United States District Court, M.D. Louisiana
CHARLES ADAMS, ET AL.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, LOCAL 198, ET AL.
W. deGRAVELLES JUDGE
matter comes before the Court on Plaintiffs' Motion
to Strike, (Doc. 767), that was filed on January 3,
2020. Plaintiffs' motion seeks to strike paragraphs 9-10,
12-14, 16-17, and 20-26 of the Declaration of Louis LeBlanc,
(Doc. 737-4), offered by Defendant, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO, Local 198,
(“Defendant” or “Local 198”), in
support of its motion for summary judgment, (Doc. 737). In
summary, Plaintiffs contend that paragraphs of the
declaration should be stricken because they lack foundation,
are overly generalized, and/or are not made based on personal
knowledge. (Doc. 767, pp. 2-4).
Court declines to consider the merits of Plaintiffs'
motion to strike at this time because the motion to strike is
not necessary under the applicable Federal Rules of Civil
Procedure, and Plaintiffs' objections to Defendant's
offered evidence will be ruled upon in conjunction with the
Court's ruling upon Defendant's motion for summary
judgment. For approximately the past nine years, recommended
federal practices have entailed considering objections to
evidence offered in support of or in opposition to motions
for summary judgment in conjunction with the actual motion
for summary judgment as opposed to a separate motion to
strike, similar to the practice of objecting to evidentiary
offerings at trial. See Cutting Underwater Techs. USA,
Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 515 (5th
Cir. 2012)(“Prior to December 1, 2010, the proper
method by which to attack an affidavit was by filing a motion
to strike.”); Smith v. Palafox, 728 Fed.Appx.
270, 275 (5th Cir. 2018)(citing Lee v. Offshore
Logistical & Trasp., L.L.C., 859 F.3d 353, 355 (5th
Cir. 2017)(“[T]he new rule allows a party to object
‘that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible as
evidence.'”)). Acting in accord with these
recommended practices renders a separate motion to strike
moot or unnecessary.
2010 Advisory Committee Notes to Rule 56 specifically address
Subdivision (c)(2) provides that a party may object that
material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence. The
objection functions much as an objection at trial, adjusted
for the pretrial setting. The burden is on the proponent to
show that the material is admissible as presented or to
explain the admissible form that is anticipated.
There is no need to make a separate motion to
strike. If the case goes to trial, failure to
challenge admissibility at the summary-judgment stage does
not forfeit the right to challenge admissibility at trial.
(Emphasis added). See Cutting Underwater Techs. USA,
Inc, 671 F.3d at 515 (“Under the now- applicable
Rule 56(c)(2) … it is no longer necessary for a party
to file [a motion to strike]; instead, the party may simply
object to the material.”). Motions to strike should be
treated as objections. See National Roofers Union v.
Ascension Sheet Metal, LLC, Civ. A. No. 13-597, 2015 WL
4238021, at *1 (M.D. La. June 25, 2015) (citing Cutting
Underwater Techs, 671 F.3d at 515).
Local Rule 56(e) for the Middle District of Louisiana,
effective November 12, 2019, states:
Motions to Strike Not Allowed. Motions to
strike statements of fact are not allowed. If a party
contends that an individual statement of fact should not be
considered by the court, the party may include as part of the
response that the statement of fact “should be
stricken” with a brief statement of the reason(s) and
the authority or record citation in support. Without
prejudice to the determination of the request to strike, the
party shall admit, deny or qualify the statement as provided
in this rule. A party may respond to a request to strike
either in the reply statement of material facts as provided
in this rule or, if the request was made in a reply statement
of material facts, by filing a response within 14 days of
service of the reply statement. A response to a request to
strike shall be strictly limited to a brief statement of the
reason(s) why the statement of fact should be considered and
the authority or record citation in support.
forth above, motions to strike are no longer allowed.
Although Local Rule 56(e) refers to statements of fact, the
same applies to any evidence offered in support or in
opposition to a motion for summary judgment. Therefore, while
the former rule was that parties did not need to file a
separate motion to strike (and were discouraged from doing
so), the current rule is that such motions are not allowed.
on the foregoing, Plaintiffs' motion to strike is denied
without prejudice. Plaintiffs' objections to the
Declaration of Louis LeBlanc offered by Defendant are noted
as briefed in Doc. 767. The Court will consider these
objections and Defendant's response to same in
conjunction with the Court's consideration of
Defendant's motion for summary judgment and all briefing
and evidence submitted in support of or in opposition to the
IS ORDERED that Plaintiffs' Motion to
Strike, (Doc. 767), is DE ...