Opinion
Case No. 1:11-cv-753-WHA
04-30-2012
FLAVOR HOUSE PRODUCTS, INC., A Delaware Company, and HARVEST MANOR FARMS, LLC, A Delaware Limited Liability Company Plaintiffs, v. INTERNATIONAL NUT ALLIANCE, LLC, A New Jersey Limited Liability Company, Defendant.
(WO)
ORDER
Upon consideration of the evidence submitted in support of and in opposition to Defendant's Motion to Dismiss or in the Alternative Motion to Compel Arbitration and Stay (Doc. #13), the court notes that, while the affidavits of Michael Davis (Doc. # 25-1), John Runck (Doc. # 25-2), and Maria Arreola (Doc. # 25-3) contain acknowledgments before a notary public, the acknowledgments do not say that they were sworn to before the notary public. Therefore, they are unsworn statements, and this prevents the court from properly considering them in its resolution of Defendant's Motion. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) ("Because [the] affidavit was unsworn, it was not properly considered by the district court."); see also Gordon v. Watson, 622 F.2d 120, 123 (5th. Cir. 1980) (finding that an unsworn statement, even by a pro se litigant, should not be "consider[ed] in determining the propriety of summary judgment."). Pursuant to Federal Rule of Civil Procedure 56(e)(1), the court will give the Plaintiffs until Monday May 7, 2012 to cure the defects in the affidavits, if they wish to do so.
The Eleventh Circuit adopted as precedent all Fifth Circuit opinions issued before November 3, 1981. See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir.1981)
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W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE