Thompson et al v. City of Oakwood et al

Filing 64

ENTRY AND ORDER GRANTING DEFENDANTS' MOTION TO STRIKE 55 DECLARATIONS OF JASON THOMPSON (DOC. 52-1), TIMOTHY GWIN (DOC. 52-2), AND GAYLE HITES (DOCS. 52-3 and 36-1). Signed by Judge Thomas M. Rose on 3-1-2017. (de)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JASON THOMPSON and
2408 HILLVIEW, LLC,

:
Case No. 3:16-cv-169
:
:
Judge Thomas M. Rose
Plaintiffs,
:
:
v.
:
:
CITY OF OAKWOOD, OHIO, and
:
ETHAN KROGER,
:
:
Defendants.
:
______________________________________________________________________________
ENTRY AND ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE (DOC.
55) DECLARATIONS OF JASON THOMPSON (DOC. 52-1), TIMOTHY
GWIN (DOC. 52-2), AND GAYLE HITES (DOCS. 52-3 and 36-1)
______________________________________________________________________________
This case is before the Court on Defendants’ Motion to Strike (Doc. 55) the Declarations
of Jason Thompson (Doc. 52-1), Timothy Gwin (Doc. 52-2), and Gayle Hites (Docs. 52-3 and
36-1).

Plaintiffs filed these declarations in support of their pending Motion for Class

Certification and Amended Motion for Partial Summary Judgment. The Court therefore must
rule on whether the declarations should be stricken before it may rule on those motions.
Defendants argue that the declarations should be stricken for three reasons. First, they
argue that the declarations fail as a matter of law because they were not physically signed by the
declarants. Second, Defendants argue that Hites’ declaration should be stricken because she was
not identified as a witness in response to an interrogatory specifically requesting the
identification of all of Plaintiffs’ witnesses.

Third, Defendants object to portions of the

declarations on grounds of hearsay, lack of personal knowledge, and the assertion of legal
conclusions.

None of the declarations bears an actual, physical signature. Instead, each bears a
conformed signature, e.g. “/s/ Name”. The Court’s Local Rules provide that:
The actual signature of a Filing User shall be represented, for ECF purposes, by
“s/” followed by the typed name of the attorney or other Filing User. Signature in
such a manner is equivalent to a hand-signed signature for all purposes, including
Fed. R. Civ. P. 11 or any other rule or statute.
S.D. Ohio Civ. R. 83.5(c). “Filing Users” are attorneys admitted to the permanent bar of this
Court, attorneys admitted pro hac vice, and parties to an action who are not represented by
counsel. S.D. Ohio Civ. R. 83.5(b). As Thompson, Gwin and Hites are not “Filing Users” under
Local Rule 83.5, they are not authorized to sign documents using only a conformed signature.
Their declarations therefore do not constitute admissible evidence.
Plaintiffs argue that the declarants were permitted to use conformed signatures under 28
U.S.C. § 1746.

Section 1746 has nothing to do with the use of conformed signatures in

electronic filings. Section 1746 provides that an unsworn declaration has the same force and
effect as a sworn affidavit so long as the declaration is made under penalty of perjury and
verified as true and correct. Plaintiffs’ declarations contain the language required by Section
1746, but they are still improperly signed.
Defendants’ Motion to Strike the declarations of Thompson, Gwin and Hites is
GRANTED. In the interest of resolving this case on the merits, however, the Court will permit
Plaintiffs to re-submit the declarations with the declarants’ physical signatures. But for the
corrected signature blocks, the re-submitted declarations should be identical to the versions
stricken by this Order.
Striking the declarations does not resolve all of the issues raised by Defendants’ Motion
to Strike. Defendants were prejudiced by Plaintiffs’ submission of Hites’ declaration just before
the close of discovery, without having previously identified her as a witness. That prejudice will

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not be remedied by requiring Plaintiffs to re-submit the declarations. The Court therefore further
ORDERS that Defendants shall have 30 days from the entry of this Order to depose Ms. Hites.
Within 14 days of completion of that deposition, Defendants may submit a supplemental
memorandum addressing any new issues relevant to the declarations raised by the deposition of
Ms. Hites. The supplemental memorandum should not exceed 15 pages. Within 7 days after the
filing of Defendants’ supplemental memorandum, Plaintiffs may file a responsive memorandum
not to exceed 15 pages.
The Court need not rule on Defendants’ evidentiary objections to Plaintiffs’ declarations
at this time. The Court will rule on those objections when it considers the pending Motion for
Class Certification and the parties’ motions for summary judgment. If the Court finds that an
evidentiary objection is well-founded, it will simply exclude the particular assertion subject to
the objection from its consideration at that time.
DONE and ORDERED in Dayton, Ohio, this Wednesday, March 1, 2017.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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