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Peters v. Molloy College of Rockville Centre

August 10, 2010

JOYCE PETERS, PLAINTIFF(S),
v.
MOLLOY COLLEGE OF ROCKVILLE CENTRE, SUSAN VITALE (IN HER OFFICIAL AND INDIVIDUAL CAPACITIES), DOLORES PARRY (IN HER OFFICIAL AND INDIVIDUAL CAPACITIES), JEANNINE MULDOON (IN HER OFFICIAL AND INDIVIDUAL CAPACITIES), AND RICHARD SCHURE (IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES), DEFENDANT(S).



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court is the defendants' motion to strike (1) portions of plaintiff's declaration and Rule 56.1 Statement submitted in opposition to defendants' motion for summary judgment, and (2) portions of the declarations of non-party witnesses Andrea Morgan-Eason and Adrianne Bothwell, on the grounds that they are not based on personal knowledge and/or contain hearsay. Defendants also seek to preclude plaintiff from submitting into evidence a signed copy of a letter dated April 26, 2006, written by plaintiff to Molloy College President Dr. Drew Bogner, on the grounds that plaintiff failed to disclose the letter during discovery. Opposing defendants' motion, plaintiff also seeks sanctions against defendants' counsel, pursuant to Federal Rules of Civil Procedure 11 and 37. For the following reasons, both defendants' and plaintiff's motions are denied.

FACTS

Plaintiff, Joyce Peters, enrolled in Molloy College's graduate nursing program in 2004, seeking to obtain her Master's Degree in Nursing. (Compl. ¶¶ 13.) During the fall semester of 2006, while enrolled in Nursing 555, taught by defendant Susan Vitale ("Vitale"), plaintiff was required to submit a research proposal as her final project. (Compl. ¶ 16-17.) Plaintiff received a failing grade for her final project, which resulted in her being denied graduation and ultimately her Master's Degree. (Compl. ¶¶ 18, 41.)

Plaintiff commenced the within action on June 25, 2007, alleging the following: (1) race discrimination, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 42 U.S.C. § 1981; (2) breach of contract; (3) defamation; (4) selective enforcement in violation of Section 296 of the New York Human Rights Law; and (5) conspiracy, pursuant to 42 U.S.C. §§ 1985 and 1986. Following a motion to dismiss by defendants, plaintiff's claims pursuant to 42 U.S.C. §§ 1985 and 1986 were dismissed in their entirety. (Mem. & Order of Hurley, J., dated July 8, 2008, at 18-20.) Plaintiff's Title VI, Section 1981 and breach of contract claims were also dismissed against the individual defendants in their individual capacities. (Id. at 13-15.)

On December 2, 2009, defendants filed a motion for summary judgment. Plaintiff filed her opposition to the motion on December 3, 2009. By letter dated December 4, 2009, defendants sought leave to file the within motion to strike, which was referred to the undersigned by Judge Hurley by Order dated December 11, 2009. The parties subsequently filed formal motion papers.

DISCUSSION

I. Legal Standard

"Whether to grant or deny a motion to strike is vested in the trial court's sound discretion." Pharmacy, Inc. v. Am. Pharm. Partners, Inc., No. 05-776, 2007 WL 2728898, at *1 (E.D.N.Y. Sept. 14, 2007) (citing Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999)) (additional citation omitted). When resolving motions to strike, courts use "a scalpel, not a butcher knife." Pharmacy, Inc., 2007 WL 2728898, at *1 (quoting Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001)). Put another way, "the court will strike only those portions that are improper." Pharmacy, Inc., 2007 WL 2728898, at *1. When seeking to strike, the moving party "bears a heavy burden, as courts generally disfavor motions to strike." Id. (citing Morse v. Weingarten, 777 F. Supp. 312, 319 (S.D.N.Y. 1991)) (additional citation omitted).

II. Plaintiff's Declaration

Rule 56(e) of the Federal Rules of Civil Procedure provides that, in the context of a summary judgment motion, "[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e). Accordingly, "[a] court may . . . strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." Hollander, 172 F.3d at 198 (citation omitted); Century Pacific, Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d 206, 214 (S.D.N.Y. 2007) (citations omitted). "Alternatively, a court may, in considering a motion for summary judgment, simply decline to consider those aspects of a supporting affidavit that do not appear to be based on personal knowledge or are otherwise inadmissible." Flaherty v. Filardi, No. 03 Civ. 2167, 2007 WL 163112, at *4 (S.D.N.Y. Jan. 24, 2007) (quoting Doe v. Nat'l Bd. of Podiatric Med. Examiners, No. 03 Civ. 4034, 2004 WL 912599, at *4 (S.D.N.Y. Apr. 29, 2004)) (additional citations omitted).

"The test for admissibility is whether a reasonable trier of fact could believe the witness had personal knowledge." Flaherty, 2007 WL 163112, at *5 (quoting Searless v. First Fortis Life Ins. Co., 98 F. Supp. 2d 456, 461 (S.D.N.Y. 2000)). "The lack of certain specific details or arguably vague statements will not render the affidavit inadmissible, but affect the weight and credibility of the testimony, which have to be determined by the trier of fact at trial." Flaherty, 2007 WL 163112, at *5 (quoting Zakre v. Norddeutsche Landesbank Girozentrale, 396 F. Supp. 2d 483, 504 (S.D.N.Y. 2005)).

Defendants herein assert that substantial portions of plaintiff's declaration must be struck because either plaintiff lacks personal knowledge of what she is averring, the averments constitute inadmissible hearsay or they contradict plaintiff's prior deposition testimony. Specifically, defendants assert that the following paragraphs of plaintiff's declaration are not based on personal knowledge and should therefore be struck: 20, 28, part of 39, part of 41, 49-52, 56-57, 59-62, 65, 77-81, 87-92, 95-96, and 98-102. Defendants further assert that the following paragraphs should be struck as inadmissible hearsay: 16-17, 20, 27-28, part of 41, 89, 94-96, 98-101, and 103. Finally, defendants assert that paragraphs ...


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