United States District Court, E.D. New York
TRUSTEES OF THE LOCAL 8A-28A WELFARE FUND, and the 401(K) RETIREMENT FUND, Plaintiffs,
AMERICAN GROUP ADMINISTRATORS, et al., Defendants.
OPINION AND ORDER
KUO, United States Magistrate Judge
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.)
Honorable Roslynn R. Mauskopf has referred the Motion to
Strike to the undersigned for decision. (See April
26, 2017 Order.)
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.)
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.)
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)).
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[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).
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.
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.
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