Hawkins v. United States of America et al

Filing 19

ORDER directing parties to properly authenticate their exhibits no later than Tuesday, July 25, 2017, at 5:00 p.m ; If either party objects to the other party's authentication, the objecting party must file a statement of its objections no later than Wednesday, July 26, 2017, at 5:00 p.m. ; re Plaintiff's 17 Response to Motion, Government's 16 MOTION to Dismiss, signed by Judge James L. Robart. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SABELITA HAWKINS,
Plaintiff,

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CASE NO. C16-0498JLR
ORDER

v.
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UNITED STATES OF AMERICA,
et al.,

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Defendants.

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Before the court is Defendant United States of America’s (“the Government”)
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motion to dismiss for lack of subject matter jurisdiction and for summary judgment.
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(Mot. (Dkt. # 16).) In support of what appears to be a factual challenge to the court’s
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subject matter jurisdiction, Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)
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(stating that the court resolves a factual challenge to jurisdiction by considering the
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extrinsic evidence the defendant puts forth), and the motion for summary judgment, the
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Government filed a number of exhibits but failed to authenticate them (see id.; Dkt.). In
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ORDER - 1

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opposing the Government’s motion, Plaintiff Sabelita Hawkins failed to authenticate the

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exhibits she filed. (See Resp. (Dkt. # 17); Dkt.)

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In ruling on a motion for summary judgment, the court may not consider

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unauthenticated exhibits.1 See Canada v. Blain’s Helicopters, Inc., 831 F.2d 920, 925

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(9th Cir. 1987) (“It is well settled that unauthenticated documents cannot be considered

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on a motion for summary judgment.”); Orr v. Bank of Am., NT& SA, 285 F.3d 764, 774

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(9th Cir. 2002) (“A deposition or an extract therefrom is authenticated in a motion for

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summary judgment when it identifies the names of the deponent and the action and

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includes the reporter’s certification that the deposition is a true record of the testimony of

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the deponent.”); Fed. R. Evid. 901(a) (“To satisfy the requirement of authenticating or

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identifying an item of evidence, the proponent must produce evidence sufficient to

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support a finding that the item is what the proponent claims it is.”). Because neither the

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Government nor Ms. Hawkins properly authenticated the evidence they offer, the court

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orders the parties to properly authenticate their exhibits, including the deposition

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excerpts, see Orr, 285 F.3d at 774, no later than Tuesday, July 25, 2017, at 5:00 p.m., see

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Fed. R. Civ. P. 56(e)(1) (“If a party fails to properly support an assertion of fact or fails to

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properly address another party’s assertion of fact . . . , the court may . . . give an

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In ruling on a factual challenge to the court’s subject matter jurisdiction, the court
should consider only authenticated exhibits. See Cholakyan v. Mercedes-Benz USA, LLC,
No. CV 10-05944 MMM (JCx), 2012 WL 12861143, at *17 (C.D. Cal. Jan. 12, 2012) (stating
that resolution of a factual challenge to the court’s subject matter jurisdiction “should apply a
standard similar to that used in deciding summary judgment motions” if the court does not hold
an evidentiary hearing); Placencia v. United States, 3:16-cv-02354-BEN-MDD, 2017 WL
3017708, at *2 (S.D. Cal. July 14, 2017) (stating that in ruling on a 12(b)(1) factual challenge,
the court “considers all admissible evidence in the record”).
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opportunity to properly support or address the fact . . . .”); see also Willing v. Arms,

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No. 2:14-cv-01122-APG-PAL, 2016 WL 5109139, at *5 (D. Nev. Sept. 19, 2016) (“It

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would be a waste of judicial and the parties’ resources to proceed to trial simply to

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authenticate the evidence. Justice dictates that [the court] afford . . . a brief opportunity

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to authenticate the[] exhibits.”). If either party objects to the other party’s authentication,

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the objecting party must file a statement of its objections no later than Wednesday, July

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26, 2017, at 5:00 p.m. The statements of objections, if any, shall not exceed three (3)

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pages.

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Dated this 21st day of July, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 3