United States District Court, D. Massachusetts
ORDER ON THE PARTIES' MOTIONS TO STRIKE [Dkt.
Nos. 53, 58, 66]
JENNIFER C. BOAL UNITED STATES MAGISTRATE JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
November 20, 2014, Wilber filed suit against Falmouth Police
Officers Robert Curtis, Brian Kinsella, and Michael Rogers.
Dkt. No. 1 at 1. 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.
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.
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.
STANDARD OF REVIEW
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).
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).
Wilber's Motion To Strike
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.
Def. SOF ¶ 8
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. ...