Form 7B:12 Motion to Strike - Summary-Judgment Evidence

{CAPTION - FORM 1B:1}

{PARTY}'S MEMORANDUM IN SUPPORT OF MOTION
TO STRIKE {ADVERSE PARTY}'S SUMMARY-JUDGMENT EVIDENCE

{Party} asks the court to strike {adverse party}'s {identify objectionable summary-judgment evidence}.

A. Introduction

1. Plaintiff is {name}; defendant is {name}.

2. Plaintiff sued defendant for {state basis of suit}.

3. On {date}, {adverse party} filed a motion for summary judgment and attached summary-judgment evidence.

4. {Party} asks the court to strike the objectionable summary-judgment evidence that was submitted in support of {adverse party}'s motion for summary judgment.

B. Argument

5. The court can strike summary-judgment evidence when the evidence is inadmissible, speculative, conclusory, improperly authenticated, or otherwise incompetent. See Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir. 2004); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); McSpadden v. Mullins, 456 F.2d 428, 430 (8th Cir. 1972); Newport Elecs., Inc. v. Newport Corp., 157 F. Supp. 2d 202, 208 (D. Conn. 2001).

6. The court should strike the following summary-judgment evidence:

{CHOOSE OBJECTIONABLE EVIDENCE}

a. Affidavits. {Adverse party} relies on defective affidavits. The court can strike an affidavit if it is not based on personal knowledge, it sets out facts that would not be admissible in evidence, or it does not show that the affiant is competent to testify on the matters stated. Fed. R. Civ. P. 56(e)(1). A court should strike any portions of an affidavit that do not meet the standards of Federal Rule of Civil Procedure 56(e). Akin v. Q-L Invs., Inc., 959 F.2d 521, 530-31 (5th Cir. 1992).

b. Declarations. {Adverse party} relies on defective declarations.

c. Interrogatories. {Adverse party} relies on {his/her/its} own interrogatory answers. A party cannot rely on {his/her/its} own answers to interrogatories.

d. Deposition excerpts. {Adverse party} relies on deposition excerpts that are not properly authenticated.

e. Requests for admissions. {Adverse party} relies on {his/her/its} own admissions. A party cannot rely on {his/her/its} own admissions to interrogatories.

f. Other discovery. {Adverse party} relies on {identify document}, which {is not properly authenticated/is hearsay}.

g. Lay witness. {Adverse party} relies on the {deposition/affidavit} of a lay witness who is an interested witness. This testimony is not corroborated and contains contradicted facts.

h. Expert witness. {Adverse party} relies on the {deposition/affidavit} of an expert witness who is not qualified to render an expert opinion under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-94, 113 S. Ct. 2786, 2796-97 (1993).

i. {Identify other evidence to be struck.}

7. The court should strike the {identify summary-judgment evidence to be struck} because

{CHOOSE APPROPRIATE REASONS}

(A) {adverse party}'s affidavit is not based on personal knowledge. Fed. R. Civ. P. 56(e)(1); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199-1200 (10th Cir. 2006); Sellers v. M.C. Floors Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988). {Elaborate.} {See O'Connor's Federal Rules, "Personal knowledge," ch. 7-B, §6.1.2(1)(b)[2], p. 479.}

(B) {adverse party}'s affidavit sets out facts that would not be admissible in evidence. Fed. R. Civ. P. 56(e)(1); Sellers v. M.C. Floors Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988); see Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 682-83 (1st Cir. 1994). {Explain, e.g., affidavit includes inadmissible hearsay or lay opinion.} {See O'Connor's Federal Rules, ch. 7-B, "Summary-Judgment Proof," §6, p. 478.}

(C) the affiant is incompetent to testify on the matters stated in the affidavit. Fed. R. Civ. P. 56(e)(1). {Elaborate.} {See O'Connor's Federal Rules, "Competence," ch. 7-B, §6.1.2(1)(b)[1], p. 479.}

(D) {adverse party}'s affidavit testimony is inconsistent with {his/her/its} deposition testimony without explanation. See Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 614-15 (7th Cir. 2002); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996). {Elaborate.} {See O'Connor's Federal Rules, "Sham affidavit," ch. 7-B, §6.1.2(4), p. 480.}

(E) {adverse party}'s affidavit was made in bad faith. See Akin v. Q-L Invs., Inc., 959 F.2d 521, 530 (5th Cir. 1992). {Elaborate.} {See O'Connor's Federal Rules, "Bad-faith affidavit," ch. 7-B, §6.1.2(5), p. 480.}

(F) {adverse party}'s {identify evidence} is inadmissible or incompetent evidence. {Explain, e.g., document was not properly authenticated, deposition testimony is inadmissible hearsay.} {See O'Connor's Federal Rules, "Summary-Judgment Proof," ch. 7-B, §6, p. 478.}

(G) {adverse party}'s statements are speculative or conclusory. See Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir. 2004); Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997); Evans, 80 F.3d at 962. {Elaborate.}

(H) {explain any other reason why the evidence should be struck}.

C. Conclusion

8. {Briefly summarize the response.} For these reasons, {party} asks the court to strike {adverse party}'s objectionable summary-judgment evidence.