Patton et al v. Nike, Inc.
Filing
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MEMORANDUM OPINION AND ORDER - DENYING 15 Motion to Strike Evidence Attached to Defendant's Response to Plaintiffs' Motion to Join and Motion to Remand. Signed by Judge Amos L. Mazzant, III on 4/7/2015. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TROY AND LESLIE PATTON,
Individually and a/n/f of HUNTER
PATTON AND TANNER PATTON
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v.
NIKE, INC.
CASE NO. 4:14-CV-631
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion to Strike Evidence Attached to
Defendant’s Response to Plaintiffs’ Motion to Join and Motion to Remand (Dkt. #15). After
reviewing the motion, the response, and the relevant pleadings, the Court finds that the motion
should be denied.
BACKGROUND
On October 30, 2014, Plaintiffs filed their Motion to Join and Motion to Remand (Dkt.
#8). On December 1, 2014, Defendant filed its Response to Plaintiffs’ Motion to Join and
Motion to Remand (Dkt. #11). On December 8, 2014, Plaintiffs filed their reply (Dkt. #14) and
also filed their Motion to Strike Evidence Attached to Defendant’s Response to Plaintiffs’
Motion to Join and Motion to Remand alleging that Exhibits One through Four of Defendant’s
Response were inadmissible and should be struck by the Court (Dkt. #15). Defendant filed its
Response to Plaintiffs’ Motion to Strike on December 18, 2014 (Dkt. #16).
ANALYSIS
Exhibit 1—Declaration of Shelley Batten
Plaintiffs object to Defendant’s Exhibit 1 and request that the Court strike it from the
record. Plaintiffs allege that Exhibit 1 constitutes inadmissible hearsay and is being offered to
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prove the truth of the matter asserted (Dkt. #15 at p. 2). Defendant’s Exhibit 1 constitutes an
affidavit by Shelley Batten (“Batten” or “Batten Declaration”) about Academy’s lack of
knowledge regarding the alleged defect of the Nike shorts at issue (See Batten Declaration; Dkt.
#11-1 at ¶¶ 1, 6-10). Defendant contends that Exhibit 1 is admissible because the affidavit sets
forth matters within Batten’s personal knowledge (Dkt. #16 at p. 3).
Courts accept and consider affidavit evidence when ruling on motions for remand. See,
e.g., Lott v. Dutchmen Mfg., Inc., 422 F. Supp. 2d 750, 755 (E.D. Tex. 2006) (considering and
crediting affidavit testimony from defendant regarding knowledge of alleged defect at issue);
Garcia v. LG Electronics, Civ. A. No. B-11-61, 2011 WL 2517141, a *4 (S.D. Tex. June 23,
2011) (considering and crediting affidavits from retailer employees establishing that retailer was
innocent seller of allegedly defective product). However, statements must not constitute hearsay
and must be made from the affiant’s personal knowledge. FED. R. EVID. 602; 801-802; see
Everest Indemn. Ins. Co. v. Allied Int’l Emergency LLC, No. 4:08-CV-678-Y, 2009 WL
2030421, at *1 (N.D. Tex. July 14, 2009) (“Such statements which merely recount matters
within the affiant’s personal knowledge and do not include an assertion made by another or made
within a document are not hearsay.”) (citing Diamond Offshore Co. v. A & B Builders, 302 F.3d
531, 545 n. 13 (5th Cir. 2002)).
The Batten Declaration does not constitute hearsay. It contains no assertion made by
another person or made within a document. Additionally, it is based upon Batten’s personal
knowledge in her position at Academy as Division Merchandise Manager – Apparel (Dkt. #11-1
at ¶¶ 2-5). Because the statements are based on Batten’s personal knowledge and her own sworn
testimony, the affidavit does not constitute hearsay and Plaintiffs’ objection is overruled.
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Exhibit 2—Declaration of Kate Horspool
Plaintiffs object to Defendant’s Exhibit 2 and request that the Court strike it from the
record. Plaintiffs allege that Exhibit 2 constitutes inadmissible hearsay and is being offered to
prove the truth of the matter asserted (Dkt. #15 at p. 2). Defendant’s Exhibit 2 constitutes an
affidavit by Kate Horspool (“Horspool” or “Horspool Declaration”) regarding the lack of recall
notice, bulletin or any other communications from Nike to Academy or other sellers regarding
the alleged flammability or melting characteristic of the Nike shorts at issue (See Horspool
Declaration; Dkt. #16 at p. 4). Defendant contends that Exhibit 2 is admissible because the
affidavit sets forth matters within Horspool’s personal knowledge (Dkt. #16 at p. 4).
The Horspool Declaration does not constitute hearsay. It contains no assertion made by
another person or made within a document. Additionally, it is based upon Horspool’s personal
knowledge in her position as the Apparel Product Safety Manager for Nike (Dkt. #11-2 at ¶ 2-6).
Because the statements are based upon Horspool’s personal knowledge and her own sworn
testimony, the affidavit does not constitute hearsay and Plaintiffs’ objection is overruled.
Exhibit 3—Declaration of Jennifer Skeen and Exhibit 4—Declaration of Jonathan Stoessel
Plaintiffs object to Defendant’s Exhibits 3 and 4 and request that the Court strike them
from the record. Plaintiffs allege that Exhibits 3 and 4 constitute inadmissible hearsay and are
being offered to prove the truth of the matter asserted (Dkt. #15 at p. 2). Defendant’s Exhibit 3
constitutes an affidavit by Jennifer Skeen (“Skeen” or “Skeen Declaration”) regarding the lack of
certain content on Academy’s website. (See Skeen Declaration; Dkt. #16 at p. 4). Defendant’s
Exhibit 4 constitutes an affidavit by Jonathan Stoessel (“Stoessel” or “Stoessel Declaration”)
regarding an Under Armour line of products, whether Academy sells a particular Under Armour
product, and whether Academy has ever been required to sell any moisture wicking products
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with warnings regarding alleged flammability or melting (See Stoessel Declaration; Dkt. #16 at
p. 5). Defendant contends that the Exhibits are admissible because the affidavits set forth
matters within Skeen’s and Stoessel’s personal knowledge (Dkt. #16 at p. 4-5). The Court finds
that Plaintiffs’ objections to Exhibits 3 and 4 are rendered moot based upon the Court’s striking
of Exhibit B in Plaintiffs’ Motion to Join and Motion to Remand (Dkt. #12).
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CONCLUSION
Based on the foregoing, the Court finds that Plaintiffs’ Motion to Strike Evidence
Attached to Defendant’s Response to Plaintiffs’ Motion to Join Defendant and Motion to
Remand (Dkt. #15) is hereby DENIED.
SIGNED this 7th day of April, 2015.
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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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