United States District Court, D. Massachusetts
LOUIS A. MANDARINI III et al., Plaintiffs,
ACCURATE ENGINEERED CONCRETE, INC. and FRANK J. FRANZONE, INC., Defendants.
ORDER ON MOTIONS TO STRIKE AND TO QUASH (DOC. NOS.
94, 95, 108, 116)
Sorokin United States District Judge
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.
Defendants' Motion to strike Paragraphs 18 and 27-31
of the Affidavit of Louis Mandarini (Doc. No. 94).
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. 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
Defendants' Motion to Strike Exhibits E and F to
Plaintiffs' Motion for Summary Judgment (Doc.
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
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.
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
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.
Plaintiffs' Motion to Strike Affidavit of Frank J.
Franzone (Doc. No. 108).
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.
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.
deposition, by contrast, Mr. Franzone gave the following
Q: And ownership of the two companies. You own both Accurate
and Frank Franzone [Inc]?
Q: Well, historically you owned ...