United States District Court, W.D. Arkansas, Texarkana Division
Susan O. Hickey United States District Judge.
the Court is Defendants' Motion to Strike Plaintiff's
Exhibits #21, #13, and #10, Plaintiff's Statement of
Material Facts, and Plaintiff's Response to
Defendants' Statement of Material Facts (ECF No. 55).
Plaintiff filed a response to Defendants' motion. (ECF
No. 59). Defendants filed a reply in further support of the
motion. (ECF No. 61). Also before the Court is Plaintiff
Petrolia Moss's Motion to Substitute Affidavit (ECF No.
The Court finds the matters ripe for consideration.
case is an employment-discrimination action brought under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
1983, and the Arkansas Civil Rights Act. Plaintiff is an
African American woman who previously worked as a teacher for
Separate Defendant Texarkana Arkansas School District.
Plaintiff alleges that Defendants engaged in discriminatory
practices against her on the basis of race by suspending her
without pay, imposing burdensome working conditions, engaging
in harassment, and making her working conditions intolerable.
filed a motion for summary judgment, along with an
accompanying brief in support and statement of facts. (ECF
Nos. 34, 37-38). Plaintiff filed a response to the motion, a
brief in support, a statement of facts, and a response to
Defendants' statement of facts. (ECF Nos. 47-50).
Defendants then filed the present motion to strike. (ECF No.
motion to strike, Defendants argue that the Court should
strike Plaintiff's Exhibits #21, #13, and #10-all of
which were filed as exhibits to Plaintiff's statement of
facts-as well as Plaintiff's statement of facts and
Plaintiff's response to Defendants' statement of
facts. Plaintiff's response argues that the motion to
strike should be denied, but asked the court in the
alternative for leave to file a new affidavit to substitute
in place of Exhibit #21. Defendants' reply opposes the
filing of a new affidavit and reiterates Defendants'
arguments regarding the other documents sought to be
motion to strike seeks to exclude five documents filed by
Plaintiff in opposition to summary judgment. The Court will
now turn its analysis to each document.
filed Exhibit #21-which purports to be her affidavit-as an
exhibit to her statement of facts. (ECF No. 49-21).
Defendants argue that Exhibit #21 should be stricken in its
entirety because it is not a valid affidavit, or
alternatively, that certain paragraphs should be stricken.
Plaintiff contends Exhibit #21 should not be stricken, but in
the alternative, moves for leave to file a revised affidavit
in substitution of Exhibit #21. The Court's analysis of
Exhibit #21 first requires an examination of whether it
satisfies federal affidavit requirements. If it does not, the
Court must then determine whether Plaintiff may file her
revised affidavit in substitution of Exhibit #21.
Validity of Purported Affidavit
56(c) of the Federal Rules of Civil Procedure instructs that
affidavits may be considered in ruling on a motion for
summary judgment. Brooks v. Tri-Sys., Inc., 425 F.3d
1109, 1111 (8th Cir. 2005). “District courts properly
exclude affidavits at the summary judgment level when the
affidavits fail to conform to the federal rules.”
See Boyce v. Interbake Foods, No. Civ. 09-4138-KES,
2011 WL 3843948, at *3 (D.S.D. Aug. 26, 2011) (citing
Malone v. Ameren UE, 646 F.3d 512, 512 (8th Cir.
2011)). “An affidavit, by definition, is a statement
reduced to writing and the truth of which is sworn to before
someone . . . authorized to administer an oath.”
Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir.
2006) (internal quotation marks and emphasis omitted). A
valid affidavit is signed, attested before a notary public,
and bears a notary's seal. Jenkins v. Winter,
540 F.3d 742, 747 (8th Cir. 2008). However, “Rule 56,
as amended in 2010, no longer requires a formal
affidavit.” Banks v. Deere, 829 F.3d 661, 668
(8th Cir. 2016). 28 U.S.C. § 1746 provides that an
unsworn declaration may serve as an alternative to a formally
attested affidavit if it is signed, dated, and states
“under penalty of perjury” that the information
within is true and correct. Id.
argue that Exhibit #21, which purports to be Plaintiff's
affidavit, should be stricken in its entirety because it is
unsigned, undated, and not notarized, and thus is
inadmissible. Defendants argue in the alternative that if
Exhibit #21 is not stricken in its entirety, 56 paragraphs in
Exhibit #21 should be stricken in whole or in part, on
various grounds. Plaintiff acknowledges that Exhibit #21, as
filed, is unsigned and undated, and asks the Court for
permission to file and substitute a “signed copy of her
Affidavit, with slight revisions thereto in order to address
some of the alleged deficiencies asserted by the Defendants
in their Motion to Strike.” (ECF No. 59).
#21 does not meet the requirements for a valid affidavit. It
is unsigned, undated, and does not bear a notary's stamp
or seal. Thus, Exhibit #21 cannot be considered a valid,
formal affidavit. See Jenkins, 540 F.3d at 747
(stating a valid affidavit is signed, attested before a
notary public, and bears a notary's seal);
Elder-Keep, 460 F.3d at 984 (excluding affidavits
that lacked signatures and attestation before a notary
public). Additionally, Exhibit #21 cannot qualify as an
unsworn declaration pursuant to 28 U.S.C. § 1746 because
it is unsigned, undated, and is not sworn to be true
“under penalty of perjury.” See Banks,
829 F.3d at 668 (providing requirements for a valid unsworn
declaration). Exhibit #21 is clearly defective ...