Burton v. Salt Lake County et al

Filing 61

MEMORANDUM DECISION AND ORDER granting 54 Defendants' Motion to Strike. The Court will disregard portions of Plaintiff's Affidavit (Docket No. 50 , Ex. 6) that conflict with Plaintiff's deposition testimony. Signed by Judge Ted Stewart on 8/17/2017. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JANENE BURTON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION TO STRIKE

v.
JORDAN SCHOOL DISTRICT, a
subdivision of the State of Utah;
ANTHONY GODFREY, in his individual
and official capacities; LAWRENCE
URRY, in his individual and official
capacities; and JOHN DOES 1-5,

Case No. 2:15-CV-766 TS
District Judge Ted Stewart

Defendants.

This matter is before the Court on Defendants’ Motion to Strike. For the reasons
discussed below, the Court will grant Defendant’s Motion.
Plaintiff attached a Declaration to her Memorandum in Opposition to Defendants’
Motion for Summary Judgment in which she provides a narrative of relevant events. Plaintiff
previously testified regarding these events in her deposition. Defendants request the Court strike
portions of Plaintiff’s declaration that are inconsistent with her deposition testimony. Burton
failed to respond to the motion.
“[A]n affidavit may not be disregarded [solely] because it conflicts with the affiant’s
prior sworn statements. In assessing a conflict under these circumstances, however, courts will
disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham

1

fact issue.” 1 “In determining whether an affidavit creates a sham fact issue, we consider
whether: ‘(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had
access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was
based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the
affidavit attempts to explain.’” 2
First, Burton was cross-examined in her deposition about the details of her contacts with
Godfrey; the same contacts that Plaintiff describes in her affidavit. This factor weighs against
considering the affidavit. Second, Burton has not shown that the affidavit was based on newly
discovered evidence. This also weighs against considering the affidavit. Third, there is no
apparent confusion in the deposition testimony, and the affidavit contradicts the deposition
without any suggestion that the original testimony was incorrect. This factor also weighs against
considering the affidavit.
Some of the inconsistencies between Burton’s deposition and affidavit are minor. For
example, one inconsistency regards whether Burton was unable to see well during the August
2010 meeting because she was crying or because she was experiencing blurred vision as a result
of her type I diabetes. 3 However, some inconsistencies are substantial. Most importantly, in
deposition, Burton testified that she spoke with Godfrey in August 2013 “after [Godfrey] told

1

Law Co. v. Mohawk Constr. & Supply Co., 577 F.3d 1164, 1169 (10th Cir. 2009)
(quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)).
2
Id. (quoting Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir.
2001)).
3
Compare Docket No. 40, Ex. 12, at 96 with Docket No. 50, Ex. 6, ¶¶ 4–5, 14.
2

[her she] had really signed a resignation letter.” 4 In her declaration, however, she asserts that she
did not know about her August 2010 resignation until March 2015. 5
Therefore, all three factors weigh against the Court’s consideration of the affidavit in
deciding the summary judgment motion, and the Court will disregard the portions that are in
conflict with Plaintiff’s deposition testimony.
It is therefore
ORDERED that Defendants’ Motion to Strike (Docket No. 54) is GRANTED. The
Court will disregard portions of Plaintiff’s affidavit (Docket No. 50, Ex. 6) that conflict with
Plaintiff’s deposition testimony.
DATED this 17th day of August, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

4
5

Docket No. 40, Ex. 12, at 125.
Docket No. 50, Ex. 6, ¶ 28.
3