United States District Court, M.D. Louisiana
VERNA J. FLOYD
CHILLY'S L.L.C. OF ALABAMA
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court is Plaintiffs Motion to Strike Statement of
Material Facts and Declarations (Doc. 9) and Defendant's
Motion to Strike Exhibit 4 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment (Doc 12). Both
motions dispute the admissibility of attachments submitted
with the Motion for Summary Judgment (Doc. 8), and Plaintiffs
response (Doc. 10). For reasons explained fully herein,
Plaintiffs Motion to Strike Statement of Material Facts and
Declarations (Doc. 9) is GRANTED IN PART AND DENIED IN PART
and Defendant's Motion to Strike Exhibit 4 to Plaintiffs
Opposition to Defendant's Motion for Summary Judgment
(Doc. 12) is GRANTED.
August 18, 2015 Plaintiff Verna J. Floyd, as representative
of the estate of her deceased son Jody Floyd, initiated suit
against Defendant Chilly's L.C.C. of Alabama. (Doc. 1).
Plaintiff alleges that the Americans with Disability Act
("ADA") was violated by the firing of Jody Floyd,
who at the time of his firing was undergoing treatment for
cancer. (Id. at 1-2). In an effort to dismiss the
claims, Defendant filed a Motion for Summary Judgment (Doc.
Submitted with the Motion for Summary Judgment was a series
of exhibits and Defendant's Statement of Material Facts
as to Which There is No Genuine Issue at Trial.
(Id.). Subsequently, Plaintiff filed a motion
seeking to strike Defendant's Statement of Material Facts
to Which There is No Genuine Issue at Trial, interrogatories,
request for productions, and sections of affidavits that were
attached to the Motion for Summary Judgment. (Doc. 9).
then filed her response to the Motion for Summary Judgment.
(Doc. 10). She attached to her opposition a letter from the
U.S. Equal Employment Opportunity Commission
("EEOC") indicating that the EEOC had determined
that there "is reason to believe that violations of the
AD AAA have occurred." (Doc. 10-4 at p. 1). Defendant
subsequently filed a motion seeking to strike this letter.
of the Federal Rules of Civil Procedure defines the
admissibility of evidence courts may consider when ruling on
a motion for summary judgment. Fed.R.Civ.P. 56(c). Parties
may cite to "particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials."
Id. Further, "[a]n affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated." Id. Parties
may object if evidence is not in admissible form.
Id. In this case, instead of "objecting"
to the evidence, each party has instead moved to strike the
evidence from the record, arguing that such evidence is
Defendant's "Statement of Material Facts as to Which
There is No Genuine Issue for Trial" The first
attachment that Plaintiff seeks to strike is the
"Statement of Material Facts as to Which There is No
Genuine Issue for Trial" ("the Statement").
(Doc. 9-1 at p. 2). Plaintiff argues that the facts presented
in the Statement are not properly supported, and thus, the
Statement in its entirety should be stricken from the record.
(Id.). However, such a broad request must be
denied. The Court has reviewed the assertions in
the Statement and the record, including evidence submitted
with the Motion for Summary Judgment, and finds that
Defendant's assertions seem to be supported in the
record. Even if Plaintiff is able to point to specific
portions in the record that are unsupported, her motion fails
to specifically point to statements in which there is no
evidentiary support in the record. Thus, the Court will
consider the facts included in the Statement. B. The
Interrogatories Plaintiff next moves to strike Exhibit 2 to
the Motion for Summary Judgment, which is the Defendant's
Responses to First Interrogatories and Request for Production
of Documents by Plaintiff ("Interrogatories").
(Doc. 8-3). While interrogatories are typically admissible
under Rule 56, Plaintiff argues that the interrogatories here
fail to meet the standards established by the Federal Rules
of Civil Procedure, specifically, that a corporate officer of
Defendant has not signed the interrogatories under oath.
(Doc. 9-1 at p. 2). Instead, the Defendant's lawyer
signed the interrogatories.
advances three responses. First, Defendant argues that the
interrogatory is valid-and therefore admissible for summary
judgment purposes under Federal Rule of Civil Procedure
56-because the term corporate "officer" is broad
enough to include the lawyer representing the corporation.
(Doc. 20 at p. 5). Next, Defendant argues that instead of
striking the interrogatories, the Court should require that
Defendant supplement the interrogatories with a version
signed by a corporate officer. (Id.). Finally,
Defendant argues that even if the Court strikes the
interrogatories, there is no practical effect because the
assertion that the interrogatory is submitted to support has
other evidentiary support in the record. (Id.).
Rule of Civil Procedure 33(b) states that "[t]he
interrogatories must be answered: (A) by the party to whom
they are directed; or (B) if that party is a public or
private corporation, a partnership, an association, or a
governmental agency, by any officer or agent, who
must furnish the information available to the party."
Fed.R.Civ.P. 33(b). Courts have construed Rule 33 to require
the party, not the counsel, to sign the interrogatories.
See, e.g., Leleux-Thubron v. Iberia Par. Gov't,
No. 6:13-CV-00852, 2015 WL 5519231, at *3 (W.D. La. Sept. 16,
2015) (signature by counsel was not sufficient to meet the
requirements of Federal Rule of Civil Procedure 33(b));
Swank v. Scottsdale Ins. Co., No. CIV.A. 10-0061,
2011 WL 1044625, at *3 (W.D. La. Mar. 21, 2011) (same);
Entergy Louisiana, Inc. v. Nat'l Union Fire Ins.
Co., No. CIV. A. 98-219, 1999 WL 239511, at *2 (E.D. La.
Apr. 21, 1999) (same). Thus, Defendant's interrogatories
fail to comply with the rule, and must be stricken, because
they are inadmissible for the purposes of summary judgment.
Court would otherwise grant Defendant an opportunity to
correct the deficiency by allowing Defendant time to
supplement the interrogatories; however, the Court agrees
with Defendant that the relevant information contained in the
interrogatories appears elsewhere in the record in admissible
form. Thus, Defendant will not be required to supplement its
responses. Accordingly, Plaintiffs request to strike Exhibit
2 from Defendant's Motion for Summary Judgment is
granted. C. Affidavits Plaintiff also seeks to strike
sections of the affidavits of several of the Defendant's
witnesses. (Doc. 9-1 at pp. 3-6). For testimony from an
affidavit to be admissible for summary judgment purposes, the
affidavit must: 1) be based on personal knowledge, 2) set out
facts that would be admissible in evidence, and 3) show that
the affiant or declarant is competent to testify on the
matters stated. Fed.R.Civ.P. 56(c)(4).
it is not enough to merely state that the affidavit is based
on personal knowledge, it must be clear that it is also based
on facts alleged in the affidavit. See Bright v.
Ashcroft, 259 F.Supp.2d 494, 498 (E.D. La. 2003)("A
declarant must provide evidence to establish that he has
personal knowledge of the facts stated."). Personal
knowledge means that the affiant "must have had an
opportunity to observe, and must have actually observed the
fact." Ripple v. Marble Falls Indep. Sch.
Disl., 99 F.Supp.3d G62, 673 (W.D. Tex. 2015). Finally,
"[unsubstantiated assertions, improbable inferences, and
unsupported speculation are not competent summary judgment
evidence." Walker v. SBC Servs., Inc., 375
F.Supp.2d 524, 535 (N.D. Tex. 2005). Any statements that
violate the rule[s] may "not [be] considered for summary
judgment purposes; any portions of the declarations that are
not struck remain part of the summary judgment record."
Ripple v. Marble Falls Indep. Sch. Disl., 99
F.Supp.3d 662, 673 (W.D. Tex. 2015).
Affidavit of Ryan Flynn
argues that several sections of the affidavit of Ryan Flynn
should be stricken from the record, as they are inadmissible
for the purposes of summary judgment because they lack any
indication that the assertions are based on personal
knowledge. (Doc. 9-1 at p. 6). Specifically, Plaintiff moves
to strike parts of ¶4 and ¶5, which state the
following: 1) "Jody Floyd made calls outside of his
territory, including in Alexandria, " and 2) "Jody
Floyd was offering free ice cream to prospective customers
which is against the rules of the Louisiana Dairy
Board." (Doc. 8-4 at p. 1). As previously stated, the
affidavits must be based on personal knowledge and contain
more than conclusory allegations. The statements from this
affidavit do not indicate that the affiant observed or was
otherwise aware that Jody Floyd made the calls, or indicate
that the affiant had personal knowledge that Jody Floyd gave
away free ice cream. Neither statement indicates how the
affiant was aware of this information, but merely offers a
conclusory statement at the beginning of the affidavit that
the information was "personal ...