Hawk v. Atlanta Peach Movers Inc
| Decision Date | 21 April 2011 |
| Docket Number | CIVIL ACTION FILE NO. 1:10-CV-0239-JFK |
| Parties | DANNY HAWK, Plaintiff, v. ATLANTA PEACH MOVERS, INC., Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Plaintiff Danny Hawk filed the above-styled employment discrimination action against Defendant Atlanta Peach Movers, Inc., in the Superior Court of Fulton County on December 18, 2009, and it was removed to this court on January 27, 2010. [Doc. 1]. Plaintiff Hawk alleges that Defendant engaged in retaliation by terminating his employment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq. [Doc. 1]. Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on Plaintiff's claim based upon the pleadings, statement of material facts, exhibits, and discovery materials submitted to the court. [Doc. 43]. The parties have consented to jurisdiction by the undersigned Magistrate Judge. [Docs. 20, 21].
Plaintiff Hawk has not filed a response in opposition to Defendant's motion for summary judgment. Instead, Plaintiff moves to strike a number of documents filed by Defendant. [Doc. 45]. Plaintiff argues that the court should strike Defendant's motion for summary judgment, Defendant's statement of material facts, and an affidavit filed by Timothy Huff, Operations Manager for Defendant Atlanta Peach Movers. [Id.].
Motions to strike are provided for by Federal Rule of Civil Procedure 12(f), which states in pertinent part:
Fed. R. Civ. P. 12(f) (as amended 2009). The rule explicitly provides that the object being stricken must be in a "pleading." "Only material included in a 'pleading' may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly." 2 Moore's Federal Practice, § 12.37[2] (Matthew Bender 3d ed.). The Federal Rules define a "pleading" as a complaint; an answer to a complaint, to a counterclaim, to a cross-claim; a third-party complaint and a answer thereto; and, ifordered by the court, a reply to an answer. Fed. R. Civ. P. 7(a). "Motions, briefs or memoranda, objections, or affidavits may not be attacked by the motion to strike." 2 Moore's Federal Practice, § 12.37[2] (Matthew Bender 3d ed.). Accord Jeter v. Montgomery County, 480 F. Supp. 2d 1293, 1296 (M.D. Ala. 2007) (); Sum of $66,839.59 Filed in Registry of Court v. I.R.S., 119 F. Supp. 2d 1358, 1359 n.1 (N.D. Ga. 2000) (). In Plaintiff's motion, he seeks to have the court strike Defendant's summary judgment motion, Defendant's statement of material facts, and Timothy Huff's affidavit. Because none of these documents are pleadings, Plaintiff's motion [Doc. 45] to strike is DENIED.
The court will, however, consider Plaintiff's motion to strike insofar as it is a notice of objection. With regard to Defendant's summary judgment motion and statement of material facts, Plaintiff has offered nothing to support his contention that these documents should not be considered by the court. Instead, Plaintiff repeatedlymakes conclusory allegations such as: "Here, defendant's frivolous motion challenging the pleadings are intended solely to delay trial and harass the plaintiff." [Doc. 45 at 23]. Although unclear, it appears that the main premise underlying Plaintiff's motion to strike is that he does not want the summary judgment to be granted. This is obviously insufficient to support his objection.
Plaintiff also argues that pursuant to Federal Rule of Evidence 408, Defendant is not permitted to rely on "positions taken by Plaintiff in their meeting and conference on June 15, 2009 and July 3, 2009." [Doc. 45 at 25, 46]. According to Plaintiff, "The parties have agreed not long ago that these employment actions would be protected by FRE 408, and these papers reflect compromise positions taken by Plaintiff." [Id.]. Plaintiff's argument is without merit. Federal Rule of Evidence 408 prohibits inter alia the use of documents related to settlement negotiations "to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount...." Fed. R. Evid. 408(a). The Eleventh Circuit has held that "the test for whether statements fall under this rule is whether the statements or conduct were intended to be part of the negotiations toward compromise." Blu-J, Inc. v. Kemper C.P.A. Group, 916 F.2d 637, 642 (11th Cir. 1990) (citations and internal quotation marks omitted). The statements made during meetings on June 25, 2009, and July 3, 2009, to whichPlaintiff objects were not part of any negotiations to settle a claim. Instead, the meetings occurred while Plaintiff was employed with Defendant and were part of disciplinary actions taken by Defendant against Plaintiff for alleged misconduct in the workplace. [Huff Affidavit ("Aff.") 8, 9]. Statements made during these disciplinary meetings do not fall under Rule 408 and are admissible. For these reasons, Plaintiff's objection to Defendant's motion for summary judgment and statement of material facts is OVERRULED.
With regard to the affidavit of Timothy Huff, Plaintiff argues that the court should not consider this document because it is a sham affidavit. [Doc. 45 at 13-15]. "A court may determine that an affidavit is a sham when it contradicts previous deposition testimony and the party submitting the affidavit does not give any valid explanation for the contradiction." Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010) (citing Van T. Junkins and Assoc., Inc. v. U.S. Industries, Inc., 736 F.2d 656 (11th Cir. 1984)). "[C]ourts must 'find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit.'" Id. (quoting Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1316 (11th Cir. 2007)). The deficiency in Plaintiff's "sham affidavit" argument is that there is no evidence before the court that Huff's affidavit contradicts any previous deposition testimony. Whileit is clear that Plaintiff does not agree with statements made by Huff in his affidavit, Plaintiff's failure to cite to any inherently inconsistent testimony renders his "sham affidavit" argument unpersuasive.
Plaintiff Hawk also objects to Huff's affidavit because, according to Plaintiff, it "set[s] forth conclusory arguments rather than statements of fact based on personal knowledge...." [Doc. 45 at 30]. Plaintiff goes on to argue, "Many of the factual assertions in Huff's Declaration violate FRCP 56(e)(1) and FRE 602 because the Declaration do [sic] not set forth a foundation establishing that these declarants [sic] have personal knowledge of their assertions." [Doc. 45 at 48]. Plaintiff also objects to the exhibits attached to Huff's affidavit. Plaintiff's arguments are without merit.
Federal Rule of Civil Procedure 56(c) provides in part: "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4) (as amended 2010). Federal Rule of Evidence 602 provides in part: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602. Despite Plaintiff'sargument to the contrary, Huff has offered sufficient evidence to show that his affidavit satisfies the requirements of the Federal Rules.
Plaintiff has not offered support for his assertion that Huff's affidavit contains conclusory arguments. The affidavit, instead, consists of factual assertions which Huff stated were based on his personal knowledge.1 [Huff Aff. ¶ 1]. Huff asserted, "I have served as the Operations Manager for APM [Atlanta Peach Movers] for all times relevant to this lawsuit, and have been actively involved in APM's dealings with and subsequent litigation with plaintiff Danny Hawk ('Plaintiff')." [Huff Aff. ¶ 2]. Huff also stated that in his position as Operations Manager, he is responsible for disciplinary decisions relating to drivers. [Huff Aff. ¶ 5]. In addition, Huff stated that he met with other managers in June 2009 to make decisions about the company-wide lay-offs that eventually led to Plaintiff's termination, which is the basis of Plaintiff's Title VII retaliation claim currently before the court. [Huff Aff. ¶¶ 11, 12, 20, 22]. Based on these facts, the court finds that the affidavit of Timothy Huff clearly establishes that he is competent to testify and has personal knowledge of the facts asserted in the affidavit.
As noted supra, Plaintiff Hawk not only objects to Huff's affidavit, he objects to the exhibits attached to the affidavit. The attached exhibits consist of the following: the first disciplinary action issued to Plaintiff, dated June 15, 2009; the second disciplinary action issued to Plaintiff, dated July 3, 2009; and the termination letter issued to Plaintiff, dated July 14, 2009. . Documentary evidence is admissible if the proponent offers a foundation of "evidence sufficient to support a finding that the matter in question is what its...
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