Opinion
Case No. 01-2416-JAR
August 23, 2002
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' AFFIDAVITS
This matter is before the court on defendants' Motion to Strike Affidavits of Plaintiff Smith and Steve Cordell and for Modification of Reply Deadline filed on August 8, 2002 (Doc. 59). Plaintiffs filed a brief in opposition to defendants' motion on August 14, 2002. Defendants' motion is granted in part and denied in part as set out below.
I. Background
Plaintiffs filed suit in this matter alleging federal claims of Fair Housing Violations, Civil Rights Violations, and state claims of defamation and outrageous conduct (Doc. 1). Defendants filed for summary judgment on June 2, 2002 (Doc. 47 and 48). Plaintiffs filed a response to defendants' motion, including memorandum and exhibits in support, on July 19, 2002 (Doc. 57 and 58). On August 8, 2002, defendants filed a motion to strike two affidavits contained in plaintiffs' responsive pleadings, the affidavit of plaintiff Richard Smith ("Smith") and witness Steve Cordell. Defendants allege that the affidavits are "sham" affidavits intended to create false issues of fact to defeat summary judgment. Each affidavit will be dealt with individually below.
II. Standard
In determining if an affidavit is merely a "sham" to create issues of fact, the Tenth Circuit has held that "[t]here is authority for the proposition that in determining whether a material issue of fact exists, an affidavit may not be disregarded because it conflicts with the affiant's prior sworn statements. In assessing a conflict under these circumstances, however, courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue." The court considers several factors when evaluating an affidavit. "Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain."
Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (citations omitted); Burton v. R.J. Reynolds Tobacco Co., 181 F. Supp.2d 1256, 1269 (D.Kan. 2002).
Id.
In conjunction with this test, the court can consider that "[i]n response to a summary judgment motion . . . the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial."
Lujan v. Defenders of Wildlife, 504 U.S. 505, 561 (1992) (internal quotations omitted) (emphasis added).
II. Discussion and Analysis A. Affidavit of Plaintiff, Richard Smith
Defendants argue that Smith's affidavit contains statements contrary to his deposition, statements lacking in personal knowledge and conclusory statements. If statements in an affidavit do create sham issues of fact, this court may disregard those portions.Defendants' first point of contention is in paragraph 7 of Smith's affidavit. Defendants allege that Smith's affidavit is contrary to his earlier sworn deposition in that it states that defendants' general manager made statements about there being "trouble" because residents of Smith's apartment were of a mixed race. This argument is without merit and need not be analyzed under Franks. While Smith does not use the exact language in his affidavit that he used in his sworn deposition, on both occasions he alleges that defendants' manager discussed the mixed race of certain individuals while warning him of impending trouble. Questioning during the sworn deposition went farther and clarified that race was not the only factor discussed as there was also discussion concerning the age of the residents. Nevertheless, the two statements do not actually contradict each other.
Defendants' objection to paragraph 16 rests on the same grounds as those to paragraph 7, discussed above. As such, the argument is also without merit, as explained above, and the motion as to paragraphs 7 and 16 is denied. Defendants' next point deals with paragraph 8(a) of Smith's affidavit. This paragraph contains more than one statement by Smith. First, in his affidavit, Smith denies that he "ever often talked to other employees" about his sex life. In his deposition, Smith admits that he had a discussion with "Lana" regarding his use of Viagra and that he had a "good sex life." Smith goes on to say that he "only really once" talked about sex with Lana. In later questioning, Smith admits telling fellow employees that he was involved with a married woman. These statements mirror defendants' argument above as to paragraph 7. While the language used by plaintiff is different, it is not contradictory. Smith's affidavit does not say that he never discussed sex at work, only that it was not often. Defendants' motion as to this portion of paragraph 8(a) is denied.
Second, in paragraph 8(a) Smith denies saying that he "liked to date African-American women." Defendants' motion points to nothing in Smith's deposition to contradict this statement and is denied as to this portion of the paragraph. Third, Smith also denies in this paragraph that he ever talked about sex in general. This portion of paragraph 8(a) is contrary to Smith's deposition, in which he admits to discussing Viagra, the state of his sex life with Lana, as well as his being sexually involved with a married woman. If an affidavit is contrary to prior sworn testimony, the court is not required to disregard the affidavit. Instead, the contrary statement is evaluated under the factors set out in Franks, as explained above. In this case, Smith was cross-examined at his deposition. He certainly had access to any information about prior statements he made at work, his affidavit does not refer to his prior deposition and cannot be reasonably inferred as an attempt to clarify any point of confusion from his earlier statements. As such, the portion of paragraph 8(a) wherein Smith denies ever talking about sex in general is stricken as an attempt to create a sham issue of fact.
Franks, 796 F.2d at 1237.
Next, defendants challenge paragraph 14 of Smith's affidavit. Rule 56(e) requires that affidavits be based on personal knowledge. Defendants argue that this paragraph's language of "comments [were] directed toward one or more of the Plaintiffs" is not based on personal knowledge. Smith's affidavit is consistent with his deposition testimony. Smith testified in his deposition that the alleged discriminatory statements were heard by him and on some occasions others were present. As such, this is not inconsistent with his earlier testimony and, thus, not an attempt to create a sham issue of fact. Defendants' motion as to paragraph 14 is denied.
Fed R. Civ Pro. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge. . . .")
Defendants challenge paragraph 15 of Smith's affidavit as contrary to his deposition and lacking in personal knowledge. This statement need not be analyzed under Franks. Defendants' central objection is to Smith's use of the word "often" as contrary to his earlier testimony. In his deposition, Smith testified that he personally heard Lana repeat a story calling African-Americans "spooks" on five or six occasions. He also testified that Lana referred to a black person as "colored" in his presence and that Lana asked him about the appearance of black female genitalia. Smith's affidavit characterizing these seven or eight instances as "often" is not contrary to his earlier testimony. As such, defendants' challenge to this paragraph is denied.
As to paragraph 17, defendants challenge Smith's personal knowledge. While Rule 56(e) requires affidavits be based on personal knowledge, not conjecture or speculation unsupported by actual evidence, personal knowledge also includes inferences drawn from knowledge of other facts. Smith does not claim to have seen the person(s) who allegedly sprayed the apartment. Rather, his affidavit states that he "believes" an employee of defendants was responsible. He supports this belief with evidence about events he witnessed the same day. Defendants' challenge is one of weight rather than lack of personal knowledge. Accordingly, defendants' motion as to paragraph 17 is denied.
Martinez v. CO2 Services, Inc., 12 Fed. Appx. 689, 695 (10th Cir. 2001) (citing Peterson v. Shanks, 149 F.3d 1140, 1144-45 (10th Cir. 1998)).
Visser v. Packard Engineering Associates, Inc., 924 F.2d 655, 659 (7th 1991) ("But the inferences and opinions must be gounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.") (Citations omitted)
Paragraph 27 is challenged for lack of personal knowledge. Plaintiffs' response to this motion renders the argument moot. Smith has agreed to change the word "their" to "his" and claims the misstatement was merely a typographical error. It is suggested that Smith submit an amendment to the affidavit, for the record. Paragraph 29 is also challenged for lack of personal knowledge. Nothing in the affidavit or found in the depositions suggests that Smith was present during the apartment viewing by Tiffani McFadden and Ray Cole. However, nothing suggests that Smith's knowledge of available apartments is not in fact personal, due to his position in maintenance and readying of vacant apartments. Further, the walking distance of an apartment from the leasing office would not be information that Smith could only acquire from being present at the apartment showing. As such, defendants' motion to strike paragraph 29 is denied.
B. Steve Cordell's Affidavit
Defendants challenge the affidavit of witness Steve Cordell ("Cordell") for lack of personal knowledge. Defendants point out that Smith testified in his deposition that he did not think Steve Cordell had personal knowledge of the events giving rise to this suit because Cordell's employment ended in 1997. Just as Rule 56(e) prevents Smith from attesting to facts not within his personal knowledge, he also could not testify to what was or was not in Cordell's personal knowledge. Smith's deposition testimony cannot be used to strike Cordell's affidavit when Smith cannot swear to Cordell's personal knowledge. Cordell did not attest to anything in Smith's deposition. Many allegations in the complaint involve comments made to other plaintiffs and witnesses and it is possible that Cordell could have personal knowledge of those instances. Defendants' real argument goes to the weight to be given Cordell's affidavit. This is not an appropriate argument to strike an affidavit. Defendants' motion as to Cordell's affidavit is denied.
IT IS THEREFORE BY THIS COURT ORDERED that the defendants' Motion to Strike Affidavits of Plaintiff Smith and Steve Cordell (Doc. 59) is granted in part and denied in part as set out above.
IT IS FURTHER ORDERED that the Motion to Extend Time to Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment is granted and the deadline extended to twelve (12) calendar days following the issuance of this order.