Opinion
CASE NO. 3:09-cv-1033-MEF (WO).
November 9, 2010
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant United Parcel Service, Inc.'s ("UPS") Motion to Strike the Declaration of Cheri Kintz-Roberts and Certain Exhibits to Plaintiff's Evidence Submitted in Opposition to Defendant's Motion for Summary Judgment, filed October 22, 2010 (Doc. # 37), and Plaintiff Cheri Kintz's ("Kintz") Response to this Court's Order requiring Kintz to show cause why UPS's Motion to Strike should not be granted (Doc. # 41).
UPS argues that Kintz's declaration (Doc. # 34, Exhibit 1) and several exhibits should be striken from the record for the following reasons: (1) Kintz's declaration does not meet the evidentiary requirements of either Fed.R.Civ.P. 56(e) or 28 U.S.C. § 1746; (2) Kintz's declaration contains inadmissible hearsay; (3) Kintz does not have personal knowledge regarding statements made in her declaration; (4) statements in Kintz's declaration are inconsistent with statements made during her deposition; and (5) thirty-three exhibits attached to Kintz's response to UPS's Motion for Summary Judgment are unauthenticated.
A. Kintz's Unsworn Declaration:
Federal Rule of Civil Procedure 56(e) requires that an affidavit opposing summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Title 28, U.S.C. § 1746 provides an alternative to sworn affidavits, allowing unsworn declarations to be submitted if certain statutory requirements are met. Such a declaration must be "subscribed by him, as true under penalty of perjury, and dated," and include the following phrase in "substantially the following form:"
If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct."28 U.S.C. § 1746.
Kintz's declaration states, "I, the undersigned Cheri Kintz-Roberts, hereby swear or affirm that the following is true and correct and based on my personal knowledge." (Doc. 34, Ex. 1). Her declaration is clearly unsworn, and therefore must meet the requirements of 28 U.S.C. § 1746. The Kintz declaration does not contain language substantially similar to that required by the statute, i.e. Kintz did not swear under penalty of perjury that her statements were true. Striking the Plaintiff's entire declaration — without granting leave to refile the declaration — on the basis of a technical defect is a harsh remedy. For these reasons, Defendant's Motion to Strike is GRANTED as to the Kintz declaration. However, it is ORDERED that Plaintiff be given leave to resubmit her declaration so that it may be brought into compliance with the requirements of 28 U.S.C. § 1746, if possible.
B. Remaining Objections to Kintz's Declaration:
C. Kintz's Unauthenticated Evidence:
or White v. Wells Fargo Guard Services908 F. Supp. 15701578Granger v. Williams200 F. Supp. 2d 13461350 Saunders v. Emory Healthcare, Inc. 360 F. App'x 110112-13
The Court does not deem it necessary at this time to make a decision about the potential of each document to be reduced to an admissible form at trial. Again, the Court will "implicitly address any meritorious objection as needed in its consideration of this motion" by simply disregarding any documents or exhibits that it deems to be inadmissible. Granger, 200 F. Supp. 2d at 1350. For these reasons, UPS's Motion to Strike is DENIED as MOOT to the extent it requests the Court to exclude Kintz's unauthenticated evidentiary submissions. Additionally, Kintz's request to supplement her evidentiary submissions is DENIED.
It is thereby ORDERED that:
Defendant UPS's Motion to Strike is GRANTED in part and DENIED in part, as explained above. It is further ORDERED that Plaintiff Kintz be granted until November 16th, 2010 to supplement her Evidentiary Submissions in Response to Defendant UPS's Motion for Summary Judgment so that the declaration of Cheri Kintz-Roberts may be brought into compliance with the requirements of 28 U.S.C. § 1746, if possible. No further supplementation of either the Kintz declaration or the remaining Exhibits will be permitted at this time.
Done this the 9th day of November, 2010.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).