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Mandarini v. Accurate Engineered Concrete, Inc.

United States District Court, D. Massachusetts

December 31, 2019

LOUIS A. MANDARINI III et al., Plaintiffs,
v.
ACCURATE ENGINEERED CONCRETE, INC. and FRANK J. FRANZONE, INC., Defendants.

          ORDER ON MOTIONS TO STRIKE AND TO QUASH (DOC. NOS. 94, 95, 108, 116)

          Leo T. Sorokin United States District Judge

         The parties have filed several motions to strike and to quash papers submitted in connection with the pending motions for summary judgment. Doc. Nos. 94, 95, 108, 116. For the reasons that follow, Defendants' motions (Doc. Nos. 94, 95, and 116) are DENIED. Plaintiffs' motion (Doc. No. 108) is ALLOWED IN PART and DENIED IN PART.

         I. Defendants' Motion to strike Paragraphs 18 and 27-31 of the Affidavit of Louis Mandarini (Doc. No. 94).

         Defendants move to strike certain paragraphs of the affidavit submitted by Plaintiff Louis Mandarini (Doc. No. 69) in support of Plaintiffs' motion for summary judgment. Doc. No. 94. Plaintiffs oppose. Doc. No. 109.[1] Defendants' Motion (Doc. No. 94) is DENIED. Insofar as Mandarini explains his application of the relevant collective bargaining agreements to the facts at issue in this case, it is admissible for that purpose. To the extent Defendants object that Mandarini restates other admissible evidence, that objection is not a basis to strike and, in any event, this is immaterial to the resolution of the parties' pending summary judgment motions.

         II. Defendants' Motion to Strike Exhibits E and F to Plaintiffs' Motion for Summary Judgment (Doc. No. 95).

         Defendants also move to strike Exhibits E and F to Plaintiffs' motion for summary judgment. Doc. No. 95. Plaintiffs oppose. Doc. No. 109. The exhibits in question are transcripts of depositions given by Mr. Frank Franzone and his office manager, Ms. Cynthia Zangari, in another federal civil lawsuit. Defendants advance various reasons to strike these exhibits. Chiefly, Defendants complain that the transcripts are unauthenticated and that the original deposition transcripts were corrected by the witnesses, and they imply that the copies before the Court are not the final accurate versions, without, however, submitting any other versions of the transcripts.

         Defendants' objections are without merit. The only evidence Defendants offer to support their objections comes from a single paragraph of an affidavit submitted by Mr. Frank Franzone. Doc. No. 95 at 2 (citing Doc. No. 92 ¶5). But that paragraph is no support, for although Mr. Franzone refuses to acknowledge that Plaintiffs' submitted transcripts are correct, he carefully avoids stating under oath that they are not-either generally or in any particular respect. Doc. No. 92 ¶5. Nor does he state that errata sheets were signed and submitted pursuant to the rules. Id.

         In response to Defendants' motion to strike, Plaintiffs have submitted a sworn affidavit establishing that the submitted transcripts are accurate and that they received neither signature pages nor errata sheets. Doc. No. 109-1. Under these circumstances, Defendants' foregoing objections are overruled.

         Defendants advance a plethora of other meritless arguments that do not require discussion (e.g. contending that under-oath statements of the owners and managers of party opponents are “clearly hearsay” or inadmissible or do not bind Defendants because they were not made by witnesses formally designated as 30(b)(6) witnesses). See generally Doc. No. 95. Defendants' motion to strike Exhibits E and F (Doc. No. 95) is DENIED.

         III. Plaintiffs' Motion to Strike Affidavit of Frank J. Franzone (Doc. No. 108).

         Plaintiffs move to strike the affidavit of Mr. Frank Franzone (Doc. No. 92) either in its entirety, or as to numerous identified paragraphs, on the grounds that Mr. Franzone's affidavit is directly contradicted either by his deposition testimony or his sworn responses to interrogatories, or otherwise contains inadmissible evidence. Doc. No. 108. Defendants oppose. Doc. No. 115. The Court addresses the relevant identified paragraphs in turn.

         a. Paragraphs 6-10

         In paragraph 8 of his Affidavit, Mr. Franzone describes various people as owning various percentages of Defendants Accurate and Engineered. Doc. No. 92 ¶ 8. Mr. Franzone provides no dates for these assertions though he goes on to state that in March 2016 he acquired all shares of both companies.

         In his deposition, by contrast, Mr. Franzone gave the following testimony:

Q: And ownership of the two companies. You own both Accurate and Frank Franzone [Inc]?
A: Yes
Q: Well, historically you owned ...

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