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.

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,

(1st Cir. 1993); Federico v. Town of

Rowley,

, 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,

, 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,

(1st Cir. 1997), (abrogated on other grounds by Crowley v. L.L. Bean, Inc.,

(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.,

(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.,

(1st

Cir. 1994) (sham affidavit rule); accord Porietis v. Tradesmen

Int’l, LLC, --- F. Supp. 3d ---,

(D.

Me. Jan. 3, 2017); Federico,

, 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.,

(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.

7