Mcdonald v. Experian Llc et al

Brief/Memorandum in Support

N.D. Tex.August 1, 2016

DEFENDANTS EXPERIAN INFORMATION SOLUTION, INC. AND TRANS UNION LLC’S BRIEF IN SUPPORT OF OBJECTIONS AND MOTION TO STRIKE STATEMENTS AND EVIDENCE CONTAINED IN PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT 1 8119541.2/SP/83057/2016/080116 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION MICHAEL L. MCDONALD, Plaintiff, v. EQUIFAX, INC., EXPERIAN, L.L.C. and TRANSUNION, L.L.C., Defendants. Civil Action No. 3:15-cv-03212-B DEFENDANTS EXPERIAN INFORMATION SOLUTION, INC. AND TRANS UNION LLC’S BRIEF IN SUPPORT OF OBJECTIONS AND MOTION TO STRIKE STATEMENTS AND EVIDENCE CONTAINED IN PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE BOYLE: COME NOW Defendants Experian Information Solutions, Inc. (“Experian”) and Trans Union LLC (“Trans Union”) (collectively referred to as “Defendants”), and file this Brief in Support of Defendants’ Objections and Motion to Strike Statements and Evidence Contained in Plaintiff’s Response to Defendants’ Motion for Summary Judgment (“Response”), respectfully showing onto the Court as follows. I. INTRODUCTION Plaintiff’s Response is riddled with unsupported and conclusory allegations, and fails to respond to any of the grounds upon which Defendants seek summary judgment. In support of his Response to Defendants’ Motion for Summary Judgment (Dkt. 34), Plaintiff Pro Se, Michael L. McDonald, filed several objectionable documents1. Defendants object to the summary judgment evidence submitted by Plaintiff and the statements contained in Plaintiff’s Responses 1 See third party documents contained in Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Dkt. 34 Case 3:15-cv-03212-B Document 36 Filed 08/01/16 Page 1 of 6 PageID 978 DEFENDANTS EXPERIAN INFORMATION SOLUTION, INC. AND TRANS UNION LLC’S BRIEF IN SUPPORT OF OBJECTIONS AND MOTION TO STRIKE STATEMENTS AND EVIDENCE CONTAINED IN PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT 2 8119541.2/SP/83057/2016/080116 on several grounds. Defendants make the objections set forth below and move the Court to strike the objectionable documents from the record. II. ARGUMENT AND AUTHORITIES 1. Declarations used to oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible as evidence and show that the declarant is competent to testify on the stated matters. See Fed. R. Civ. P. 56(c)(4). “More is required from [a declarant] than mere hearsay and legal conclusion.” Doff v. Brunswick Corp., 372 F.2d 801, 804 (9th Cir. 1966) (citation omitted). Under Federal Rule of Evidence 602, a witness must have personal knowledge. In other words, the witness must have actually perceived or observed that which she testifies to. Latman v. Burdette, 366 F.3d 774, 787 (9th Cir. 2004). 2. Additionally, to be admissible for summary judgment purposes, documents are required to be authenticated by declarations of persons with personal knowledge through whom they could be introduced at trial, and are inadmissible without proper foundation. See Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir. 1982) (citations omitted). 3. Overall, for the court to consider summary judgment evidence, the evidence must be of the type to be admissible at the time of trial. Neff v. World Publishing Co., 349 F.2d 235, 253 (8th Cir.1965) (“In determining whether summary judgment is proper, statements contained in affidavits which would be inadmissible in evidence (such as statements of opinion, belief and hearsay) must be disregarded.”); Lark v. West, 182 F. Supp. 794, 798 (D.D.C.1960) (“Belief, no matter how sincere, is not equivalent to knowledge, and facts set forth in an affidavit in opposition to a motion for summary judgment must be such as would be admissible in evidence should they be given from the witness stand during the trial of a case.”); Miller v. Solem, 728 Case 3:15-cv-03212-B Document 36 Filed 08/01/16 Page 2 of 6 PageID 979 DEFENDANTS EXPERIAN INFORMATION SOLUTION, INC. AND TRANS UNION LLC’S BRIEF IN SUPPORT OF OBJECTIONS AND MOTION TO STRIKE STATEMENTS AND EVIDENCE CONTAINED IN PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT 3 8119541.2/SP/83057/2016/080116 F.2d 1020, 1021 (8th Cir.1984) (“To the extent that affidavits on summary judgment set forth hearsay statements, there was failure to comply with requirement of the rule that facts set forth in affidavits must be admissible in evidence.”). III. OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE 1. First, Defendants object to any statement in Plaintiff’s Response as being accepted as fact, evidence or declaration because they are not sworn and inadmissible. See Fed. R. Evid. 602 & 901; see also Dkt. 34. 2. In addition to not being sworn, Defendants object to the statements contained in Plaintiff’s Response as inadmissible because they are conclusory statements unsupported by facts. Plaintiff generally seeks to add veracity to the conclusory allegations in his Response to Defendants’ Motion for Summary Judgment. Plaintiff has simply replaced certain conclusory allegations in his Complaint with conclusory allegations in his Response, and Plaintiff’s statements are properly excluded on this basis. See Robinson v. Union Carbide Corp., 805 F.Supp. 514 (E.D.Tenn.1991) (Opponent of motion for summary judgment cannot survive it merely by restating his or her conclusory allegations in affidavit form or by presuming existence of material facts). See Dkt. 34, p. 2-4, & 7-9. 3. Defendants also object to the statements contained in Plaintiff’s Response on the grounds that they constitute hearsay and are unauthenticated, and lack foundation. See Fed. R. Evid. 602, 801, 802 & 901; see also Dkt. 2-4, & 7-9. 4. Moreover, Defendants object to the third party documents, included in Plaintiff’s Response, on the grounds that they were never produced to Defendants Experian or Trans Union during discovery and are properly excluded on this basis. See Fed. R. Civ. P. 37(c)(1). Discovery is now closed. See Dkt. 13. Plaintiff failed to produce these documents during Case 3:15-cv-03212-B Document 36 Filed 08/01/16 Page 3 of 6 PageID 980 DEFENDANTS EXPERIAN INFORMATION SOLUTION, INC. AND TRANS UNION LLC’S BRIEF IN SUPPORT OF OBJECTIONS AND MOTION TO STRIKE STATEMENTS AND EVIDENCE CONTAINED IN PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT 4 8119541.2/SP/83057/2016/080116 discovery so are inadmissible and improper summary judgment evidence. See Dkt. 27, pp. 9-10; see also Dkt. 34, pp. 5-6. 5. Defendants further object to the documents contained in Plaintiff’s Response, on the grounds that they constitutes hearsay, are unauthenticated and irrelevant. Fed. R. Evid. 401, 802 & 901. The documents contained in Plaintiff’s Response have not been authenticated. No records declarations on behalf of any of the entities purportedly associated with these documents have been produced in this litigation to authenticate any of these documents. Further, in addition to not being authenticated, these documents constitute hearsay, and are not even relevant to Defendants Experian and Trans Union. These documents do not refer to or mention Defendants Experian and Trans Union. Accordingly, since these documents would not be admissible for the foregoing reasons, they are not properly before the Court and should not be considered by the Court in ruling on Defendants’ Motion for Summary Judgment. See Dkt. 34, pp. 5-6. 6. Finally, Defendants object Plaintiff’s Documents which are not sworn nor certified, and for which a proper predicate for their admissibility has not been established. See Fed. R. Evid. 803, 901. Accordingly, because these documents are not admissible for the foregoing reasons, they are not properly before the Court and should not be considered in ruling on Defendants’ Motion for Summary Judgment. See Dkt. 34, pp. 5-6. 7. Based on the foregoing objections, Defendants move to strike the third party documents contained in Plaintiff’s Response. See Dkt. 34, pp. 5-6. Further, to the extent Plaintiff holds the objectionable statements out as fact, evidence, testimony or declarations, Defendants move to strike them from being considered as summary judgment evidence in support of Plaintiff’s Response. Case 3:15-cv-03212-B Document 36 Filed 08/01/16 Page 4 of 6 PageID 981 DEFENDANTS EXPERIAN INFORMATION SOLUTION, INC. AND TRANS UNION LLC’S BRIEF IN SUPPORT OF OBJECTIONS AND MOTION TO STRIKE STATEMENTS AND EVIDENCE CONTAINED IN PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT 5 8119541.2/SP/83057/2016/080116 IV. CONCLUSION For the foregoing reasons, Defendants move the Court to strike the foregoing documents and statements as inadmissible and not proper summary judgment evidence in their entirety, or, in the alternative, to sustain Defendants’ objections. Dated: August 1, 2016 Respectfully submitted, s/ Amanda Loughmiller Amanda Loughmiller Texas Bar No. 24028042 STRASBURGER & PRICE, LLP 2600 Dallas Parkway, Suite 600 Frisco, TX 75034 Telephone: (469) 287-3986 Facsimile: (469) 227-6593 amanda.loughmiller@strasburger.com Counsel for Defendant Trans Union LLC Respectfully submitted, s/ David Alexander Silva David Alexander Silva Texas Bar No. 24083855 JONES DAY 2727 North Harwood Street Dallas, Texas 75201 Telephone: (214) 969-5219 Facsimile: (214) 969-5100 dsilva@jonesday.com smcclung@jonesday.com Counsel for Experian Information Solutions, Inc. Case 3:15-cv-03212-B Document 36 Filed 08/01/16 Page 5 of 6 PageID 982 DEFENDANTS EXPERIAN INFORMATION SOLUTION, INC. AND TRANS UNION LLC’S BRIEF IN SUPPORT OF OBJECTIONS AND MOTION TO STRIKE STATEMENTS AND EVIDENCE CONTAINED IN PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT 6 8119541.2/SP/83057/2016/080116 CERTIFICATE OF SERVICE This is to certify that on August 1, 2016, a true and correct copy of the above and foregoing document has been electronically filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following counsel: Kendall W. Carter King & Spalding, LLP 1180 Peachtree Street Atlanta, GA 30309 Telephone: (404) 572-2495 Facsimile: (404) 572-5100 kcarter@kslaw.com Counsel for Equifax, Inc. David Alexander Silva Sidney Smith McClung Jones Day 2727 North Harwood Street Dallas, Texas 75201 Telephone: (214) 969-5219 Facsimile: (214) 969-5100 dsilva@jonesday.com smcclung@jonesday.com Counsel for Experian Information Solutions, Inc. and I hereby certify that that a true and correct copy of the above and foregoing document has been forwarded by electronic mail on August 1, 2016, and by U.S. Mail, first class, postage prepaid, on August 2, 2016 to the following non-CM/ECF participants: Michael L. McDonald 507 Bost Street Rockwall, TX 75087 Telephone: (469) 338-1987 Lastdayharvestministries13@gmail.com Plaintiff Pro Se s/ Amanda Loughmiller Amanda Loughmiller Case 3:15-cv-03212-B Document 36 Filed 08/01/16 Page 6 of 6 PageID 983