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Wilber v. Curtis

United States District Court, D. Massachusetts

September 22, 2016


          ORDER ON THE PARTIES' MOTIONS TO STRIKE [Dkt. Nos. 53, 58, 66]


         This case arises out of the November 21, 2011 arrest of plaintiff Robert Jude Wilber. Wilber alleges, among other things, that his arrest, confinement, and prosecution were unlawful and deprived him of his constitutional rights. Dkt. No. 1-2 (“Complaint” or “Compl.”). The parties in this case have each filed motions for summary judgment. Dkt. Nos. 44, 47. In addition, the defendants moved to strike portions of two affidavits submitted by Wilber (Dkt. Nos. 53, 66) and he in turn moved to strike portions of the defendants' statement of undisputed material facts (Dkt. No. 58). In order to determine which materials are properly before the Court for purposes of deciding the cross-motions for summary judgment, the Court must first determine the content of the summary judgment record. For the following reasons, this Court denies Wilber's motion and grants in part and denies in part the defendants' motions to strike portions of the record.[1]


         On November 20, 2014, Wilber filed suit against Falmouth Police Officers Robert Curtis, Brian Kinsella, and Michael Rogers. Dkt. No. 1 at 1.[2] Wilber claims that on November 21, 2011, he was arrested by the defendants even though he had been engaged in protected protest activity. See Compl. ¶¶ 12-14, 46. Specifically, Wilber was protesting, inter alia, NSTAR's efforts to clear-cut the vegetation on his land. Id. ¶ 13. NSTAR possesses a deeded easement over a portion of his property, but Wilber believes that NSTAR's clear-cutting practices cause damage to his land. Id. ¶¶ 6, 13-14. After engaging with the police during his protest, Wilber was ordered to leave the easement area. Id. ¶ 26. When he refused, he was arrested and subsequently charged with one count of disorderly conduct. Id. ¶¶ 34, 37. As a result of this incident, Wilber alleges federal and state civil rights claims as well as common law tort claims for false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress. Id. ¶¶ 47-52.

         In connection with their summary judgment papers, Wilber and the defendants filed motions to strike portions of the record. Specifically, on March 11, 2016, the defendants moved to strike Wilber's first affidavit (Dkt. No. 46, “Wilber Aff. 1”), which was submitted in support of his motion for partial summary judgment. Dkt. No. 53. Also on March 11, 2016, Wilber moved to strike portions of the defendants' statement of undisputed material facts (Dkt. No. 49, “Def. SOF”). Dkt. No. 58. Wilber and the defendants opposed the motions to strike on March 23 and March 25, respectively. Dkt. Nos. 62, 65. Wilber filed a reply brief on April 6, 2016. Dkt. No. 71.

         On March 25, 2016, the defendants filed a second motion to strike. Dkt. No. 66. In their second motion, the defendants make numerous objections to Wilber's second affidavit (Dkt. No. 54, “Wilber Aff. 2”), which was filed in support of his opposition to the defendants' motion for summary judgment. Id. Wilber opposed the defendants' second motion on April 6, 2016. Dkt. No. 69. The Court heard oral argument on April 27, 2016. Dkt. No. 74.


         Federal Rule of Civil Procedure 56 sets forth the rules governing summary judgment, including the procedures for supporting and/or objecting to a party's factual positions. Fed.R.Civ.P. 56(c). Only evidence that would be admissible at trial may be considered in connection with a motion for summary judgment, and a party may object to a fact on the basis that the material cited to support or dispute that fact cannot be presented in a form that would be admissible in evidence. Fed.R.Civ.P. 56(c)(2); see also Iorio v. Aramark Servicemaster, No. 03-40147-FDS, 2005 WL 3728715, at *6 (D. Mass. Sept. 30, 2005). For that reason, hearsay evidence is inadmissible for summary judgment purposes “unless it falls within one of the exceptions specified in the Federal Rules of Evidence.” Ramirez Rodriguez v. Boehringer Ingelheim Pharm., Inc., 425 F.3d 67, 76 (1st Cir. 2005).

         With respect to affidavits submitted in support of motions for summary judgment, they 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). “When an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.” Colantuoni v. Alfred Galcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994) (citations omitted). “The purpose of this sham affidavit rule is to protect the procedural integrity of summary judgment.” Mahan v. Boston Water & Sewer Comm'n, 179 F.R.D. 49, 53 (D. Mass. 1998). “If a party simply could offer a contradictory, post-deposition affidavit to defeat summary judgment without providing a ‘satisfactory explanation' for the contradiction, the purpose of summary judgment would be defeated.” Id (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2nd Cir. 1969)). However, “[a] subsequent affidavit that merely explains, or amplifies upon, opaque testimony given in a previous deposition is entitled to consideration in opposition to a motion for summary judgment.” Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 26 (1st Cir. 2002). The proponent of the challenged evidence bears the burden of proving admissibility. United States v. Bartelho, 129 F.3d 663, 670 (1st Cir. 1997).


         A. Wilber's Motion To Strike

         Wilber objects to Def SOF ¶¶ 8, 11, 16, 39, and 40 on various grounds, including that they contain hearsay. See Dkt. No. 58. After carefully reviewing the record and the parties' arguments, the Court finds that these statements are admissible and relevant to the issues in the instant action. Accordingly, for the reasons outlined herein, Wilber's motion is denied.

         1. Def. SOF ¶ 8

         Wilber moves to strike the statement in Def. SOF ¶ 8 that, “Mr. Swanson said that this area of power lines is owned by NSTAR.” Dkt. No. 58 at 1-2. Wilber argues that it repeats incorrect information provided by an informant who was not competent to state who owned the area at issue. Id at 1. Wilber admits that NSTAR owns the power lines and poles, but disputes NSTAR's ownership of the “area, ” generally. Dkt. No. 61 (“Wilber Resp. to Def. SOF”) ¶ 8. Wilber does not challenge the statement's admissibility; rather, his objections regarding the competency of the speaker go to credibility. See Dkt. No. 58 at 1-2. ...

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