UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
R.N. b/n/f of P.N. and R.N. individually
v. Civil No. 15-cv-420-JD Opinion No. 2017 DNH 042 Geoffrey Rogan
O R D E R
R.N. brings suit on behalf of his son, P.N., and himself,
alleging federal and state claims that arose from an incident
when New Hampshire State Trooper, Geoffrey Rogan, while off duty
intervened to stop P.N., who was wearing a costume, from
interacting with cars that were driving down Continental
Boulevard in Merrimack, New Hampshire. Rogan moved for summary
judgment, and R.N. objected. Rogan moves to strike certain
information and statements in R.N.’s objection, and R.N. objects
to that motion.
Rogan moves to strike personal information about Rogan
presented in R.N.’s memorandum in support of his objection to
summary judgment that Rogan contends is irrelevant, unfairly
prejudicial, speculative, inadmissible, and contrary to the
factual record. Rogan also moves to strike certain statements
in R.N.’s objection and in the affidavits of R.N. and P.N.
because those statements are not supported by record evidence and contradict the deposition testimony of R.N. and P.N. R.N.
objects to the motion to strike on the grounds that it attacks
evidence that should be addressed in a motion in limine for
trial, not in the context of summary judgment, and that the
challenged statements are not contradicted by deposition
testimony.
A. Personal Information
Rogan relies on Federal Rule of Civil Procedure 56(e) as
grounds to strike the challenged evidence about him. It appears
that Rogan may have intended to rely on the version of Rule
56(e) before the 2010 amendments. In any case, Rogan is correct
that evidence that would not be admissible at trial is not
competent to support summary judgment. See, e.g., Horta v.
Sullivan, 4 F.3d 2, 8 (1st Cir. 1993); Federico v. Town of
Rowley, 2016 WL 7177888, at *1 (D. Mass. Dec. 7, 2016).
Ordinarily, a challenge to such evidence is presented in the
objection to summary judgment.1 Fed. R. Civ. P. 56(c)(2);
Wilber v. Curtis, 2016 WL 5334649, at *2 (D. Mass. Sept. 22,
2016).
Motions to strike pursuant to Federal Rule of Civil 1
Procedure 12(f) are limited to challenges to pleadings. Because a motion for summary judgment is not a pleading, Rule 12(f) does not apply. Pilgrim v. Trs. of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997), (abrogated on other grounds by Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002)).
2 It appears that the personal information about Rogan that
R.N. provides in his objection is irrelevant and immaterial to
his claims and that it was included only to present Rogan in an
unfavorable light. In his objection to Rogan’s motion to
strike, R.N. argues that there is record support for the
personal information but does not argue or show that the
information is relevant or material to prove his claims. The
court will not consider the challenged personal information for
purposes of Rogan’s motion for summary judgment.2
B. Affidavits and Statements
Rogan also moves to strike certain other statements in
R.N.’s objection. Some of the statements were provided in
P.N.’s and R.N.’s affidavits, and other statements appear to be
challenged on the grounds that they lack record support.3
1. Affidavits
Rogan contends that statements in the affidavits provided
by P.N. and R.N. are unsupported and are contrary to their
deposition testimony. R.N. objects, arguing that the affidavits
The personal information need not be struck as the objection 2
was filed under seal.
Rogan presents jumbled arguments challenging statements in 3
R.N.’s objection with little development or citation to authority. The court has sorted through the challenges as they appear to be raised.
3 do not need to be supported by evidence in the records and that
they do not contradict deposition testimony.
A motion to strike, other than a motion under Federal Rule
of Civil Procedure 12(f), may be used to challenge parts of
affidavits submitted in support of, or in opposition to, summary
judgment. Turner v. Hubbard Sys., Inc., 153 F. Supp. 3d 493,
495-96 (D. Mass. 2015). Affidavits used to oppose summary
judgment “must be based upon personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4). In addition, “[w]hen an interested
witness has given clear answers to unambiguous questions, he
cannot create a conflict and resist summary judgment with an
affidavit that is clearly contradictory, but does not give a
satisfactory explanation of why the testimony is changed.”
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4 (1st
Cir. 1994) (sham affidavit rule); accord Porietis v. Tradesmen
Int’l, LLC, --- F. Supp. 3d ---, 2017 WL 27935, at *2, n.3 (D.
Me. Jan. 3, 2017); Federico, 2016 WL 7177888, at *1.
a. Competence of affidavits
Rogan challenges certain statements in P.N.’s objection
because “[t]hese statements are unsupported by any witness’
[sic] deposition testimony and rely purely on P.N.’s and R.N.’s
4 second-in-time affidavits.” He argues that because other
witnesses contradict the statements in the affidavits, the
affidavits cannot be considered for summary judgment.
While statements in affidavits must be based on the
affiants’ personal knowledge, there is no requirement that
statements in affidavits be supported by other record evidence.
Such a requirement would contradict Rule 56(c)(1)(A). Further,
affidavit statements that are contradicted by other record
evidence are disputed for purposes of summary judgment.4
Therefore, to the extent Rogan seeks to exclude statements in
R.N.’s objection because they are supported by the affidavits of
R.N. and P.N. without other corroborating evidence and because
the statements are contradicted by other record evidence, that
is not a valid objection in this case.
b. Sham affidavits
Rogan contends that P.N.’s and R.N.’s statements in their
affidavits are contradicted by their deposition testimony. As
Rogan’s analysis demonstrates, the statements are not directly
contradicted by their deposition testimony but instead are open
to various interpretations. Rogan has not shown that P.N. and
R.N. gave sham affidavits.
4 The court does not make credibility determinations for purposes of summary judgment. See Anderson v. Liberty Lobby, Inc.,
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
R.N. b/n/f of P.N. and R.N. individually
v. Civil No. 15-cv-420-JD Opinion No. 2017 DNH 042 Geoffrey Rogan
O R D E R
R.N. brings suit on behalf of his son, P.N., and himself,
alleging federal and state claims that arose from an incident
when New Hampshire State Trooper, Geoffrey Rogan, while off duty
intervened to stop P.N., who was wearing a costume, from
interacting with cars that were driving down Continental
Boulevard in Merrimack, New Hampshire. Rogan moved for summary
judgment, and R.N. objected. Rogan moves to strike certain
information and statements in R.N.’s objection, and R.N. objects
to that motion.
Rogan moves to strike personal information about Rogan
presented in R.N.’s memorandum in support of his objection to
summary judgment that Rogan contends is irrelevant, unfairly
prejudicial, speculative, inadmissible, and contrary to the
factual record. Rogan also moves to strike certain statements
in R.N.’s objection and in the affidavits of R.N. and P.N.
because those statements are not supported by record evidence and contradict the deposition testimony of R.N. and P.N. R.N.
objects to the motion to strike on the grounds that it attacks
evidence that should be addressed in a motion in limine for
trial, not in the context of summary judgment, and that the
challenged statements are not contradicted by deposition
testimony.
A. Personal Information
Rogan relies on Federal Rule of Civil Procedure 56(e) as
grounds to strike the challenged evidence about him. It appears
that Rogan may have intended to rely on the version of Rule
56(e) before the 2010 amendments. In any case, Rogan is correct
that evidence that would not be admissible at trial is not
competent to support summary judgment. See, e.g., Horta v.
Sullivan, 4 F.3d 2, 8 (1st Cir. 1993); Federico v. Town of
Rowley, 2016 WL 7177888, at *1 (D. Mass. Dec. 7, 2016).
Ordinarily, a challenge to such evidence is presented in the
objection to summary judgment.1 Fed. R. Civ. P. 56(c)(2);
Wilber v. Curtis, 2016 WL 5334649, at *2 (D. Mass. Sept. 22,
2016).
Motions to strike pursuant to Federal Rule of Civil 1
Procedure 12(f) are limited to challenges to pleadings. Because a motion for summary judgment is not a pleading, Rule 12(f) does not apply. Pilgrim v. Trs. of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997), (abrogated on other grounds by Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002)).
2 It appears that the personal information about Rogan that
R.N. provides in his objection is irrelevant and immaterial to
his claims and that it was included only to present Rogan in an
unfavorable light. In his objection to Rogan’s motion to
strike, R.N. argues that there is record support for the
personal information but does not argue or show that the
information is relevant or material to prove his claims. The
court will not consider the challenged personal information for
purposes of Rogan’s motion for summary judgment.2
B. Affidavits and Statements
Rogan also moves to strike certain other statements in
R.N.’s objection. Some of the statements were provided in
P.N.’s and R.N.’s affidavits, and other statements appear to be
challenged on the grounds that they lack record support.3
1. Affidavits
Rogan contends that statements in the affidavits provided
by P.N. and R.N. are unsupported and are contrary to their
deposition testimony. R.N. objects, arguing that the affidavits
The personal information need not be struck as the objection 2
was filed under seal.
Rogan presents jumbled arguments challenging statements in 3
R.N.’s objection with little development or citation to authority. The court has sorted through the challenges as they appear to be raised.
3 do not need to be supported by evidence in the records and that
they do not contradict deposition testimony.
A motion to strike, other than a motion under Federal Rule
of Civil Procedure 12(f), may be used to challenge parts of
affidavits submitted in support of, or in opposition to, summary
judgment. Turner v. Hubbard Sys., Inc., 153 F. Supp. 3d 493,
495-96 (D. Mass. 2015). Affidavits used to oppose summary
judgment “must be based upon personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4). In addition, “[w]hen an interested
witness has given clear answers to unambiguous questions, he
cannot create a conflict and resist summary judgment with an
affidavit that is clearly contradictory, but does not give a
satisfactory explanation of why the testimony is changed.”
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4 (1st
Cir. 1994) (sham affidavit rule); accord Porietis v. Tradesmen
Int’l, LLC, --- F. Supp. 3d ---, 2017 WL 27935, at *2, n.3 (D.
Me. Jan. 3, 2017); Federico, 2016 WL 7177888, at *1.
a. Competence of affidavits
Rogan challenges certain statements in P.N.’s objection
because “[t]hese statements are unsupported by any witness’
[sic] deposition testimony and rely purely on P.N.’s and R.N.’s
4 second-in-time affidavits.” He argues that because other
witnesses contradict the statements in the affidavits, the
affidavits cannot be considered for summary judgment.
While statements in affidavits must be based on the
affiants’ personal knowledge, there is no requirement that
statements in affidavits be supported by other record evidence.
Such a requirement would contradict Rule 56(c)(1)(A). Further,
affidavit statements that are contradicted by other record
evidence are disputed for purposes of summary judgment.4
Therefore, to the extent Rogan seeks to exclude statements in
R.N.’s objection because they are supported by the affidavits of
R.N. and P.N. without other corroborating evidence and because
the statements are contradicted by other record evidence, that
is not a valid objection in this case.
b. Sham affidavits
Rogan contends that P.N.’s and R.N.’s statements in their
affidavits are contradicted by their deposition testimony. As
Rogan’s analysis demonstrates, the statements are not directly
contradicted by their deposition testimony but instead are open
to various interpretations. Rogan has not shown that P.N. and
R.N. gave sham affidavits.
4 The court does not make credibility determinations for purposes of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
5 C. Deposition Testimony
To the extent Rogan challenges P.N.’s deposition testimony
as being unsupported by the evidence, he has not shown that is a
valid basis for disregarding deposition testimony. Rogan does
not explain why deposition pages not cited in the objection must
be struck from the record. To the contrary, additional parts of
depositions may give context to specific statements.
D. Unsupported statements
A party opposing summary judgment must show that a fact
cannot be disputed or is disputed by citing to appropriate
materials in the record. Fed. R. Civ. P. 56(c)(1). To the
extent affidavits and deposition testimony cited by R.N. do not
support statements in the objection, however, those statements
are not properly supported and will not be considered. Fed. R.
Civ. P. 56(e).
For example, R.N. states in the objection to summary
judgment that P.N. never engaged in any threatening behavior,
never entered the street, and that Rogan did not identify
himself until P.N. was tackled. Those statements are not
supported by the record cited. Instead, P.N.’s behavior is open
to interpretation. He was on the sidewalk part of the time, and
he did not hear Rogan identify himself. The statements in the
objection are taken in light of the supporting record.
6 Conclusion
For the foregoing reasons, the defendant’s motion to strike
(document no. 25) is granted to the extent the court will not
consider the personal information about the defendant that is
included in the plaintiff’s objection to summary judgment or
statements that are not properly supported and is denied as to
the remaining issues.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
March 6, 2017
cc: Matthew T. Broadhead, Esq. Lawrence A. Vogelman, Esq.