Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Moss v. Texarkana Arkansas School District

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

January 31, 2017

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

          ORDER

          Susan O. Hickey United States District Judge

         Before the Court is Defendants' Motion to Strike Plaintiff's Substituted Affidavit and Plaintiff's Statement of Material Facts. (ECF No. 65). Plaintiff Petrolia Moss filed a response. (ECF No. 66). Also before the Court is Plaintiff's Motion to Substitute Affidavit.[1] (ECF No. 66). The Court finds the matters ripe for consideration.

         I. DISCUSSION

         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 ask the Court to strike Plaintiff's affidavit (ECF No. 64), her statement of material facts (ECF No. 49), and her response to Defendants' statement of material facts (ECF No. 48). The Court will address each in turn.

         A. Plaintiff's Affidavit

         On June 1, 2016, 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 summary judgment motion, a brief in support, a statement of facts, and a response to Defendants' statement of facts. (ECF Nos. 47-50). Defendants then filed a motion to strike several of Plaintiff's supporting documents, including Plaintiff's affidavit, which was unsigned, undated, and not notarized. (ECF No. 55). Plaintiff filed a response to the motion to strike, arguing that the affidavit should not be stricken, or in the alternative, that the Court should allow Plaintiff to substitute a new affidavit. (ECF No. 59). Plaintiff's proposed substituted affidavit was signed, contained attestment language, and bore a notary seal, but contained alterations to seven of the original affidavit's paragraphs based on Defendants' arguments in their motion to strike.

         The Court granted Defendants' motion to strike with respect to the original affidavit, reasoning that the affidavit did not comply with federal affidavit requirements. The Court also ruled that Plaintiff would not be allowed to substitute a revised affidavit that made substantive alterations to the original. However, the Court gave Plaintiff fourteen days to file a properly signed and notarized affidavit that was “otherwise identical” to the original affidavit.

         On December 28, 2016, Plaintiff timely filed a new affidavit to be substituted in place of the original affidavit. (ECF No. 64). This new affidavit altered fifteen paragraphs from the language found in the original affidavit, including the addition and deletion of entire sentences, a paragraph, and the alterations of names and dates. On January 6, 2017, Defendants filed the instant motion, asking the Court to strike Plaintiff's new affidavit in its entirety for failure to comply with the Court's order, or in the alternative, to strike certain paragraphs on various grounds. Defendants' motion also asks the Court to strike Plaintiff's statement of material facts and her response to Defendants' statement of material facts.

         On January 20, 2017, Plaintiff filed a response, conceding that the new affidavit did not comply with the Court's instruction that it must be signed and notarized, but “otherwise identical” to the original affidavit. (ECF No. 66). Plaintiff explains that Plaintiff's counsel emailed the affidavit to her to sign and return. She made material alterations to certain paragraphs of the affidavit before signing and returning it to counsel. Plaintiff's counsel states that Plaintiff did not inform him that she made alterations to the affidavit. Plaintiff's counsel later filed the affidavit without reading over it to ensure that the affidavit's language complied with the Court's instructions that the new affidavit be “otherwise identical” to the original affidavit. Plaintiff now asks the Court for leave to file another affidavit, substituting it in place of the original. Plaintiff maintains that this proposed affidavit will be identical to the original affidavit, corrected only to include her signature and a notary seal.

         Upon consideration, the Court finds that good cause for Plaintiff's motion to substitute affidavit has not been shown. Despite having no obligation to do so, the Court gave Plaintiff an opportunity to substitute a new affidavit after the Court struck her original affidavit on December 20, 2016. The Court explicitly stated that this new affidavit must be identical in all respects to the original affidavit, except for the addition of a signature and notary seal. Plaintiff then filed a new affidavit containing substantial alterations to fifteen paragraphs, including the addition, deletion, and revision of sentences, paragraphs, names, and dates.[2] This new affidavit is in clear violation of the Court's order that it be “otherwise identical” to the original affidavit. Plaintiff also asks the Court to allow the filing of a new affidavit in substitution, which if granted, would necessitate allowing Defendants the opportunity to file a third motion to strike. This affidavit cycle has delayed the Court's ruling on Defendants' summary judgment motion for over a month, and the trial of this matter is approaching.[3] Accordingly, the Court finds that Plaintiff's affidavit (ECF No. 64) should be and hereby is STRICKEN in its entirety. Additionally, the Court will not permit Plaintiff to file another affidavit in substitution.

         B. Plaintiff's Statement of Material Facts

         Defendants ask the Court to strike Plaintiff's statement of material facts. Defendants argue that the statement of facts should be stricken because it relies entirely on Plaintiff's affidavit, is self-serving, and fails to contain citations to the record to support the factual assertions. In the alternative, Defendants move to strike certain paragraphs on various grounds. Plaintiff directs the Court to her argument in response to Defendants' first motion to strike: that the statement of facts should not be stricken because it is adequately stated on personal knowledge and is supported by the record.

         Federal Rule of Civil Procedure 56(c)(1) provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to materials in the record or by showing either that the cited materials do not establish the absence of a genuine dispute ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.