United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO
Dennis Saylor IV United States District Judge.
an employment dispute. Plaintiff Carmine Federico has brought
this action against the Town of Rowley, his former employer,
and MaryBeth Wiser, his former supervisor. Plaintiff alleges
five claims against defendants related to incidents that
occurred while he was employed with the Rowley Water
Department and to his termination.
moved for summary judgment on all counts. In response,
plaintiff filed affidavits from himself and Timothy Toomey, a
former Commissioner for the Rowley Board of Water
Commissioners. Defendants have moved to strike both the
affidavits in their entirety. For the following reasons,
defendants' motion will be denied in part and granted in
Motions to Strike
speaking, only evidence that would be admissible at trial may
be considered in connection with a motion for summary
judgment. See Garside v. Osco Drug, Inc., 895 F.2d
46, 49-50 (1st Cir. 1990). A significant exception is
affidavits; under Fed.R.Civ.P. 56, affidavits, although not
themselves admissible at trial, may be offered in support of,
or opposition to, summary judgment if they set forth facts
that would be admissible under the Federal Rules of Evidence.
See Id. at 49. Pursuant to Fed.R.Civ.P. 56(c)(4),
“[a]n 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
judgment affidavits are subject to the “sham
affidavit” rule. “When an interested witness has
given clear answers to unambiguous questions [in a
deposition], 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 Calcagni &
Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994); see also
Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13,
20 (1st Cir. 2000); 10A Charles Alan Wright, Arthur R.
Miller, & Mary Kay Allen, Federal Practice &
Procedure § 2726.1 (4th ed. 2016). The “sham
affidavit” rule safeguards the integrity of summary
judgment proceedings by preventing a party from
“manufactur[ing] a dispute of fact by contradicting his
earlier sworn testimony without a satisfactory explanation of
why the testimony is changed.” Abreu-Guzman v.
Ford, 241 F.3d 69, 74 (1st Cir. 2001).
motion to strike is the proper vehicle for challenging the
admissibility of evidence offered at the summary judgment
stage. See Casas Office Machs., Inc. v. Mita Copystar
Am., Inc., 42 F.3d 668, 682 (1st Cir. 1994). “The
moving party must specify the objectionable portions of the
affidavit and the specific grounds for objection.
Furthermore, a court will disregard only those portions of an
affidavit that are inadmissible and consider the rest of
it.” Id. (citation omitted); see also
Perez v. Volvo Car Corp., 247 F.3d 303, 315-16 (1st Cir.
Motion to Strike Federico Affidavit
have moved to strike Federico's affidavit in its entirety
on the grounds it is not based on his personal knowledge,
contains hearsay and irrelevant testimony that would not be
admissible at trial, and directly conflicts with his
deposition testimony and undisputed facts in defendants'
statement of facts.
it is true that Federico's affidavit contains statements
that would not be admissible at trial and that conflict with
prior statements, the affidavit is not so riddled with
inadmissible testimony as to require striking it entirely.
Many of the statements in the affidavit simply provide
further support for statements Federico made during his
deposition. Paragraphs four and eight of the affidavit,
however, will be struck on the ground that they contradict
the prior deposition testimony.
four of the Federico's affidavit states: “At no
time did I spend excessive time on personal; (sic)
calls or internet activity while on work hours.”
(Federico Aff. ¶ 4). That statement contradicts
Federico's deposition testimony:
Q. While you were at work did you ever access any websites
concerning escort services or prostitutes?
A. I did look at those, but I didn't elicit anything --
solicit anything like that.
Q. But you looked at them on your work computer?
(Federico Dep. ...