TUMPA v. IOC-PA-UC-RSM ENTERPRISES

Filing 54

MEMORANDUM ORDER granting in part and denying in part 49 Motion to Strike Affidavits of John E. Cmar, Dave Demko, and Frank Rusnock, filed in support of Plaintiffs Brief in Opposition to Defendants Motion for Summary Judgment as follows: (1) As t o the Affidavit of John E. Cmar, paragraphs 1, 3, 9, 11, and 13 are hereby stricken and shall not be considered in support of Plaintiffs opposition to the motion for summary judgment. Defendants motion to strike is denied as to the remaining paragrap hs of Cmars affidavit; (2) As to the Affidavit of Dave Demko, paragraphs 11, 16, 26, 27 and 30 are hereby stricken and shall not be considered in support of Plaintiffs opposition to the motion for summary judgment. Defendants motion to strike is de nied as to the remaining paragraphs of Demkos affidavit; (3) As to the Affidavit of Frank Rusnock, paragraphs 17, 20 and 22 are hereby stricken and shall not be considered in support of Plaintiffs opposition to the motion for summary judgment. Defendants motion to strike is denied as to the remaining paragraphs of Rusnocks affidavit. Signed by Magistrate Judge Lisa Pupo Lenihan on 8/14/18. (clh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT D. TUMPA,
Plaintiff,
v.
IOC-PA-US-RSM ENTRPRISES,
Defendant.

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Civil Action No. 2:17-cv-00625
Magistrate Judge Lisa Pupo Lenihan

ECF No. 49

MEMORANDUM ORDER ON DEFENDANT’S
MOTION TO STRIKE AFFIDAVITS OF CMAR, DEMKO & RUSNOCK
Currently pending before the Court is Defendant’s Motion to Strike the Affidavits
of John E. Cmar, Dave Demko and Frank Rusnock (ECF No. 49) filed in support of
Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment (ECF No.
42). Defendant asks the Court to strike these affidavits in their entirety because they
contain merely inadmissible conclusory and opinion statements not based on personal
knowledge, in violation of Rule 56(c)(4) of the Federal Rules of Civil Procedure.1 In
addition, Defendant submits that it was deprived of its opportunity to timely depose the
affiants to adequately probe their assertions in these affidavits, due to Plaintiff’s late
disclosure (i.e., after the close of discovery) of the affidavits.

Rule 56(c)(4) provides: “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.”
1

In response, Plaintiff argues that Defendant was well aware that the affiants may
be providing testimony in this case as early as December 4, 2017, as they were identified
in responses to interrogatories as individuals who may have discoverable information
about the subject matter at hand, and were identified as possible witnesses at trial, and
yet, Defendant chose not to depose them. As to the requirements of Rule 56(c)(4) for
affidavits, Plaintiff points out that each affiant has stated at the beginning of the affidavit
that the statements are “true and accurate to the best of my knowledge, information and
belief[,]” and therefore, are based on the affiants’ personal knowledge. Moreover,
Plaintiff submits that the statements in the affidavit establish each affiant’s relationship
or position to Plaintiff such that their statements were based on personal observations
and are readily susceptible of proof through oral testimony.2 Finally, Plaintiff argues
that the affiants’ statements are factual in nature and do not consist of inadmissible
conclusions or opinions.
After reviewing the parties’ submissions, the Court finds that the affidavits of
Cmar, Demko, and Rusnock are based on personal knowledge as the statements
contained in the affidavits establish their personal knowledge of the matters stated.
“Evidence to prove personal knowledge may consist of the witness’s own testimony. “
FED. R. EVID. 602. If the jury could reasonably find that the witness perceived the event,
the witness’s testimony should be admitted. United States v. Gerard, 507 F. App’x 218,

Plaintiff points out that he listed Cmar, Demko and Rusnock as possible witnesses at
trial in his responses to Defendant’s First Set of Interrogatories, Interrogatory No. 5, and
therefore, under Rule 56(c)(4), their statements are capable of being admissible.
2

2

222 (3d Cir. 2012) (citation omitted). In his affidavit, Mr. Cmar states that both he and
Plaintiff were dealers at Lady Luck Casino for a period of time in 2013 and as such, they
trained and worked together. For the most part, Cmar’s statements are based on
personal observations while he worked as a dealer. Mr. Rusnock’s statements are based
on what he observed during his supervision of Plaintiff, as well as his observations of
other employees whom he supervised, from 2013 through June 2016, as the Duel-Rate
Supervisor of Lady Luck Casino. Likewise, Mr. Demko’s statements are based on his
observations during his supervision of Plaintiff, as well as his observations of other
employees whom he supervised, during that same period, as the Assistant Shift
Manager of Lady Luck Casino. A jury could reasonably find that Mr. Demko possessed
knowledge of mistakes made by specifically identified employees and the disciplinary
action, if any, imposed on those employees, as a result of his supervision of Plaintiff and
the other identified employees. Therefore, the Court finds no merit to Defendant’s
argument that the affidavits should be stricken in their entirety because they are not
based on personal knowledge.
As to the admissibility of the affiants’ statements, for the most part, the statements
are based on the affiants’ personal observations. However, to the extent that the affiants’
statements are based on belief, or on information and belief, they may not be considered
in support of or in opposition to summary judgment. APT Pittsburgh Ltd. P’ship v. Lower
Yoder Twp., 111 F.Supp.2d 664, 669 (W.D.Pa. 2000) (citing 10B Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE § 2738, at 350-56
(1998)). Moreover, “[a]n affidavit that is essentially conclusory and lacking in specific
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facts is inadequate . . ..” Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir.1985) (internal
quotation marks omitted) (quoting Drexel v. Union Prescription Centers, Inc., 582 F.2d 781,
789-90 (3d Cir.1978)).
As to the admissibility of Mr. Cmar’s affidavit, the statement in paragraph 13 is
based solely upon his “belief” and, as such, may not be considered in opposition to
summary judgment. Therefore, the Court will strike paragraph 13 of Mr. Cmar’s
affidavit. Similarly, there does not appear to be any foundation for the statements in
paragraphs 9 and 11 other than speculation on Mr. Cmar’s part, and therefore, the Court
will strike paragraphs 9 and 11 of Mr. Cmar’s affidavit. In addition, paragraphs 1 and 3
will be stricken as not relating to the matters that are before the Court in Defendant’s
summary judgment motion.
Mr. Cmar’s statements in paragraphs 5 through 8 and 12 appear to be based on
his personal knowledge and perceptions of Plaintiff, and therefore, are likely admissible
as opinion testimony. With regard to opinion testimony, the court of appeals in Paton v.
La Prade opined:
Defendants attack the experts' affidavits as worthless because not
based on personal knowledge as required by Federal Rule of Civil
Procedure 56(e). The policy behind Rule 56(e) is “to allow the
affidavit to contain all evidentiary matters which, if the affiant were
in court and testifying on the witness stand, would be admissible as
part of his testimony.” 6 J. Moore, Federal Practice P 56.22(1), at
2812 (2d ed. 1974). Opinion testimony that would be admissible at
the actual trial may be submitted in an affidavit. Id. at 2812-13. . . .
More importantly where, as here, the affidavits are submitted to
oppose the grant of summary judgment, opinion evidence is
appropriately considered to support the existence of a disputed
issue of fact.

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Paton v. La Prade, 524 F.2d 862, 871 (3d Cir. 1975). Pursuant to Federal Rule of Evidence
701, opinion testimony from a lay witness is admissible if it is:
(a)
(b)
(c)

rationally based on the witness’s perception;
helpful to clearly understanding the witness’s testimony or
to determine a fact in issue; and
not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

FED. R. EVID. 701. The Court finds that the statements in paragraphs 5 through 8 and 12
appear to be rationally related to Mr. Cmar’s observations and perceptions as a dealer at
Lady Luck Casino, are helpful to determine an issue in fact, and do not constitute expert
testimony. Therefore, these statements would likely be admissible at trial and may be
considered in opposing summary judgment. The remaining paragraphs—2, 4, 10 and
12—are factual statements based on Cmar’s personal knowledge and observations and
would be admissible.
As to the admissibility of Mr. Demko’s affidavit, paragraphs 27 and 30 are based
on “belief,” and therefore, may not be considered in support of Plaintiff’s opposition to
summary judgment. The statement in paragraph 16 lacks any foundation, and the one in
paragraph 11 is vague. In addition, paragraph 26 should be stricken as conclusory
opinion testimony on an ultimate issue of fact. Javornick v. United Parcel Service, Inc., Civ.
A. No. 07-0195, 2008 WL 4462280, at *3 (W.D.Pa. Sept. 29, 2008). As such, the Court will
strike paragraphs 11, 16, 26, 27 and 30. On the other hand, paragraphs 4 through 6 and
25 of Mr. Demko’s affidavit would likely be admissible at trial as they constitute his
perception of Plaintiff and other employees based on his observations and professional
knowledge/skills as Assistant Shift Manager, and thus, would likely be admissible
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under Rule 701. Moreover, while Mr. Demko’s statements in paragraphs 7, 12, and 20
are somewhat conclusory, Demko supports those statements with specific examples of
financial infractions and describes the discipline, if any, given to specifically identified
employees—see paragraphs 10, 13-14, 17-19, 21-24. The Court does not find these
statements to be vague or devoid of factual support.3 As to paragraphs 8 and 9, a jury
could reasonably find that Demko possessed personal knowledge of the IOC’s
enforcement of its policies based on his position as Assistant Shift Manager, and on the
fact that he was aware of the number of points needed to terminate a dealer for financial
mistakes—see Demko Aff., ¶ 10. Therefore, paragraphs 8 and 9 would likely be
admissible. The remaining paragraphs—1 through 3, 15, 28 and 29—are factual
statements based on Demko’s personal knowledge and observations, and would also be
admissible.
As to the admissibility of Mr. Rusnock’s affidavit, paragraphs 2 through 44 are not
based on “beliefs” as Defendant contends, but rather are based on Rusnock’s
observations of Plaintiff as his supervisor. Similarly, paragraph 14 would likely be
admissible as it constitutes his perception of an employee based on his supervision of
her. Moreover, while Mr. Rusnock’s statements in paragraphs 5 and 10 are somewhat

Demko’s statements are distinguishable from those stricken in Javornick , 2008 WL
4462280, at *3, because Demko does not offer any opinion as to whether Plaintiff or the
other employees under his supervision should have received different disciplinary
treatment; rather, Demko describes the infraction and what discipline, if any, the
particular employee received.
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4Rusnock’s

affidavit contains two paragraph fours. Defendant does not distinguish
between the two, and neither will the Court.
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vague and/or conclusory, he supports those statements with specific examples of
financial infractions and describes the discipline, if any, given to specifically identified
employees—see paragraphs 6 through 9, 11 through 13, 15 and 16. As such, the Court
does not find these statements to be void of factual support.5 The remaining
paragraphs—1,2,18, 19 and 21—are factual statements based on Rusnock’s personal
knowledge and observations, and thus, would also be admissible.
On the other hand, paragraph 22 is based on Mr. Rusnock’s “belief,” and
therefore, may not be considered in support of Plaintiff’s opposition to summary
judgment. Moreover, the statement in paragraph 20 lacks any foundation, and
paragraph 17 should be stricken as conclusory opinion testimony on an ultimate issue of
fact. Javornick, 2008 WL 4462280, at *3. Accordingly, the Court will strike paragraphs
17, 20 and 22 of Mr. Rusnock’s affidavit.
Finally, the Court does not find any merit to Defendant’s argument that it was
deprived of an opportunity to timely depose the affiants due to the late disclosure of the
affidavits. Plaintiff identified the affiants as potential witnesses in his responses to
Defendant’s First Set of Interrogatories on December 4, 2017—see ECF No. 39-1 at 199200—and discovery remained open until 3/27/18, almost four months after receiving
Plaintiff’s responses identifying Cmar, Demko and Rusnock as potential witnesses.
Defendant could have deposed the affiants but chose not to do so. In addition,
Defendant could have requested an extension of the discovery deadline upon receiving a

5

See note 3, supra.
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copy of the affidavits on 3/26/18, but chose not to do so. As such, any prejudice to
Defendant is of its own making.
In consideration of the above findings, the Court issues the following Order:
AND NOW, this 14th day of August, 2018, IT IS HEREBY ORDERED that
Defendant’s Motion to Strike Affidavits of John E. Cmar, Dave Demko and Frank
Rusnock (ECF No. 49) is GRANTED IN PART and DENIED IN PART as follows:
1.

As to the Affidavit of John E. Cmar, paragraphs 1, 3, 9, 11, and 13 are

hereby stricken and shall not be considered in support of Plaintiff’s opposition to the
motion for summary judgment. Defendant’s motion to strike is denied as to the
remaining paragraphs of Cmar’s affidavit.
2.

As to the Affidavit of Dave Demko, paragraphs 11, 16, 26, 27 and 30 are

hereby stricken and shall not be considered in support of Plaintiff’s opposition to the
motion for summary judgment. Defendant’s motion to strike is denied as to the
remaining paragraphs of Demko’s affidavit.
3.

As to the Affidavit of Frank Rusnock, paragraphs 17, 20 and 22 are hereby

stricken and shall not be considered in support of Plaintiff’s opposition to the motion for
summary judgment. Defendant’s motion to strike is denied as to the remaining
paragraphs of Rusnock’s affidavit.
BY THE COURT:

LISA PUPO LENIHAN
United States Magistrate Judge
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