United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge
matter is before the Court upon Defendant Thomas Nugent's
Motions to Strike [DE 15; 16]. Nugent wishes to strike two
pieces of evidence from the record that Plaintiff United
States attached to its Motion for Summary Judgment: (1) the
declaration of Internal Revenue Service (“IRS”)
Officer Glenda Granville and (2) IRS account transcripts.
[Id.]. Plaintiff has responded to Defendant's
motion. [DE 21');">21]. It is now fully briefed and ripe for the
Court's review. For the reasons stated herein, IT
IS ORDERED that Nugent's Motions to Strike are
DENIED. However, this Court
ORDERS that discovery for the sole purpose
of Defendant taking the deposition of Revenue Officer Glenda
Granville be open for 30 days.
FACTUAL AND PROCEDURAL BACKGROUND
2006 and 2008, delegates of the Secretary of the Treasury
made assessments of more than $230, 000 against Thomas Nugent
for unpaid federal income taxes for tax years 2003 through
2007. [DE 1, p. 2, ¶5]. When combined with interest and
penalties, the total amount the Government seeks to recover
is $496, 499. [DE 1, p. 2, ¶8]. The United States filed
this action on October 5, 2016 to reduce Nugent's federal
tax assessments to judgment. [DE 1]. In his answer, Nugent
denied he owes the amount sought by the Government, although
he admits he has some tax liability. [DE 5, p. 1, ¶6].
Nugent filed his answer, this Court held a hearing and set a
truncated discovery period. [DE 7; 8]. In April, the parties
filed a Joint Motion for Extension of Time to Complete
Discovery for the purpose of taking the depositions of Nugent
and accountant Williams P. Farmer, Jr. [DE 9]. The Court
granted the motion. [DE 10]. The parties did not exchange
initial disclosures. [DE 21');">21, p. 5, n. 3]. The Government
supplied Nugent with copies of the account transcripts during
discovery. [Id., p. 5]. Nugent used the transcripts
in his Motion for Judgment on the Pleadings. [DE 12-4; 12-5].
The Government also informed Nugent that a witness would
testify to explain the account transcripts. [DE 21');">21, p. 5].
Nothing in the Record indicates Nugent ever asked for the
witness's name or information.
later, and after the United States moved for summary
judgment, Nugent filed his Motion to Strike the declaration
of that witness testifying about the transcripts-Revenue
Officer Glenda Granville. [DE 15]. Nugent has also filed a
motion to strike the transcripts themselves. [DE 16].
Specifically, Nugent asks this court to strike the
transcripts because they are not authenticated under
Fed.R.Evid. 902(1). [Id.]. He asks this Court to
strike the Granville declaration on two theories: (1) under
56(d) because he did not have an opportunity to depose
Granville since the Government failed to turn over her
information during discovery; and (2) under 56(c)(4) because
Granville's statements are not based on personal
knowledge. [DE 15]. The Court now considers both motions, and
each argument raised therein, in turn.
Standard of Review
Motion to Strike Account Transcripts
party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.” Fed.R.Civ.p. 56(c)(2).
Evidence that is not authenticated is not admissible.
Fed.R.Evid. 901. “To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce sufficient evidence to support a
finding that the item is what the proponent claims it
is.” Fed.R.Evid. 901(a).
standard under Rule 56(c)(2) “is not that the material
‘has not' been submitted in admissible form, but
that it ‘cannot' be.” Farnhurst, LLC v.
City of Macedonia, No. 5:13-cv-668, 2016 WL 524361, at
*2 (N.D. Ohio Feb. 10, 2016) (citing Foreward Magazine,
Inc. v. OverDrive Inc., No. 1:10-cv-1144, 2011 WL
5169384 at *2 (W.D. Mich. Oct. 31, 2011)). “The
objection functions much as an objection at trial, adjusted
for the pretrial setting. The burden is on the proponent to
show that the material is admissible as presented or to
explain the admissible form that is anticipated. There is no
need to make a separate motion to strike.” Id.
(quoting Fed.R.Civ.p. 56 (2010 Advisory Committee comments)).
Motion to Strike Granville Declaration
affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would
be admissible evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” Fed.R.Civ.p. 56(c)(4). Evidence not based on
personal knowledge “may be disregarded on Summary
Judgment.” Lloyd v. Midland Funding, LLC, 639
Fed App'x 301, 304 (6th. Cir. 2016). This rule
“limits the matter to be properly included in an
affidavit to facts, and the facts introduced must be alleged
on personal knowledge.” Ondo v. ...