Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Floyd v. Chilly's L.L.C. of Alabama

United States District Court, M.D. Louisiana

April 21, 2017

VERNA J. FLOYD
v.
CHILLY'S L.L.C. OF ALABAMA

          RULING AND ORDER

          BRIAN A. JACKSON, CHIEF JUDGE

         Before 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.

         I. BACKGROUND

         On 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. 8).[1] 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).

         Plaintiff 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. (Doc. 12).

         II. DISCUSSION

         Rule 56 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 inadmissible.

         A. 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.[2] 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.

         Defendant 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.).

         Federal 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.

         The 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).

         Further, 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).

         1. Affidavit of Ryan Flynn

         Plaintiff 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.