Opinion
Case No. 2:09-CV-915.
December 2, 2010
OPINION AND ORDER
This matter is before the Court for consideration of the Defendants' Motion to Strike Affidavit of Linda E. Downing, Doc. No. 33, and the Plaintiffs' Motion for Leave to File Original Affidavit Instanter, Doc. No. 34. For the reasons that follow, the Defendants' motion is granted and the Plaintiffs' motion is granted, in part.
I.
Plaintiffs Christal L. Fox and her husband, John Fox ["Plaintiffs"], bring this action against their former employer, Defendant Brown Memorial Home, Inc., and other individuals, alleging wrongful termination. Defendants have filed a Motion for Summary Judgment, Doc. No. 25, on Plaintiffs' remaining claims. Plaintiffs have filed a Memorandum contra, Doc. No. 32. In connection with that opposition, Plaintiffs submitted the affidavit of one Linda E. Downing, Doc. No. 31. Defendants move to strike this affidavit because it was not signed by the affiant.
Defendants correctly observe that the affidavit of Ms. Downing is not signed. The affidavit contains a purported electronic signature with the notation "/s/ Linda E. Downing." See Doc. No. 31. The electronic signature is, however, impermissible. As this Court has previously observed, "[u]nder the local rules of this court, affidavits which are not notarized or which contain an electronic signature instead of the actual signature of the affiant are not properly signed, and therefore are not proper evidence under Rule 56." Tdata, Inc. v. Aircraft Technical Publishers, Nos. 2:03-CV-264 and 2:04-CV-1072, 2007 WL 464411 at *3 (S.D. Ohio February 6, 2007) (Frost, J.), citing Watson v. City of Mason, No. C1-04-283, 2005 WL 3018690 at *9-10 (S.D. Ohio November 9, 2005); S.D. Ohio Local Rule 1.1(e); Electronic Filing Policies and Procedures Manual, Rule C, "Signatures."
Thus, the affidavit of Ms. Downing is essentially an unsworn document and is not properly before the Court for consideration in connection with the Memorandum contra Defendants' Motion for Summary Judgment. The Defendants' Motion to Strike the affidavit is therefore meritorious.
The Court notes that the affidavit is also not properly notarized in accordance with R.C. § 147.04, which requires that the name of the notary public appear "near his signature on each document signed by him." There is no actual signature of the notary public, but rather a purported electronic signature.
Plaintiffs have filed a Motion for Leave to File Original Affidavit Instanter, Doc. No. 34, conceding that the affidavit of Ms. Downing is improper because it contains an electronic signature. Plaintiffs have therefore tendered a new affidavit that contains the actual signature of Ms. Downing and is also properly notarized. See attachment to Doc. No. 34.
Defendants oppose laintiffs' Motion for Leave to File Original Affidavit Instanter for two reasons. First, Defendants contend that inclusion of the affidavit in the record is improper because it was submitted after the deadline for filing a memorandum in opposition to the Defendants' motion for summary judgment. See S.D. Ohio Local Rule 7.2(d). Second, Defendants note that a portion of the tendered affidavit of Ms. Downing is different from the original affidavit: in the tendered affidavit, Ms. Downing avers that "[i]n early 20003 [sic], I submitted my physical resignation. . . ." See tendered Affidavit of Ms. Downing at ¶ 10, attached to Doc. No. 34. In contrast, the original, deficient, affidavit stated, "In early 2000, I submitted my physical resignation. . . ." Doc. No. 31 at ¶ 10.
With respect to Defendants' first argument, the Court concludes that inclusion of the tendered affidavit in the record is not in contravention of S.D. Ohio Local Rule 7.2(d). The original affidavit was clearly defective, as Plaintiffs concede. Allowing Plaintiffs to substitute the defective affidavit with a properly signed and notarized affidavit does not prejudice Defendants and yet serves the interest of justice in resolving this case on its merits.
As to Defendants' second argument, the Court agrees that the tendered affidavit is different from the original affidavit with respect to the year in which Ms. Downing allegedly resigned her employment. Although the Court will allow Plaintiffs to file a new affidavit which is properly signed and notarized, the Court will not permit alteration of the substance of the affidavit originally filed. Thus, Plaintiffs will be permitted to file a new affidavit of Ms. Downing, which is properly signed and notarized, but only if there is not substantive alteration from the affidavit originally submitted. Plaintiffs may have seven (7) days from the date of this Order in which to do so.
WHEREUPON Defendants' Motion to Strike Affidavit of Linda E. Downing, Doc. No. 33, is GRANTED. The Clerk shall STRIKE Doc. No. 31 from the record. Plaintiffs' Motion for Leave to File Original Affidavit Instanter, Doc. No. 34, is GRANTED, in part, consistent with the foregoing.
IT IS SO ORDERED.
December 2, 2010 DATE