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Trustees of Local 8A-28A Welfare Fund v. American Group Administrators

United States District Court, E.D. New York

August 25, 2017



          PEGGY KUO, United States Magistrate Judge

         Trustees of the Local 8A-28A Welfare Fund and the 401(k) Retirement Fund (together, “Plaintiffs”) brought this action against American Group Administrators, Inc. (“AGA”), Lloyd Goldstein, and various other Defendants under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1105(a), 1109(a) and 1132(a)(2)-(3). (Compl., Dkt 1.) Plaintiffs moved for partial summary judgment on their First and Sixth Claims. (See Dkt. 126.) AGA and Goldstein (together, the “AGA Defendants”) moved for summary judgment on all claims. (Dkt. 131.) The AGA Defendants moved to strike certain documents submitted by Plaintiffs in support of their motion for partial summary judgment and in opposition to the AGA Defendants' motion for summary judgment. (See Mot. to Strike, Dkt. 145.)

         The Honorable Roslynn R. Mauskopf has referred the Motion to Strike to the undersigned for decision. (See April 26, 2017 Order.)


         The AGA Defendants seek to strike three declarations submitted by Plaintiffs' attorney Danielle Carney (collectively, the “Declarations”). (See Carney Decl., Dkt. 127; Carney Opp'n Decl., Dkt. 134-2; Carney Reply Decl., Dkt. 143.) They also seek to strike Plaintiffs' Rule 56.1 statements on both motions for summary judgment (collectively, “Plaintiffs' Rule 56.1 Statements”). (See Pls. Rule 56.1 Stmt., Dkt. 126-2; Pls. Counter Stmt., Dkt. 134-1; Pls. R&Os, Dkt. 143-14.) They argue that the Court should strike the Declarations in their entirety because Ms. Carney “has no personal knowledge regarding the allegations in this action, or regarding any of the documents submitted by [Plaintiffs], ” and the Rule 56.1 Statements because they rely on the Carney Declaration, are argumentative, and fail to cite to supporting evidence. (Mot. to Strike at 3-4.) The AGA Defendants do not raise specific authentication objections to documents attached to the Declarations. (Mot. to Strike at 2-3.)

         In response, Plaintiffs explain the basis for Ms. Carney's relevant personal knowledge and the grounds for the authentication of exhibits attached to the Declarations. (See Pls. Resp., Dkt. 148.) Plaintiffs note that authentication is not in issue here because “almost all of the documents cited by the Plaintiff[s] were also cited by the AGA Defendants and disclosed by the AGA Defendants in discovery.” (Pls. Resp. at 2.)


         I. Legal Standard

         Motions to strike are held to a high standard, as they are “generally disfavor[ed].” Pharmacy, Inc. v. Am. Pharm. Partners, Inc., No. 05-CV-776 (DRH)(AKT), 2007 WL 2728898, at *1 (E.D.N.Y. Sept. 14, 2007). Courts use “a scalpel, not a butcher knife” in resolving such motions. Id. (citing Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001)).

         Federal Rule of Civil Procedure 56 requires that any declaration supporting or opposing a motion for summary judgment, including an attorney declaration, “be made on personal knowledge.” See Fed. R. Civ. P. 56(c)(4); 11 James W. Moore, Moore's Federal Practice § 56.94[7][a], at 56-245 (3d ed. 2011) (“an attorney's affidavit or declaration is subject to the same personal knowledge requirement as any other affidavit or declaration”). Attorney affidavits are nevertheless allowed “a degree of latitude to characterize the evidence by informing the court of the basis for the summary judgment motion and identifying the portion of the record counsel believes demonstrates the absence of genuine issues of fact.” Pharmacy, Inc., 2007 WL 2728898, at *3 (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). In addition, the parties' factual statements must be supported by citations to materials in the record, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).

         A document may be authenticated by the testimony of a witness with knowledge of the document. See Fed. R. Evid. 901(b)(1). The standard for authentication is satisfied “if a reasonable juror could find in favor of authenticity.” Jenkins v. Portfolio Recovery Assocs., LLC, No. 14-CV-3532 (SJF)(AKT), 2017 WL 1323798, at *4, n.4 (E.D.N.Y. Feb. 13, 2017) (citation omitted). Certain categories of evidence are considered “self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted.” See Fed. R. Evid. 902.

         II. Attorney Declarations

         The AGA Defendants argue that Ms. Carney “has no personal knowledge regarding the allegations in this action or regarding any of the documents submitted by [Plaintiffs].” (Mot. to Strike at 3.) The Motion to Strike advances two related arguments with regard to personal knowledge. The first is that certain statements made within the text of the Declarations themselves are not based on Ms. Carney's firsthand experience with the content described. The second is that Ms. Carney does not have sufficient personal knowledge to authenticate and introduce into the record the documents attached to the Declarations.

         The AGA Defendants move to strike various statements in the Carney Declaration and Carney Reply Declaration that concern Ms. Carney's representation of Plaintiffs. (Mot. to Strike at 3.) These include introductory paragraphs stating the purposes of the Declaration and Plaintiffs' motion for summary judgment, describing the claims asserted by Plaintiffs in the Complaint, and asserting that Plaintiffs are an employee benefit fund within the meaning of ERISA. (See Carney Decl. ¶¶ 2, 4, 6.) None of these statements are argumentative or speculative; all are within the attorney's personal knowledge given her role in this action. See Menlo v. Friends of Tzeirei Chabad in Israel, Inc., No. 11-CV-1978 (JPO), 2012 WL 137504, at *3-5 ...

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