Summary
finding that a district court properly declined to consider, at the summary judgment stage, "counter-affidavit, the relevant portions of which were based entirely on information and belief"
Summary of this case from Winn-Dixie Stores, Inc. v. E. Mushroom Mktg. Coop.Opinion
No. 15670.
Submitted March 11, 1966.
Decided July 11, 1966.
George Scott Stewart, III, Philadelphia, Pa. (Charles W. Gross, Philadelphia, Pa., on the brief), for appellant.
Charles K. Keil, Wilmington, Del. (Howard M. Handelman, Bayard, Brill, Russell Handelman, Wilmington, Del., on the brief), for appellee.
Before SMITH and FREEDMAN, Circuit Judges, and MILLER, District Judge.
OPINION OF THE COURT
This action for breach of contract came before the court below on successive motions filed by the appellee under Fed.Rules Civ.Proc., rule 56, 28 U.S.C.A. After the entry of a partial judgment on the issue of liability the court entered a final judgment in favor of the appellee on the issue of damages. On this appeal the appellant contests only the latter judgment.
The appellee's second motion was predicated on the appellant's answers to interrogatories. These answers furnished an adequate basis for the assessment of damages. The appellant filed a counter-affidavit, the relevant portions of which were based entirely on information and belief and not on personal knowledge. Since the counter-affidavit did not meet the requirements of subdivision (e) of the said rule, as amended, the court properly disregarded it and entered judgment for the appellee. Durovic v. Palmer, 342 F.2d 634 (7th Cir. 1965); F.S. Bowen Electric Co. v. J.D. Hedin Construction Co., 114 U.S.App.D.C. 361, 316 F.2d 362 (1963); Hoston v. J.R. Watkins Company, 300 F.2d 869 (9th Cir. 1962).
The judgment of the court below, D.C., 41 F.R.D. 48, will be affirmed.