Summary
stating that none of the hearsay exceptions apply to the affidavit of a deceased affiant but that his deposition testimony could be used instead
Summary of this case from House of Clean, Inc. v. St. Paul Fire Marine Ins. Co.Opinion
No. 96-CV-549S.
June 30, 2004
DECISION AND ORDER
I. INTRODUCTION
Ruby D. Crittenden, acting in her capacity as Administratrix of the estate of her late husband, Donald Latham, has been substituted as the plaintiff in this employment discrimination action. Plaintiff is proceeding on Latham's original claim that Defendants Children's Hospital of Buffalo and Paul Palombo discriminated against him because of his race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, and the New York Human Rights Law, § 290 et seq.
Presently before this Court are Defendants' Motion for Summary Judgment and Defendants' Motion to Strike the Affidavit of Donald Latham. As discussed below, Defendants' Motion to Strike is granted, and Defendants' Motion for Summary Judgment is denied as moot with leave to refile an updated summary judgment motion.
In support of their Motion for Summary Judgment, Defendants filed the following documents: a Notice of Motion with attached exhibits, a memorandum of law with attached exhibits, a reply memorandum of law, the reply Declaration of Adam Perry, Esq. with attached exhibits, and a supplemental memorandum of law. In opposition to Defendants' motion, Plaintiff filed the following documents: a memorandum of law, the Affidavit of Kevin Wicka, Esq., with attached exhibits, and a supplemental memorandum of law.
In support of their Motion to Strike, Defendants filed the following documents: a Notice of Motion with attached exhibits, a memorandum of law, a reply memorandum of law, and the reply Declaration of Adam Perry, Esq. In opposition to Defendants' motion, Plaintiff filed a memorandum of law and the Affidavit of Kevin Wicka, Esq. with attached exhibits.
II. BACKGROUND
On February 10, 2000, Defendants filed a Motion for Summary Judgment. In opposition thereto, Plaintiff filed an affidavit from Donald Latham, which he swore to on April 28, 2000. The summary judgment motion was fully briefed and argued by counsel before this Court on June 9, 2000. Approximately one month later, on July 12, 2000, Donald Latham died unexpectedly. On August 8, 2000, Defendants filed the instant Motion to Strike Latham's affidavit and all references to it in Plaintiff's opposition papers on the grounds that it is inadmissible hearsay evidence.
Thereafter, on September 29, 2000, this case was administratively closed. It was reopened approximately one year later when Plaintiff filed a Suggestion of Death on the record and moved for party substitution. The parties subsequently filed supplemental memoranda related to the summary judgment motion. This Court heard additional oral argument on February 14, 2002, and reserved decision at that time.
III. DISCUSSION AND ANALYSIS
A. Motion to Strike
Rule 56(e) of the Federal Rules of Civil Procedure governs the form of supporting or opposing affidavits filed at the summary judgment stage. It provides as follows: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." FED. R. CIV. P. 56(e).
The Second Circuit has specifically held that: "Affidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001); see also Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) ("[the non-moving party] cannot rely on inadmissible hearsay in opposing a motion for summary judgment . . . absent a showing that admissible evidence will be available at trial"). The party offering a hearsay affidavit must establish that admissible evidence will be available at trial. Bldg. Indus. Fund v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 992 F. Supp. 162, 173 (E.D.N.Y. 1996).
Because Latham is unavailable to testify and his affidavit is being offered for the truth of its statements, the affidavit is hearsay. See FED. R. EVID. 801(c) ("`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.") Unless one of the exceptions to the hearsay rule applies, hearsay is not admissible at trial. See FED. R. EVID. 802. Here, none of the hearsay exceptions in Rules 803-807 of the Federal Rules of Evidence apply. Thus, the Latham affidavit itself is inadmissible hearsay, and cannot be used to oppose summary judgment. See Santos, 243 F.3d at 683.
Plaintiff does not deny that the Latham affidavit is hearsay. Instead, Plaintiff argues that this Court should consider the affidavit because at the time the summary judgment motion was submitted for decision, the affidavit was not hearsay and all the requirements of Rule 56(e) were met. Plaintiff, however, offers no legal authority for her position that the requirements of Rule 56(e) apply only at the time the affidavit is submitted, and this Court could not locate any.
Further, Plaintiff's counsel avers that many of the statements contained in the Latham affidavit are derived from and found in Latham's deposition testimony, which Plaintiff attaches as Exhibit 2 to the Wicka Affidavit. Latham's deposition testimony is admissible at trial pursuant to Rule 32(a)(3) of the Federal Rules of Civil Procedure and Rule 804(b)(1) of the Federal Rules of Evidence. Therefore, as discussed below, this Court will consider the Latham deposition in place of the Latham affidavit if Plaintiff offers it in opposition to Defendants' Motion for Summary Judgment. Defendants' Motion to Strike the Latham affidavit is granted.
In her opposition papers, Plaintiff requests that statements in the Latham affidavit that are also found in the Latham deposition not be stricken. Because this Court will consider the entire Latham deposition, the fact that a given statement may also appear in the Latham affidavit is cumulative. Plaintiff's request in this regard is therefore denied.
B. Motion for Summary Judgment
This Court recognizes that there have been periods of delay in this litigation, some of which are attributable to Donald Latham's unexpected death, some to counsel, and some to this Court. For that reason, this Court endeavored to resolve Defendants' Motion for Summary Judgment in conjunction with its instant ruling on Defendants' Motion to Strike. The summary judgment motion, however, was briefed and argued while Donald Latham was alive. Plaintiff's opposition to the motion is heavily reliant on assertions made in Latham's now stricken affidavit and arguments based on Latham's expected trial testimony. Neither the effect of Latham's death on this litigation nor the evidentiary impact that striking Latham's affidavit has on this case has been adequately addressed by the parties. Put simply, the Latham deposition has not been viewed or presented with an advocate's eye, which, given the changed nature of this case, would be to each side's (and this Court's) benefit.
This is important because this Court's initial review of Latham's deposition indicates that it is considerably less detailed and less expansive than Plaintiff's Amended Complaint and Latham's affidavit. Consequently, it appears that Latham's death and the striking of his affidavit have materially altered this case. Moreover, while a copy of Latham's deposition was filed in conjunction with Plaintiff's opposition to the Motion to Strike, Latham's deposition has not formally been offered in opposition to the summary judgment motion. Thus, Latham's deposition is not properly before this Court as it relates to the summary judgment motion.
Based on these unique circumstances, a new summary judgment motion, one that addresses and analyzes the current evidentiary record, is necessary for this Court to render a complete and informed decision on Defendants' dispositive motion. While rebriefing will necessarily add another brief period of delay, this Court is confident that both sides will benefit from a decision based on the current state of the record.
Finally, given the changed nature of this case and the period of delay that has ensued, this Court also finds that further settlement discussions may be fruitful. Accordingly, by separate Order, this Court will direct counsel and representatives of the parties with settlement authority to appear before the Honorable Victor E. Bianchini, United States Magistrate Judge, on Wednesday, August 18, 2004, at 3:30 p.m. to discuss settlement. If settlement is not achieved, this Court will expeditiously resolve Defendants' refiled Motion for Summary Judgment.
IV. CONCLUSION
For the reasons stated above, Defendants' Motion to Strike is granted and Defendants' Motion for Summary Judgment is denied as moot with leave to refile an updated summary judgment motion. Further, the parties will be directed to appear for a settlement conference before Judge Bianchini.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants' Motion to Strike (Docket No. 70) is GRANTED.
FURTHER, that the Affidavit of Donald Latham, which is filed as part of the Affidavit of Kevin Wicka (Docket No. 66) is hereby STRICKEN from the record.
The Latham affidavit immediately follows the 19-page Wicka affidavit. It is not one of the tabbed exhibits.
FURTHER, that counsel and representatives of the parties with settlement authority shall appear before the Honorable Victor E. Bianchini, United States Magistrate Judge, on Wednesday, August 18, 2004, at 3:30 p.m. for a settlement conference.
FURTHER, that Defendants' Motion for Summary Judgment (Docket No. 60) is DENIED as moot with leave to refile an updated summary judgment motion according to the schedule set forth below:
Defendants shall file with the Clerk of the Court and serve their Motion for Summary Judgment, if any, on or before Wednesday, September 1, 2004.
Plaintiff shall file with the Clerk of the Court and serve a response to Defendants' motion on or before Wednesday, September 15, 2004.
Defendants shall file with the Clerk of the Court and serve any reply thereto on or before Wednesday, September 22, 2004.
Counsel shall mail courtesy copies of all documents filed with respect to this motion to this Court at 507 United States Courthouse, 68 Court Street, Buffalo, New York 14202.
Oral argument on Defendants' Motion for Summary Judgment, if any, will be scheduled by this Court as necessary.
SO ORDERED.