Hess v. Multnomah County

211 F.R.D. 403, 2001 U.S. Dist. LEXIS 22191, 2001 WL 34043484
CourtDistrict Court, D. Oregon
DecidedNovember 21, 2001
DocketNo. CIV-00-1483-ST
StatusPublished
Cited by3 cases

This text of 211 F.R.D. 403 (Hess v. Multnomah County) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hess v. Multnomah County, 211 F.R.D. 403, 2001 U.S. Dist. LEXIS 22191, 2001 WL 34043484 (D. Or. 2001).

Opinion

OPINION AND ORDER

STEWART, United States Magistrate Judge.

INTRODUCTION

Plaintiff, Carolina Hess (“Hess”), filed this action on November 1, 2000, alleging that her former employer, Multnomah County, and her former supervisor, Bonnie Teschner (“Teschner”), terminated her because she is Hispanic. She alleges a claim for race discrimination, including a hostile work environment, in violation of Title VII, 42 USC § 2000e, et seq, 42 USC § 1983, and ORS 659.030(l)(a) and (b). Accordingly, Hess seeks: (1) compensation for lost back pay, front pay, work-related benefits; (2) non-economic damages; (3) punitive damages; and (4) attorney fees and costs, including expert witness fees.

This court has federal question jurisdiction under 28 USC § 1331. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c).

Defendants’ Motions to Strike Plaintiffs Concise Statement of Material Facts and Evidence (docket # 37) is now before the court.1 For the reasons that follow, those motions are granted in part and denied in part.

DISCUSSION

I. Motion 1: LR 56.1

Defendants first seek to strike Hess’s Concise Statement of Facts and Response in [405]*405Opposition to Defendants’ Motion for Summary Judgment for failure to comply with Local Rule (“LR”) 56.1. Pursuant to LR 56.1, a party’s opposition to a motion for summary judgment must include a separate response to each numbered paragraph of the moving party’s concise statement of facts by “accepting or denying each fact” or “articulating opposition to the moving party’s contention or interpretation of the undisputed material fact.”

Contrary to defendants’ assertion, Hess has complied with LR 56.1. She responded to each numbered paragraph of defendants’ Concise Statement of Facts by accepting some facts, not accepting and disputing others, and providing additional facts. Curiously, Hess does dispute some of defendants’ facts for which defendants cite Hess’s deposition as support. Although it would be helpful to know why Hess denies those facts, LR 56.1 does not require such an explanation. Hess’s form of response certainly has caused this court and defendants unnecessary work and shows why an amendment to LR 56.1 may be warranted. Suffice it to say that this court will not rely on Hess’s or defendants’ spin of the facts, but will rely on the deposition excerpts, as well as other sworn testimony and authenticated documents. Accordingly, resolution of defendants’ Motion for Summary Judgment has taken much longer than this court would prefer.

Defendants also complain that Hess’s additional facts rely solely on her own affidavit in an impermissible effort to create an issue of material fact. See Delange v. Dutra Constr. Co., 183 F.3d 916, 921 (9th Cir.1999). However, Hess also has submitted declarations of two coworkers, deposition excerpts of Tes-chner, and other records. Thus, Motion 1 is denied.

II. Motion 2: Argument Rather Than Fact

Second, defendants complain that Hess has filled her additional “facts” with improper conclusions, argument and implications which they move to strike. Some of Hess’s additional facts are purely argument and must be stricken. Other facts are clearly Hess’s own opinions. However, FRE 701 allows opinion or inference testimony of a lay witness if it is rationally based on the perception of the witness and helpful in understanding a fact in issue. Hess does not violate FRE 701 by explaining how she believed that Teschner was retaliating against her. Other opinions by Hess, however, do not assist the court and must be stricken.

Accordingly, Motion 2 is granted as to the yellow highlighted portions of paragraphs 14-16, 17a, d (last sentence), f-i, 1, p, q, s, v, dd, ee, 20, 21, 23 and 24. In addition, this court will ignore Hess’s references to implications to be drawn from various documents.

III. Motions 3 and 4: Unauthenticated ‘ Documents and Unsworn Affidavits

Third, defendants move to strike all of the exhibits attached to the affidavit of Hess’s attorney, Tom Steenson (“Steenson”), because they are unauthenticated and unsworn and also move to strike portions of Hess’s additional facts which are supported by those exhibits.

To be considered by the court on motions for summary judgment “documents must be authenticated by and attached to an affidavit that meets the requirements of [FRCP] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550-51 (9th Cir.1989), citing Canada v. Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.1987). A document that lacks proper foundation for authentication cannot be used to defeat a motion for summary judgment. Canada, 831 F.2d at 925. Authenticating a document requires “evidence sufficient to support a finding that the matter in question is what its proponent claims.” See FRE 901(a). Additionally, FRCP 56(e) provides:

Supporting ... affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affi-ant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in
[406]*406an affidavit shall be attached thereto or served therewith ....

Steenson’s Affidavit states merely that “[attached are true copies of the following documents which are offered as exhibits in opposition to Defendant’s Motion for Summary Judgment” and then lists those exhibits. The declaration of an attorney is sufficient to authenticate such discovery documents, such as answers to deposition questions, interrogatories or requests for admissions. Even then, inadmissible statements within those discovery documents, such as hearsay and conclusions, are as objectionable as they would be in affidavits. See Garside v. Oseo Drug, Inc., 895 F.2d 46, 49-50 (1st Cir.1990).

The exhibits attached to Steenson’s Affidavit include Tesehner’s deposition excerpts and declarations by Hess and two of her coworkers. Steenson clearly has the personal knowledge of matters occurring during the course of the lawsuit to authenticate a deposition transcript. Thus, Teschner’s deposition testimony is properly authenticated.

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Bluebook (online)
211 F.R.D. 403, 2001 U.S. Dist. LEXIS 22191, 2001 WL 34043484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hess-v-multnomah-county-ord-2001.