Cosme-Montalvo et al v. Trafon Group, Inc.
Filing
79
OPINION AND ORDER granting in part and denying in part 56 Motion to Strike. Defendant is granted until April 23, 2013, at 6:00 p.m. to authenticate its independent auditor's reports and income tax returns for 2009 and 201 0 (D.E. 62-1 to -4) and clarify what evidence, if any, it has in support of Proposed Fact No. 11. Plaintiffs are granted until April 24, 2013, at 6:00 p.m. to respond to defendant's Proposed Fact No. 11, which should be identical to the one presently before the court but for the citations in support of the same. Signed by US Magistrate Judge Marcos E. Lopez on 4/22/2013. (GDR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
SYLVIA Y. COSME-MONTALVO, et al.,
Plaintiffs,
v.
CIVIL NO.: 11-2197 (MEL)
TRAFON GROUP, INC.,
Defendant.
OPINION AND ORDER
Pending before the court is plaintiffs’ third motion to strike (D.E. 56) the exhibits
attached to defendant’s proposed statement of uncontested material facts, defendant’s financial
statements for 2009 and 2010, and an exhibit listing certain employees terminated by defendant
(“termination list”) (D.E. 22-9; 50-1; 50-2; 51-1 to -4; certified translation at D.E. 29-6).1 For
the reasons set forth below, plaintiffs’ motion is granted in part and denied in part.
I.
ANALYSIS
A.
Compliance with 28 U.S.C. § 1746
Plaintiffs first argue that the unsworn statements under penalty of perjury by Javier
Pietrantoni and Leyda Fresse do not conform to the requirements of 28 U.S.C. § 1746. (See D.E.
39-1; 51-1; 51-3). Nevertheless, defendant has subsequently submitted unsworn statements
under penalty of perjury which comply with statutory requirements. (See D.E. 60-1; 60-2). As
such, plaintiffs’ argument regarding statutory compliance is moot.
1
The prayer for relief in plaintiffs’ third motion to strike requests “that both statements and the documents attached
to the defendant’s new proposed statement uncontested facts and Exhibit 22-9 be stricken from the record.” (D.E.
56, at 10). By its terms, this appears only to include Docket Nos. 51-1 to -4 and 22-9. Nevertheless, because
plaintiffs also address defendant’s financial statements for 2009 and 2010 (D.E. 50-1; 50-2), plaintiffs’ motion will
be construed as requesting that said financial statements be stricken as well.
B.
Business-Record Exhibits
On March 14, 2013, in their first motion to strike (D.E. 33), plaintiffs requested that the
exhibits attached to defendant’s earlier proposed statement of uncontested material facts (D.E.
22; 22-1 to -10; certified translations at D.E. 29-1 to 7) be stricken. Plaintiffs filed a second
motion to strike defendant’s exhibits on March 21, 2013.
(D.E. 41).
Because defendant
submitted an affidavit (D.E. 39-1) supporting the authenticity of six of its exhibits (D.E. 22-2
to -4; 22-6; 22-9; 22-10; certified translations at D.E. 29-1 to -7), including the termination list,
plaintiffs’ first motion to strike was denied with respect to those exhibits. (D.E. 44). As such,
plaintiffs’ second motion to strike was found to be moot. (D.E. 46). Nevertheless, plaintiffs now
request again, in a third motion to strike, that the termination list be stricken under both Rules
803(6) and 1006 of the Federal Rules of Evidence.2 (See D.E. 56, ¶¶ 10, 31–34).
Under Rule 1006, plaintiffs argue that “defendant has not made available to them the
underlying documents in which the summary is based.” (D.E. 56, ¶ 34). Rule 1006, however,
applies specifically where “a summary” is being used “to prove the content of voluminous
writings.” Fed. R. Evid. 1006. Rather than a summary of other business records, the termination
list is itself being submitted as a business record. The termination list is “the writing[] at issue,
not [a] summar[y] of other evidence.” U-Haul Int’l, Inc. v. Lumbermens Mut. Cas. Co., 576
F.3d 1040, 1046 (9th Cir. 2009). In other words, “Rule 1006 does not apply” where “the
summaries themselves constitute[] the business records.” Id. (emphasis in original).
Plaintiffs simply assert that “[t]here is no doubt that Exhibit 9 is a summary from the
company’s records of all the employees that were allegedly laid off.” (D.E. 56, ¶ 33). Even
2
Effectively, because the court previously denied plaintiffs’ request, their renewed request is now considered to be a
motion for reconsideration, not a third motion to strike. “As a general rule, motions for reconsideration should only
be exceptionally granted.” Villanueva-Méndez v. Nieves Vázquez, 360 F. Supp. 2d 320, 323 (D.P.R. 2005), aff’d,
440 F.3d 11 (1st Cir. 2006).
2
assuming that Trafon Group, Inc., has other records of the employees who have been terminated,
this does not imply that the termination list itself is not also a business record. It is true that a
“[b]usiness records prepared solely for purposes of litigation lack trustworthiness.” United
States v. Miller, 771 F.2d 1219, 1238 (9th Cir. 1985). Nevertheless, plaintiffs do not expressly
argue, nor do they provide any evidence which would lead the court to believe, that the
termination list was prepared solely for purposes of litigation.
In contrast, defendant contends that the termination list is “a record or data compilation
… kept in the course of a regularly conducted business activity” and that “it was the regular
practice of [Trafon Group, Inc.,] to make the data compilation.” (D.E. 60, ¶ 42). To authenticate
ten exhibits, including the termination list, defendant has submitted a statement under penalty of
perjury by Leyda Fresse (“Fresse’s statement”). (D.E. 60-2).
Plaintiffs contend, however, that Fresse’s statement does not sufficiently authenticate the
termination list or the other business-record exhibits at issue here (D.E. 22-9; 50-1; 50-2; 51-2;
51-4; certified translation at 29-6). In particular, plaintiffs argue that Fresse “does not mention
her position in the company nor her duties,” “lay the foundation to establish her knowledge,”
“specifically mention the person or persons that made the records and their positions,” or
“specifically mention how each record constitutes a regular practice of the activity.” (D.E. 56, ¶¶
20, 22).
“The business-records exception removes the hearsay bar for records kept in the course
of a regularly conducted business activity if making the records is a regular practice of that
business activity, so long as ‘neither the source of information nor the method or circumstances
of preparation indicate a lack of trustworthiness.’” Jordan v. Binns, No. 11-2134, 2013 WL
3
1338049, at *10 (7th Cir. Apr. 4, 2013) (quoting Fed. R. Evid. 803(6)).3 Here, Fresse has clearly
stated under penalty of perjury that she is “an authorized custodian of the records for Trafon
Group, Inc.” (D.E. 60-2, ¶¶ 3(a), 4(a)). Fresse also stated that she “ha[s] authority to certify the
attached records.” (D.E. 60-2, ¶¶ 3(a), 4(a)). According to her statement, the ten exhibits,
including the termination list, were prepared and preserved “as a regular practice and custom …
by the personnel of Trafon Group, Inc. in the ordinary course of business at or near the time of
the acts or events reported thereon, and by a person or persons with knowledge of and a business
duty to record or transmit those matters.” (D.E. 60-2, ¶¶ 3(b)–(c), (e), 4(b)–(g)).
Plaintiffs have cited no authority to indicate that defendant is required by Rule 803(6) to
indicate a custodian’s specific position or duties, or list the particular persons who made the
records in question. Nor have plaintiffs asserted any reason to infer that “[]either the source of
information []or the method or circumstances of preparation indicate[s] a lack of
trustworthiness.” Fed. R. Evid. 803(6)(E). Thus, the business-record exhibits, including the
termination list, have been properly authenticated as a business record under Rule 803(6) by
Fresse’s unsworn statement under penalty of perjury. (D.E. 60-2).
C.
Statement of Javier Pietrantoni
Plaintiffs argue that the unsworn statement under penalty of perjury of Javier Pietrantoni
is “a self serving statement” containing “convenient generalizations, conclusory statements, and
inadmissible hearsay evidence.” (D.E. 56, ¶ 13). As plaintiffs concede, characterizing an
“affidavit[] as ‘self-serving’ misses the mark,” as “[a] party’s own affidavit, containing relevant
3
The business records exception to the rule against hearsay requires that “(A) the record was made at or near the
time by—or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a
regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making
the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute
permitting certification; and (E) neither the source of information nor the method or circumstances of preparation
indicate a lack of trustworthiness.” Fed. R. Evid. 803(6).
4
information of which he has first-hand knowledge, may be self-serving, but it is nonetheless
competent to support or defeat summary judgment.” Cadle Co. v. Hayes, 116 F.3d 957, 961 n.5
(1st Cir. 1997). Other than simply asserting that Pietrantoni’s statement contains generalizations
and mere conclusions, plaintiffs do not cite to any particular facts in the statement which should
be stricken on those grounds.
With respect to plaintiffs’ hearsay argument, Pietrantoni stated under penalty of perjury
that he had personal knowledge of each of the assertions he made in his statement. Moreover,
Pietrantoni’s statement details his duties as Senior Vice President of Marketing, Strategic
Planning, and Procurement, which included the personal recruitment of plaintiff, direct
supervision of plaintiff at all times during her employment, participation in the committee
determining which positions would be redistributed, merged, or eliminated, and the negotiation
of purchasing assets from Importers and Distributors, Inc. As such, plaintiffs have not shown
that Pietrantoni’s statement should be stricken on these grounds.
D.
Financial Statements
Plaintiffs argue that, because defendant’s financial statements from 2009 and 2010 were
not produced in discovery, they are barred by Rule 37(c) from citing to said documents. (D.E.
56, ¶¶ 23–30). In its response in opposition, defendant contends that it produced in discovery
independent auditor’s reports filed with the Puerto Rico Department of State and income tax
returns for 2009 and 2010. (D.E. 60, ¶ 10–11; see D.E. 62-1 to -4). According to defendant, the
independent auditor’s reports “are identical to the financial reports … except that the Reports
that were produced during Discovery did not include 3 pages.” (D.E. 60, ¶ 10; compare D.E.
50-1; 50-2 with D.E. 62-1; 62-2).
Thus, it is uncontested that pages five to seven of both exhibits containing defendant’s
financial statements (D.E. 50-1, at 5–7; 50-2, at 5–7) were not produced to plaintiffs in a timely
5
fashion during discovery, as they were not produced until April 8, 2013 (see D.E. 50)—that is,
after the motion for summary judgment was originally filed. The information cited by defendant
in its Proposed Fact No. 114—defendant’s alleged losses of $2,817,313 in 2009 and $6,334,719
in 2010—appear only on these six pages. Thus, defendant will not be permitted to cite to these
pages of the financial statements in support of its motion for summary judgment.
Defendant’s income tax returns for 2009 and 2010, however, were produced to plaintiffs
on February 8, 2013. (D.E. 78). Plaintiffs did not take “defendant’s deposition” until February
15, 2013.5 (D.E. 77, ¶ 8). Thus, defendant produced its tax returns for 2009 and 2010 before
defendant’s deposition and the filing of its motion for summary judgment, which occurred on
February 22, 2013. Moreover, the proper time to object to discovery disputes, which plaintiffs
were aware of in early February, is not two weeks before the commencement of trial. As such,
defendant will not be precluded from citing to its income tax returns on the grounds of
untimeliness.
II.
CONCLUSION
For the foregoing reasons, plaintiffs’ third motion to strike (D.E. 56) is GRANTED IN
PART and DENIED IN PART. The citations provided for Proposed Fact No. 11 of defendant’s
proposed statement of uncontested material facts (D.E. 51, ¶ 11) and pages five through seven of
defendant’s financial statements for 2009 and 2010 (D.E. 50-1, at 5–7; 50-2, at 5–7) are hereby
STRICKEN.6
Defendant is granted until April 23, 2013, at 6:00 p.m. to authenticate its
independent auditor’s reports and income tax returns for 2009 and 2010 (D.E. 62-1 to -4) and
clarify what evidence, if any, it has in support of Proposed Fact No. 11. Plaintiffs are granted
4
Proposed Fact No. 11 in defendant’s statement of uncontested material facts is the only proposed fact which cites
to defendant’s financial statements. (D.E. 51, ¶ 11).
5
Plaintiffs’ motion in compliance indicates that the deposition took place on February 15, 2012, but, in context, it
appears that the deposition took place on February 15, 2013. (Compare D.E. 77, ¶ 8, with D.E. 77, ¶¶ 4–7).
6
The text of Proposed Fact No. 11 itself—excluding the citations in support—is not stricken.
6
until April 24, 2013, at 6:00 p.m. to respond to defendant’s Proposed Fact No. 11, which should
be identical to the one presently before the court but for the citations in support of the same. The
other exhibits at issue (D.E. 22-9; 29-6; 51-2; 52-4; 60-1; 60-2) are not stricken. Plaintiffs shall
not file any additional motions to strike defendant’s proposed statement of facts in support of the
motion for summary judgment, with the sole exception of Proposed Fact No. 11 to the extent that
plaintiffs have new arguments that have not been made so far.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 22nd day of April, 2013.
s/Marcos E. López
U.S. Magistrate Judge
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