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United States v. Nugent

United States District Court, E.D. Kentucky, Central Division, Lexington

September 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS NUGENT, Defendant.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood, Senior U.S. District Judge

         I. INTRODUCTION

         This 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.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Between 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].

         After 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.

         Months 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.

         III. ANALYSIS

         A. Standard of Review

         (i) Motion to Strike Account Transcripts

         “A 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).

         The 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)).

         (ii) Motion to Strike Granville Declaration

         “An 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. ...


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