Brazzle v. Washington City

Filing 105

MEMORANDUM DECISION granting in part and denying in part 82 Motion to Strike [76-8] Declaration of Jeff McKinney. Signed by Magistrate Judge Evelyn J. Furse on 09/14/2012. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ANDRE BRAZZLE,
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO STRIKE

Plaintiff,
v.
WASHINGTON CITY,

Case No. 2:09-cv-00074-EJF
Defendant.
Magistrate Judge Evelyn J. Furse

Before the Court is Defendant Washington City’s (“Washington City”) Motion to Strike
Portions of the Declaration of Jeffrey S. McKinney.1 The Court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to Civil Rule 7-1(f) of the Rules of
Practice for the United States District Court for the District of Utah, the Court has concluded that
oral argument is not necessary and will determine the motion on the basis of the written
memoranda. See DUCivR7-1(f). For the reasons stated below, the Court GRANTS IN PART
and DENIES IN PART the motion to strike.
Washington City seeks to strike portions of paragraphs 3, 4, 5, 9, 15, and 17 of the
Declaration of Jeffrey S. McKinney, which was submitted as an exhibit in support of Plaintiff’s
memorandum in opposition to Defendant’s Motion for Summary Judgment.2 “An affidavit or
declaration used to support or oppose a [summary judgment] motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or

1

See Dkt. No. 82.

2

See Dkt. No. 64.
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declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). The Court
addresses each paragraph at issue in turn.
Paragraph 3
Washington City seeks to strike the second sentence of the paragraph arguing that it is
conclusory and speculative with no specific facts to substantiate the assertion. The Court agrees.
Nothing in the statement indicates the foundation for the statement that Chief Keith and
Lieutenant Kantor moved Mr. McKinney off of Mr. Brazzle’s shift because they were friends.
The Court does not know whether Mr. McKinney was told that by the Chief and the Lieutenant
or that it is his opinion. While Federal Rule of Evidence 701 provides that the testimony of a
lay witness “in the form of an opinion” is admissible if the opinion “is (a) rationally based on the
witness’s perception and (b) helpful to clearly understanding the witness’s testimony or to
determining of a fact in issue,” the Court finds the statement conclusory and speculative. The
statement lacks foundation, as the declarant did not make the decision to move himself off of
Andre Brazzle’s shift. The statement fails to address the basis for declarant’s belief that he was
moved off of Andre Brazzle’s shift because they were friends. Without a basis set forth in the
affidavit, the Court cannot assess whether the opinion meets the Rule 701 standard. The Court
strikes this portion of the paragraph.
Paragraph 4
The Court strikes the paragraph. While the statement is the declarant’s opinion, see Fed.
R. Evid. 701, the Court finds the paragraph conclusory, lacking of specific facts to substantiate
the assertion and not “helpful to clearly understanding the witness’ testimony or to determining a
fact in issue.”

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Paragraph 5
The Court strikes the paragraph because it lacks context to substantiate the assertion and
facts sufficient to understand the relevance. At a minimum, the statement does not even indicate
who made the comments even by category, i.e., superiors, colleagues, members of the public,
etc. The Court is left to speculate, which it will not do.
Paragraph 9
The Court strikes paragraph 9 because it constitutes inadmissible hearsay. Hearsay is
inadmissible unless an exception applies. See Fed. R. Evid. 802, 803. Plaintiff argues that the
statement is not hearsay because he does not offer it for the truth of the matter asserted, and even
if considered hearsay, it falls under the present sense impression exception. The statement
offered is Mr. McKinney’s restatement of Mr. Brazzle’s statements that include a restatement of
what the Chief had told Mr. Brazzle at an earlier time. The statement appears to be offered for
the truth of the matter, the matter being why Mr. Brazzle did not report the incident. Therefore,
the statement does constitute hearsay and in parts constitutes double hearsay.
To qualify for the present sense impression exception the statement must describe or
explain an event or condition and must be made while or immediately after the declarant, Mr.
McKinney, perceived the event or condition. The conversation between Mr. McKinney and Mr.
Brazzle that forms the basis for the statement did not occur while or immediately after Mr.
Brazzle had the conversation with the Chief. Rather that conversation occurred when Mr.
Brazzle “was first hired.” Furthermore, Mr. McKinney did not perceive the conversation with
the Chief. Thus the statements about that conversation do not constitute a present sense
impression, and the exception therefore does not apply. See Fed. R. Evid. 803(1). Additionally,
Mr. McKinney’s restating of Mr. Brazzle’s out of court statement is not Mr. McKinney’s present

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sense impression of an event or condition. Mr. McKinney merely repeats his memory of Mr.
Brazzle’s statements, saying nothing about his own impression. Therefore the entire statement is
hearsay, and the Court strikes it.
Paragraph 15
The Court does not strike the fourth sentence of paragraph 15. The sentence is based on
Mr. McKinney’s opinion based on his perception as a witness having viewed the screen saver
and being present in the patrol room with the image on the computer screens. Thus under
Federal Rule of Evidence 701, the Court finds the testimony “rationally based on the witness’s
perception and [] helpful to clearly understanding of the witness’s testimony or to determining a
fact in issue.” Moreover, the opinion is helpful to the trier of fact as it may be relevant to, but
not limited to the negligence and severe and pervasive elements of the hostile work environment
claim. Additionally, the Court finds the fifth sentence sufficiently specific and again based on
McKinney’s opinion that he rationally bases on his perception as a witness.
Paragraph 17
The Court strikes the paragraph because it is inadmissible hearsay. Hearsay is
inadmissible unless an exception applies. See Fed. R. Evid. 802, 803. In this statement, Mr.
McKinney merely attempts to retell what Mr. Brazzle to him about what others said and did.
Thus the statement contains hearsay and double hearsay. As described with respect to paragraph
15, Mr. McKinney has not offered his present sense impression of anything. Further, the
paragraph offers nothing about the effect of the statements on Mr. McKinney. Thus they are
offered to show the truth of Mr. Brazzle’s statements about his own state of mind. For these
reasons, the Court strikes paragraph 17.

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For the reasons stated above, the Court GRANTS the motion as to paragraphs 3, 4, 5, 9,
and 17. The Court DENIES the motion as to paragraph 15.
SO ORDERED this 14th day of September, 2012.

BY THE COURT:

________________________________
EVELYN J. FURSE
United States Magistrate Judge

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