evid. 902.
Personal knowledge is applicable specifically where it is “essential to establish [an exhibit] is what it
purports to be—that it is authentic.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir.
2011) (internal citations omitted); see also Fed. R. Evid. 901 (“[t]o satisfy the requirement of
authenticating . . . an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is,” including but not limited to “testimony of a
witness with knowledge”). When there is good reason to believe that the authenticity of documents
is not in issue, Plaintiffs’ attorney may enter those documents into the record.
It is well-established that courts may “simply decline to consider those aspects of a
supporting affidavit that do not appear to be based on personal knowledge or are otherwise
inadmissible.” Doe v. Nat’l Bd. of Podiatric Med. Exam’rs, No. 03-CV-4034 (RWS), 2004 WL 912599,
at *4 (S.D.N.Y. Apr. 29, 2004) (collecting cases). This approach is preferable to striking an affidavit,
as it allows the court to “resolve parties’ claims on the merits, rather than to dispose of them based
on procedural default.” Hughes v. Lebron, No. 14-CV-9479 (PAE), 2016 WL 5107030, at *5 n.5
(S.D.N.Y. Sept. 19, 2016). To the extent any statements in a Declaration mischaracterize the
attached exhibits, the Court will disregard those statements and consider the exhibits themselves.
Rule 56.1 Statements
The AGA Defendants contend that Plaintiffs’ Rule 56.1 Statement should be stricken
because it (1) is “entirely argumentative” and (2) relies “almost exclusively” on the Carney
Declaration as support. (Mot. to Strike at 3.) As with the Declarations, the Court will disregard any
non-factual statements in Plaintiffs’ Rule 56.1 Statement. See Smeraldo v. City of Jamestown, 512 F.
App’x 32, 34 (2d Cir. 2013) (upholding a district court’s decision to treat attorney affidavits as
argument and rely on the attached exhibits); Hughes, 2016 WL 5107030, at *5 n.5 (declining to strike
attorney affirmation and instead treating “argument” section as an opposition brief). The second
argument is also rejected for the reasons discussed above permitting documents to be introduced
through attorney declarations.
The AGA Defendants argue that Plaintiffs’ Counter Statement does not cite any supporting
evidence, in violation of Local Rule 56.1(d), which requires Rule 56.1 statements to be “followed by
citation to evidence which would be admissible.” See Local Civ. R. 56.1(d). The paragraphs
identified by the AGA Defendants do not require citations, as they either admit the AGA
Defendants’ statements or deny their “relevancy and materiality.” The Court views the latter
responses as admissions and disregards any accompanying commentary.
Finally, the AGA Defendants argue that Plaintiffs’ Objections and Responses to AGA’s
Counter Statement (“R&Os”) should not be allowed because they “improperly seek to rebut AGA
Defendants’ Response to 56.1 Statement, which is not authorized by Local Rule 56.1.” (Mot. to
Strike at 4.) While R&Os to counter statements are not explicitly authorized, Defendants also
submitted R&Os. (See Dkt. 144-3.) Since both parties have submitted R&Os and the Court has
“broad discretion to determine whether to overlook a party’s failure to comply with local court
rules,” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001), the Court declines to find that
Plaintiffs’ R&Os are improper. See CCM Rochester, Inc. v. Federated Inv’rs, Inc., No. 14-CV-3600
(VEC), 2017 WL 564063, at *1 n.1 (S.D.N.Y. Feb. 10, 2017) (citing to R&Os to counter statement
as part of summary judgment record).
To the extent that Plaintiffs cite to case law in the R&Os, that is inappropriate. The Court
disregards any legal arguments in the 56.1 Statements; such arguments should be limited to the
memoranda of law. See Fed. R. Civ. P. 56(e); Local Civ. R. 56.1. In deciding the summary judgment
motions, the Court will assess whether the parties’ factual statements are supported by evidence in
the record, rather than rely on the parties’ characterizations.
In light of the foregoing, the Motion to Strike is denied.
United States Magistrate Judge
Brooklyn, New York
August 25, 2017
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