RES-NV CHLV v. Rosenberg et al

Filing 51

MEMORANDUM DECISION granting without prejudice 36 Motion to Strike. Plaintiff shall submit an amended Declaration of Michael Strickland within thirty days of the date of this Order. Motion for Partial Summary Judgment 31 will remain taken under advisement during that time. Signed by Judge Dale A. Kimball on 11/20/2014. (jds)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

RES-NV CHLV, LLC,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.
Case No. 2:13CV115DAK
STEVEN R. ROSENBERG, ET AL.,
Judge Dale A. Kimball
Defendants.

This matter is before the court on Plaintiff’s Motion for Partial Summary Judgment and
Defendants’ Motion to Strike Paragraphs of the Declaration of Michael Strickland. On October
22, 2014, the court held a hearing on the motions. At the hearing, Plaintiff was represented by
Timothy J. Dance, and Defendant was represented by Korey D. Rasmussen. Having fully
considered the memoranda submitted by the parties and the facts and law relevant to these
motions, the court enters the following Memorandum Decision and Order.
The court begins its analysis with Defendants’ Motion to Strike Paragraphs of the
Declaration of Michael Strickland. Defendants seek to strike paragraphs 4 through 14 of the
declaration and paragraphs 2 through 12 of Plaintiff’s summary judgment fact section, arguing
that the declaration fails to provide the requisite foundation and cites to documents that are not in
the record. Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure provides that “[a] party
asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing
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to particular parts of materials in the record.” Plaintiff cites to several documents, such as the
loan agreement, note, trust deed, and loan amendment, that are not in the record. Plaintiff alleges
that it is not required to attach these types of documents to Strickland’s declaration because
Defendants have admitted to their existence and Rule 56(c) does not require documents referred
to in a declaration to be attached.
First, Defendants may have admitted to the existence of the documents, but that did not
place the documents in the record. The parties agree that the documents speak for themselves.
Agreeing that a document speaks for itself, however, does not provide foundation for a document
or place it in the record. In addition, because the documents have not been placed in the record,
the court has no ability to verify the information contained in the documents. See Powell v.
COBE Laoratories, Inc., 208 F.3d 227, *6 (10th Cir. 2000) (unpublished decision) (mere
reference to a document does not place it in record and does not give court access to language of
document).
Second, pursuant to Rule 56(c), the documents must be in the record to support summary
judgment. Plaintiff cites to language that does not require a document that is already a part of the
record to be attached again to a declaration that references such documents. The Advisory
Committee Notes to Rule 56 explain that the prior requirement to attach documents was removed
because it was redundant to attach a document already in the record. The change in the rule did
not do away with the general notion that summary judgment can only be supported by materials
in the record. The Committee Notes make this clear: “[m]aterials that are not yet in the
record–including materials referred to in an affidavit or declaration–must be placed in the
record.”
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Moreover, Strickland’s declaration does not provide adequate information to lay a
foundation for the documents. Strickland’s declaration states only his job title and the
conclusory statement that he has knowledge of the information in his declaration. Strickland’s
declaration does not explain the duties associated with Strickland’s job title or provide any
background information identifying how Strickland would have personal knowledge of any of
the facts relevant to this dispute. Plaintiff explained some of Strickland’s duties and involvement
in the case at oral argument on the motion, but that information is not in the declaration and not
information that could be commonly known. Plaintiff must include this type of information in
the declaration because it is necessary to lay an adequate foundation for the documents and facts
Plaintiff seeks to provide the court through Strickland.
Because of the deficiencies in the Strickland declaration, the court grants Defendants’
Motion to Strike. However, the court strikes the material without prejudice. Plaintiff may resubmit a new declaration of Michael Strickland within thirty days of the date of this Order. The
court will keep Plaintiff’s Motion for Partial Summary Judgment under advisement during that
time. The information contained in the stricken paragraphs relates too closely with the issues of
timing and intent relevant to the Motion for Partial Summary Judgment to allow the court to rule
on that motion before the deficiencies in the declaration are cured. After Plaintiff submits the
amended declaration, the court will issue its ruling on the Motion for Partial Summary Judgment
as soon as practicable.
CONCLUSION
Based on the above reasoning, Defendants’ Motion to Strike is GRANTED without
prejudice. Plaintiff shall submit an amended Declaration of Michael Strickland within thirty
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days of the date of this Order. Plaintiff’s Motion for Partial Summary Judgment will remain
under advisement during that time.
DATED this 20th day of November, 2014.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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