Stevenson v. Delta Airlines, Inc.

REPLY MEMORANDUM in Support

E.D. La.January 24, 2019

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JALEANA STEVENSON, ) CASE NO. 17-6003 Plaintiff ) SECTION: “R” (1) ) v. ) DISTRICT JUDGE SARAH S. VANCE ) DELTA AIRLINES, INC., ) MAGISTRATE JUDGE Defendant ) JANIS VAN MEERVELD DEFENDANT DELTA AIR LINES’ REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO STRIKE Defendant Delta Air Lines, Inc. (“Delta” or “Defendant”), files this Reply Memorandum to Plaintiff’s untimely Opposition to Defendant’s Motion to Strike (“Opposition”), stating as follows: OVERVIEW On January 2, 2019, Delta filed a Motion to Strike (Rec. Doc. 65), seeking to strike certain evidence submitted by Plaintiff in support of her Motion for New Trial and Motion for Reconsideration (Rec. Doc. 62). The submission date for Delta’s Motion was set for January 23, 2019 (Rec. Doc. 65-2). On January 16, 2019, Plaintiff filed a Memorandum in Opposition to Delta’s Motion to Strike (Rec. Doc. 68). Plaintiff’s Opposition, apart from being untimely, fails to demonstrate that Delta’s Motion Strike should be denied. Delta, therefore, files this Reply to address Plaintiff’s deficiencies as they relate to her untimely filed Opposition to Delta’s Motion to Strike. LAW AND ARGUMENT I. Plaintiff’s Opposition is Untimely and, thus, Should Not Be Considered. Based on the January 23, 2019 submission date for Delta’s Motion to Strike, Plaintiff’s Opposition was due to be filed on January 15, 2019. Plaintiff’s Opposition filed on January 16 is Case 2:17-cv-06003-JVM Document 72 Filed 01/24/19 Page 1 of 6 2 therefore untimely. Where a party files an untimely opposition and, in so doing, additionally fails to file “a procedurally proper motion for leave to file her untimely opposition” or when she waits to do so until after the passage of the submission date set for the relevant motion, Judges of this Court have not considered such a filing and, instead, have held that the opposing party’s motion is effectively unopposed. See, e.g., Homelife in the Gardens, LLC v. Landry, No. CV 16-15549, 2018 WL 341703, at *1, n. 2 (E.D. La. Jan. 9, 2018) (Judge Africk); Kerry v. Takeda Pharm. N. Am., Inc., No. CIV.A. 11-2325, 2012 WL 117116, at *2 (E.D. La. Jan. 13, 2012) (Magistrate Judge Roby) (holding that where the plaintiff’s opposition was untimely filed – not filed at least eight days prior to the noticed submission date for the motion – and the plaintiff, after the passing of this deadline, neither sought an extension of time nor leave of court to file the opposition, nor did the plaintiff put forth any reason to excuse the untimely filing, the “[p]laintiff’s opposition will not be considered by the Court”). As of the date of Delta’s filing of this Reply, Plaintiff has not filed a motion for leave seeking permission from this Court to file her untimely Opposition to Delta’s Motion to Strike, nor has Plaintiff put forth any reason or rationale for the untimely filing of her opposition. Plaintiff’s Opposition should therefore not be considered, and Delta’s motion should be deemed unopposed. See Homelife in the Gardens, LLC, 2018 WL 341703, at *1, n. 2; Kerry, 2012 WL 117116, at *2. II. Even Assuming Plaintiff’s Opposition Was Filed Timely, Her Opposition Fails to Show Any Reason Why this Court Should Deny Delta’s Motion. A. The Opposition Fails to Demonstrate How Plaintiff’s Affidavit Constitutes Admissible Evidence. Citing to Rule 56 and 28 U.S.C. § 1746, Plaintiff erroneously argues that her “affidavit” meets the requirements of a declaration under penalty of perjury. However, 28 U.S.C. § 1746 makes clear that a declaration under penalty of perjury must be signed and dated by the declarant. Case 2:17-cv-06003-JVM Document 72 Filed 01/24/19 Page 2 of 6 3 Plaintiff’s submitted “affidavit” is not dated (Rec. Doc. 62-3). Further, Plaintiff’s affidavit contains inadmissible hearsay in the form of alleged oral statements by the EEOC. As such, Plaintiff’s affidavit fails to meet the requirements of 28 U.S.C. § 1746. Plaintiff’s affidavit also fails to satisfy Rule 56. Under that Rule, a supporting or opposing declaration must (1) be made on personal knowledge, (2) set out facts that would be admissible in evidence, and (3) affirmatively show that the declarant is competent to testify on the matter stated. Fed. R. Civ. P. 56(c); Ballard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012); see also Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 324 (5th Cir. 1998). Therefore, declarations asserting personal knowledge must include enough factual support to show that the declarant sufficiently possesses the relevant personal knowledge sufficient under Rule 56. Amie v. El Paso Ind. Sch. Dist., 253 Fed. App’x. 447, 451 (5th Cir. 2007); see also McGehee v. State Farm Gen. Ins. Co., No. 08-3851, 2010 U.S. Dist. LEXIS 40668, *5 (E. D. La. April 26, 2010) (“Assertions in [declarations] that do not include sufficient factual support to show that the [declarant] possesses that knowledge may be stricken.”). This rule is unequivocal and cannot be circumvented. See Hall v. C.I.A., 538 F. Supp. 2d 64, 68 (D.D.C. 2008). Here, Plaintiff does not argue the applicability of any hearsay exception. Therefore, Plaintiff’s blanket, conclusory argument that her affidavit meets the necessary requirements fails to acknowledge, much less address, that pursuant to Rule 56 the contents of a declaration must be concrete and particular and otherwise constitute competent admissible evidence. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995); Quest Exploration and Development Co. v. Transco Energy Co., 24 F.3d 738, 742 (5th Cir. 1994) (affirming summary judgment because nonmovant advanced unsupported affidavit evidence and stating that “unsubstantiated assertions are simply not competent summary judgment evidence”). Case 2:17-cv-06003-JVM Document 72 Filed 01/24/19 Page 3 of 6 4 Accordingly, Plaintiff’s Opposition fails to show how the Affidavit of Jaleana Stevenson meets the requirements of Rule 56 or 28 U.S.C. § 1746. See Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980) (holding affidavit that did not set forth facts admissible in evidence was entitled to no weight when deciding summary judgment). B. No Sufficient Reason Exists to Allow Any of Plaintiff’s Evidence to Remain a Part of the Record. In her Opposition, Plaintiff fails to address Delta’s primary point in its Motion to Strike: Plaintiff is not, as a matter of law, permitted to advance new legal arguments, theories or submit or rehash evidence that could have been presented or raised earlier in the proceedings before the entry of judgment. See Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th Cir. 2010); Templet v. HydroChem Inc., 367 F.3d 473, 478–79 (5th Cir. 2004); Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990); Karim v. Finch Shipping Co., 111 F. Supp. 2d 783, 784 (E.D. La. 2000); Campbell v. St. Tammany Parish School Board, No. 98–2605, 1999 WL 777720, at *1 (E.D. La. Sept. 29, 1999); Stephens v. Witco Corp., 1998 WL 426214, at *1 (E.D. La. July 24, 1998). Therefore, “an unexcused failure to present evidence available at the time of summary judgment provides a valid basis for denying a subsequent motion for consideration.” Templet, 367 F.3d at 479 (citing Russ v. Int'l Paper Co., 943 F.2d 589, 593 (5th Cir. 1991)). Moreover, Plaintiff fails to address the following additional grounds for striking her submitted evidence:  The affidavits of Jaleana Stevenson and Charlene Sukari Hardnett should be disregarded and stricken because they contain inadmissible hearsay – namely inadmissible oral statements purportedly made by the EEOC;  The affidavits of Jaleana Stevenson and Charlene Sukari Hardnett, the letter to President Obama, and the December 2013 referenced intake Case 2:17-cv-06003-JVM Document 72 Filed 01/24/19 Page 4 of 6 5 questionnaire were not part of the summary judgment record and will prejudice Delta if they are not stricken and, instead, remain a part of the record; and  The letter to President Obama and the intake questionnaire should be disregarded and stricken from the record because they contain inadmissible hearsay and have not been properly authenticated. Because Plaintiff has failed to address Delta’s primary grounds for moving to strike Plaintiff’s submitted evidence, and because Plaintiff’s submission contains inadmissible evidence, this Court should disregard Plaintiff’s submitted evidence and strike it from the record. CONCLUSION For the reasons stated in Defendant’s Motion to Strike, and the foregoing Reply, Defendant respectfully requests that this Honorable Court grant Defendant’s Motion to Strike. /s/ Mark N. Mallery Mark N. Mallery, La. Bar No. 17666 Atoyia S. Harris, La. Bar No. 36012 Javier Jalice, La. Bar No. 35181 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: (504) 648-3840 Facsimile: (504) 648-3859 Email: mark.mallery@ogletreedeakins.com atoyia.harris@ogletreedeakins.com javier.jalice@ogletreedeakins.com ATTORNEYS FOR DELTA AIR LINES, INC. Case 2:17-cv-06003-JVM Document 72 Filed 01/24/19 Page 5 of 6 6 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant’s Reply Memorandum in Support of its Motion to Strike has been filed via the Court’s Electronic Case Filing System, which provides for service on all counsel and parties of record. This 23rd day of January, 2019. /s/ Mark N. Mallery JAVIER JALICE Case 2:17-cv-06003-JVM Document 72 Filed 01/24/19 Page 6 of 6