Guenther et al v. BP Retirement Accumulation Plan et al

Filing 40

ORDER AND OPINION denying 19 Motion to Strike.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiffs,
§
VS.
§
§
BP RETIREMENT ACCUMULATION PLAN, §
et al,
§
§
Defendants.
§

November 29, 2016
David J. Bradley, Clerk

FREDRIC A GUENTHER, et al,

CIVIL ACTION NO. 4:16-CV-995

ORDER AND OPINION
Before the Court is Plaintiffs’ Motion to Strike Unauthenticated and Inadmissible
Exhibits Submitted by Defendants in Support of their Motion to Dismiss. (Document No. 19).
Defendants have filed a Response (Document No. 29) and the Declaration of Clifford York.
(Document No. 30). Having considered these documents and the relevant law, the Court finds
that Plaintiffs’ Motion (Document No. 19) will be denied.
The Defendants in this case have submitted a Motion to Dismiss (Document No. 15), to
which they attached Exhibits A-H. Although Plaintiffs admit that Exhibits E-H are documents
which the Court may judicially notice, Plaintiffs argue that Exhibits A-D are not properly
authenticated. (Document No. 19 at 3). However, along with their Response, Defendants have
filed the Declaration of Clifford York, which authenticates Exhibits A-C. (Document No. 30).
Therefore Plaintiffs’ argument as to the improper authentication of Exhibits A-C fails. See, e.g.,
Carrigan v. Live Oak Nursing Ctr., LLC, 2015 WL 6692199, at *2 (S.D. Tex. 2015).
Furthermore, Exhibit D is “Data Showing the 30-Year Treasury Bill Interest Rate on or about
January 1, 1989.” (Document No. 15-4). This historical interest rate data may be judicially
noticed under Fed. R. Evid. 201(b), as a fact which “can be accurately and readily determined
1/3

from sources whose accuracy cannot reasonably be questioned.”
Next Plaintiffs argue that Exhibit B should also be stricken because it is undated, “is an
alternative factual argument requiring the Court to conduct factual analysis,” and does not
address the claims of Plaintiff Fujimoto. (Document No. 19 at 4). Plaintiffs also add that Exhibit
B is not the correspondence referenced in their Complaint. Id. at n. 12. First, the Declaration of
Clifford York provides the date of Exhibit B: “on or about June 1989.” (Document No. 30 at 2).
Second, Exhibit B is admissible because it is a communication with a plan participant. Plaintiffs
make several allegations throughout their Complaint that BP made false and misleading
statements in their communications with plan participants. (Document No. 1). Exhibit B can be
“considered part of the pleadings,” because it is one of the communications “referred to in the
plaintiffs’ complaint” and is “central” to Guenther’s claims. Burgos v. Grp. & Pension
Administrators, Inc., 286 F. Supp. 2d 812, 815 (S.D. Tex. 2003). Although Exhibit B may not be
the one of the specific communications quoted in the Complaint, it remains relevant as one of the
many communications on which Plaintiffs base their claims. See R2 Investments v. Phillips, No.
CIV.A. 302CV0323N, 2003 WL 22862762, at *4 (N.D. Tex. Dec. 3, 2003) (“When portions of a
statement are discussed in a complaint, the court can consider the statement in its entirety when
deciding a motion to dismiss.”). Finally, to the extent Exhibit B is not relevant to Fujimoto, the
Court can consider it only as it relates to Guenther. Therefore all of Plaintiffs’ arguments fail,
and Exhibit B will not be stricken.
Finally Plaintiffs argue that a Houston Chronicle Article cited in Defendants’ Motion to
Dismiss should be stricken. (Document No. 15 at 1). The article is merely included in the
background section of the Motion to Dismiss, however, and is not provided for any reason other
than to provide context. Striking this quotation is unnecessary, as it is not provided as evidence.
2/3

Although Plaintiffs complain that the “sole purpose of the improper quotation is to argue factual
issues,” the Court disagrees, and will consider it only as background.
For the foregoing reasons, the Court hereby
ORDERS that Plaintiffs’ Motion (Document No. 19) is DENIED.
SIGNED at Houston, Texas, this 29th day of November, 2016.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

3/3