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Moss v. Texarkana Arkansas School District

United States District Court, W.D. Arkansas, Texarkana Division

December 20, 2016

PETROLIA MOSS PLAINTIFF
v.
TEXARKANA ARKANSAS SCHOOL DISTRICT; and THERESA COWLING, BECKY KESLER, and ROBIN HICKERSON, in their official and individual capacities DEFENDANTS

          ORDER

          Hon. Susan O. Hickey United States District Judge.

         Before 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. 59).[1] The Court finds the matters ripe for consideration.

         I. BACKGROUND

         This 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.

         Defendants 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. 55).

         In the 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 stricken.

         II. DISCUSSION

         Defendants' 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.

         A. Exhibit #21

         Plaintiff 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.

         1. Validity of Purported Affidavit

         Rule 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.

         Defendants 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).

         Exhibit #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 ...


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