Commercial Litigation and Arbitration

Summary Judgment — Post-2010, Don’t Move to Strike Evidence But Object — Affidavit Needn’t State Competence, Knowledge — Presumption Officer Knows Corporate Acts — Customer Email Complaints Authenticated by Contents, Circumstances

OFI Int’l, Inc. v. Port Newark Refrigerated Warehouse, 2015 U.S. Dist. LEXIS 2926 (D.N.J. Jan. 12, 2015):

Plaintiffs OFI International, Inc. ("OFI") and Watermark Foods, Inc. ("Watermark") filed this action against Defendant Hudson Refrigeration Company d/b/a Port Newark Refrigerated Warehouse ("Defendant" or "PNRW"). Plaintiffs allege that PNRW mishandled numerous shipments of Plaintiffs' frozen seafood. Specifically, Plaintiffs seek damages for 958,297 pounds of frozen seafood products (the "Subject Goods"), which were allegedly subject to temperature abuse while in storage at PNRW's warehouse at 125 Tyler Street, Newark, New Jersey (the "PNRW Warehouse").

This matter comes before the Court on Defendant's motion and Plaintiffs' cross-motion for summary judgment under Federal Rule of Civil Procedure 56. Also before the Court is Defendant's motion to strike certain evidence from the summary judgment record. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below, the Court will treat Defendant's motion to strike as objections under Rule 56(c) and will partially SUSTAIN and partially OVERRULE those objections. Additionally, Defendant's motion for summary judgment is DENIED, and Plaintiffs' cross-motion for summary judgment is partially GRANTED and partially DENIED.


Defendant moves to strike the following evidence, which Plaintiffs submitted in opposition to Defendant's motion for summary judgment: (1) portions of the Declaration of Neel Reddy (the "Reddy Declaration"), (2) the Declaration of William Bennett, Esq. (the "Bennett Declaration"), (3) the Declaration of Charles McLaughlin (the "McLaughlin Declaration"), (4) the expert report of Patrick Brecht (the "Brecht Report"), and (5) the expert report of Pierce Powers (the "Powers Report," and together with the Brecht Report, the "Expert Reports"). Following the 2010 amendments to Rule 56, a motion to strike is no longer a proper means of attacking the admissibility of summary judgment evidence. See Ankney v. Wakefield, No. 10-1290, 2012 WL 1633803, at *1 (W.D. Pa. May 8, 2012). The Court will thus construe Plaintiff's motion to strike as objections under Rule 56(c). See id.

A. The Declarations

Rule 56(c) provides that "an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Defendant argues that the Reddy Declaration, the Bennett Declaration, and the McLaughlin Declaration fail to meet these requirements. The Court disagrees, [*3]  with one exception related to an inadmissible opinion in the McLaughlin Declaration.

i. Reddy Declaration

Neel Reddy is the President of OFI International and the Vice President of Watermark Foods. Reddy Decl. ¶ 1, ECF No. 70-2. Defendant objects to paragraphs 2, 3, 5, 6, 7, 8, 9, 10, 11, and 12 of the Reddy Declaration. Defendant argues that those paragraphs are not based on personal knowledge, set forth inadmissible facts, and contain information outside of Reddy's competence. The Court will overrule Defendant's objections.

A declaration or affidavit need not explicitly state that the declarant or affiant is competent to testify or that his statements are made on personal knowledge. Rule 56(c)(4) requires not that an affiant state these things, but rather that the affidavit "be made on personal knowledge" and "show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, if a sworn affidavit clearly flows from personal knowledge of a competent affiant, a court may consider it on summary judgment. See, e.g., Keating v. Bucks County Water & Sewer Auth., 2000 WL 1888770 at *4 (E.D. Pa. 2000) (noting that, to extent averments in affidavit sworn to be "true and correct to the best of [affiant's] knowledge, information and belief" clearly were based [*4]  on personal knowledge, they were appropriately considered on summary judgment).

Furthermore, the Supreme Court has stated that a nonmoving party need not produce evidence in a form that would be admissible at trial to avoid summary judgment. Celotex v. Catrett, 477 U.S. 317, 324 (1986). Accordingly, the Third Circuit has concluded that ". . . hearsay evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present the evidence through direct testimony, i.e., in a form that 'would be admissible at trial.'" J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990) (quoting Williams v. Borough of West Chester, 891 F.2d 458, 465-66 n.12 (3d Cir. 1989)).


Defendant's objections to a portion of paragraph 21and paragraphs [*5]  5 through 122 are also unconvincing. Each paragraph complies with Rule 56(c)(4). First, as a corporate officer, Reddy is presumed to possess personal knowledge of the acts of the corporation.  See Catawba Indian Tribe v. State of South Carolina, 978 F.2d 1334, 1342 (4th Cir. 1992) (holding that a corporate officer ordinarily possess personal knowledge of acts of corporation and, in absence of proof of no personal knowledge, the personal knowledge element is satisfied). Further, as a Rule 30(b)(6) representative, Reddy may "testify about information known or reasonably available to the organization." Fed. R .Civ. P. 30(b)(6). The use of the word "we" in the declaration is thus permissible, because Reddy is testifying on Plaintiffs' behalf. Second, Reddy will be a declarant produced at trial to offer his statements in admissible form and subject to cross-examination. Third, the record lays the foundation for Reddy's declarations.***

ii. Bennett Declaration and the McLaughlin Declaration


As an initial matter, Defendant misreads the Bennett Affidavit. Bennett is not attesting to the facts contained within the attached documents; he's offering true and accurate copies of documents produced in discovery. Bennett has personal knowledge as to whether he has submitted true and accurate copies of documents produced in discovery. And Defendant ignores the reality that filing documents pursuant to attorney declaration is a well-established practice. See, e.g., Shell Trademark Mgmt. BV v. Ray Thomas Petroleum Co., Inc., 642 F. Supp. 2d 493, 511 (W.D.N.C. 2009). "Documents produced in response to discovery requests are admissible on a motion for summary judgment since they are self-authenticating and constitute the admissions of a party opponent." Anand v. BP W. Coast Prods. LLC, 484 F. Supp. 2d 1086, 1092 n.11 (C.D. Cal. 2007). Accordingly, courts have warned litigants like Defendant that "[i]t is disingenuous and wasteful" to object [*11]  to one's own documents based upon personal knowledge or authentication. Id. (quoting Comm. Data Servers, Inc. v. IBM, 262 F.Supp.2d 50, 60 (S.D.N.Y. 2003)).

Further, as to the documents that Plaintiffs themselves produced, the Court finds that there is sufficient circumstantial evidence to authenticate those documents. See United States v. Balice, 505 F. App'x 142, 146 (3d Cir. 2012) ("The burden of proof under Rule 901 is slight, requiring only a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be."); Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 928 (3d Cir. 1986) (noting that distinctive characteristics of the challenged documents - such as "company logos and other trademarks, the professional appearance of the various handbooks and manuals, and the specific nature of the contents" - are sufficient to overcome the slight authentication admissibility burden). Exhibit A includes customer complaints about the Subject Goods addressed to an OFI employee. See United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (authenticating emails based on the email addresses in the headers, explanations in the body of the emails, defendants' conduct after receiving the emails, and other circumstantial evidence). Exhibit B is a letter on Defendant's own letterhead addressed to OFI regarding the customer complaints. Exhibit D contains warehouse receipts with "Port Newark Refrigerated [*12]  Warehouse Company" printed along the top. And Exhibit G includes work orders and invoices for "Port Newark Refrigerated Warehouse," which contain a "Refrigeration Design & Service Inc." logo. Finally, as to Exhibit J, Plaintiffs provided the Court with an email from Bennett to Plaintiffs, dated April 19, 2013, describing it as a "transcript of a telephone conversation between Mr. Barrillaro [an employee of OFI] and Mrs. Blanc [an employee of Defendant]." The Court also notes that Defendant does not claim that the transcript is inaccurate. Finally, even if there were not sufficient circumstantial evidence to authenticate these documents, they can be authenticated through testimony at trial. Accordingly, the Court could still consider them in connection with Plaintiffs' opposition. See Celotex Corp., 477 U.S. at 324 (holding that a nonmoving party need not "produce evidence in a form that would be admissible at trial in order to avoid summary judgment").

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