United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
matter comes before the court on the Motion to Strike
Material and Portions of Affidavits Pursuant to Fed.R.Civ.P.
56(c)(2) and Fed.R.Civ.P. 56(c)(4) [Doc. #189] of plaintiff
Michelle Dawn Murphy. This Opinion and Order does not address
Murphy's request to strike exhibits 26 and 27 to the
City's motion for summary judgment [Doc. #175], which
will be addressed in a separate order. For the reasons
discussed below, the remainder of the Motion to Strike is
granted in part, and denied in part.
City Exhibit 40, Affidavit of Kenneth Mackinson [Doc.
to Fed.R.Civ.P. 56(c)(4), Murphy moves to strike paragraphs
3, 4, 5, 6, 8 and 9 of the affidavit of retired Tulsa police
officer Kenneth Mackinson, attached as exhibit 40 to the
City's motion for summary judgment. [Doc. #189, pp. 1-5].
The court will separately consider each paragraph.
first objects to paragraphs 3 and 4 of the Mackinson
affidavit on the basis that the paragraphs do not support the
material fact (fact no. 56) for which the paragraphs are
cited in the City's motion for summary judgment. As a
result, Murphy asserts that paragraphs 3 and 4 must be
stricken. The court is not persuaded. Although a party moving
for summary judgment must submit admissible evidence to
support their material facts, when a court concludes that the
submitted evidence does not support the fact, the proper
procedure under Fed.R.Civ.P. 56 is for the court to find that
the affidavit does not support the alleged material fact and
treat the fact as disputed, not strike the submitted
evidence or factual assertion.
moves to strike paragraph 5 of the Mackinson affidavit on the
basis of hearsay, lack of personal knowledge and
untruthfulness. Paragraph 5 states: “Additionally, in
order to maintain CLEET (Council on Law Enforcement Education
and Training) certification, during the time I was in the
department, all Tulsa Police Officers were required to attend
forty hours of in-service training yearly that included a
legal block regarding legal current procedures.” [Doc.
#175-40, ¶ 5]. Paragraph 5 does not include any specific
out-of-court statement and, therefore, is not hearsay.
See Marland v. Asplundh Tree Expert Co., No.
14-CV-040-TS, 2017 WL 435764, at *6 (D. Utah Jan. 31, 2017)
(testimony regarding person's understanding of situation
that did not contain any out-of-court statement was not
impermissible hearsay). See also Fed. R. Evid. 801.
Nor is the truthfulness of paragraph 5 a valid basis for the
court to strike that portion of the affidavit. See Billy
v. Curry Cty. Bd. of Cty. Comm'rs, No.
13-CV-0032-MCA-LAM, 2014 WL 11430978, at *5 (D.N.M. Sept. 30,
2014) (cautioning against striking portions of affidavits on
basis of veracity as it would require the court to improperly
regard to lack of personal knowledge, pursuant to
Fed.R.Civ.P. 56(c)(4), “[a]n affidavit or declaration
used to support or oppose a motion must be made on 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.” Although Murphy
moves to strike portions of Mackinson's affidavit
pursuant to Fed.R.Civ.P. 56(c)(4), the court will also
consider the standards of Fed.R.Evid. 602, which permits a
witness to testify to a matter “only if evidence is
introduced sufficient to support a finding that the witness
has personal knowledge of the matter.” Fed.R.Evid. 602.
See also Argo v. Blue Cross & Blue Shield of Kan.,
Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (noting that,
although district court relied on local rule requiring
affidavits to be made on personal knowledge in striking part
of affidavit, court “might just as easily relied
on” Fed.R.Civ.P. 56 or Fed.R.Evid. 602). “Under
the personal knowledge standard, an affidavit is inadmissible
if ‘the witness could not have actually perceived or
observed that which he testifies to.'” Id.
(quoting United States v. Sinclair, 109 F.3d 1527,
1536 (10th Cir. 1997)). “‘[S]tatements of mere
belief' in an affidavit must be disregarded.”
Argo, 452 F.3d at 1200 (quoting Tavery v. United
States, 32 F.3d 1423, 1427 n.4 (10th Cir. 1994)).
in paragraph 5, Mackinson avers “in order to maintain
CLEET (Council on Law Enforcement Education and Training)
certification, during the time I was in the
department, all Tulsa Police Officers were required to
attend forty hours of in-service training yearly that
included a legal block regarding current legal
procedures.” [Doc. #175-40, ¶ 5 (emphasis added)].
Mackinson also avers that he is a retired Tulsa police
officer who completed the Tulsa Police Academy in October
1978 and retired in June 2003, and that he has personal
knowledge of the facts stated in the affidavit. [Doc.
#175-40, ¶¶ 1-2]. Mackinson was a Tulsa police
officer for twenty-five (25) years and unquestionably has
knowledge of his own training and certification
requirements. The court is persuaded that paragraph 5
reflects matters of which Mackinson has personal knowledge
based on his own training and experience in the Tulsa Police
moves to strike paragraph 6 on the basis of hearsay and
personal knowledge.Paragraph 6 states: “Every officer
also received monthly legal bulletins regarding new
ordinances, statutes, appellate court decisions and United
States Supreme Court decisions.” [Doc. #175-40, ¶
6]. Because paragraph 6 does not include a specific
out-of-court statement, paragraph 6 is not impermissible
hearsay. See Marland, 2017 WL 435764, at *6. Nor
does paragraph 6 lack personal knowledge. When read in
context of the remainder of the affidavit, the court
concludes that paragraph 6 conveys information related to the
Tulsa Police Department's general training procedures
during Mackinson's time at the department. Paragraph 6
follows averments regarding the training that Mackinson
personally received. Further, it immediately follows
paragraph 5 which, as previously emphasized, was expressly
limited to “the time [Mackinson] was in the
department.” [Doc. #175-40, ¶ 5]. Immediately
thereafter, paragraph 6 states “[e]very officer
also received monthly legal bulletins . . . .”
[Doc. #175-40, ¶ 6 (emphasis added)]. When read in
context, the court concludes that paragraph 6 is limited to
the time in which Mackinson was in the Tulsa Police
Department and reflects matters of which Mackinson would have
personal knowledge based on his own observations and
experiences during his employment.
also moves to strike paragraphs 8 and 9-again on the basis of
hearsay, untruthfulness, and lack of personal knowledge. The
court will first consider paragraph 8, which states: “I
was assigned to the Detective Division in August of 1988. All
officers new to the Detective Unit were required to
immediately complete an additional forty (40) hours of
training in Interrogations, Arrest Warrants, Search Warrants,
and Affidavits.” [Doc. #175-40, ¶ 8]. Again,
paragraph 8 does not include a specific out-of-court
statement that is impermissible hearsay, and the court will
not consider paragraph 8's veracity. With regard to
personal knowledge, the date of Mackinson's assignment to
the detective division is clearly information of which
Mackinson would have personal knowledge. Further, the court
is persuaded that the nature and scope of the training
requirements for new detectives at that time were matters
within Mackinson's observation.
9 relates to the homicide unit, rather than the detective
unit, and avers: “Officers assigned to the Homicide
Unit underwent the same additional forty (40) hours of
training in Interrogations, Arrest Warrants, Search Warrants
and Affidavits.” [Doc. #175-40, ¶ 9]. The court
again concludes that, when read in the broader context of the
affidavit, paragraph 9 reflects matters of which Mackinson
would have personal knowledge. In paragraph 10, Mackinson
states that, in February of 1989, he was assigned to the
homicide unit. [Doc. #175-40, ¶ 10]. Accordingly, the
court concludes that the nature and scope of training
requirements for new assignees to the homicide unit
constitute matters within Mackinson's personal knowledge.
reasons discussed above, the court denies Murphy's motion
to strike Mackinson's affidavit [Doc. #175-40].
City Exhibit 44, Affidavit of Dennis Larsen [Doc. #
moves to strike paragraph 11 of the affidavit of Dennis
Larsen, deputy chief for the Tulsa Police Department, as
hearsay, without proper foundation, and not based on personal
knowledge. Paragraph 11 of Larsen's affidavit avers:
“The Tulsa Police Department currently provides and in
1994 provided its officers with training including but not
limited to ...