Commercial Litigation and Arbitration

Mere Failure to Recite That a Declaration or Affidavit Is Based on Personal Knowledge Doesn’t Render Contents Hearsay If It Is Clear from the Circumstances (Contents, Other Evidence) That It Was

Venezia v. E. Revenue, Inc., 2019 U.S. Dist. LEXIS 21501 (E.D. Pa. Feb. 11, 2019):

: Footnote 2: Plaintiff filed an Objection to Defendant's Submissions    [ECF No. 33 & 34] urging this Court to disregard Mr. Griffin's Declaration because it was "new evidence" presented improperly in Defendant's Reply. ECF No. 35. As the cases cited by Plaintiff state, "a District Court should not consider new evidence raised in the reply to a motion for summary judgment without giving the nonmoving party an opportunity to respond." Alston v. Forsyth, 379 F. App'x 126, 129 (3d Cir. 2010) (citing Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)). This Court, in following this very instruction of the Third Circuit, gave Plaintiff ample opportunity to respond to the "new evidence" by granting Plaintiff's Motion for Leave to File a Surreply Brief in Response to Defendant's Reply Papers Supporting Defendant's Motion for Summary Judgment, ECF No. 31. See ECF No. 36. Plaintiff also had the opportunity to address this "new evidence" during Oral Argument held before the Court on January 9, 2019, nearly a month after the "new evidence" was introduced by Defendant. ECF No. 41. Accordingly, the Court appropriately considered Mr. Griffin's declaration in its analysis of this motion.

Plaintiffs also objected to the consideration of Mr. Griffin's declaration under Federal Rule of Civil Procedure 56(c)(2) because Mr. Griffin did not specifically state that his declaration was made with "personal knowledge" and consisted of inadmissible hearsay. First, "while an affidavit certainly can explicitly state that it is based on 'personal knowledge,' there is no requirement for a set of magic words" in order to be considered on summary judgment. DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005) (citations omitted). Mr. Griffin declared, under penalty of perjury, that he was "authorized to make this Declaration on behalf of FocusOne" and that he is the "Data Systems Representative of FocusOne." Further, it is clear from the plain language of the declaration that Mr. Griffin's representations are based on his knowledge of FocusOne's data systems and the records they reflect. If that alone was insufficient to deem it appropriate to consider Mr. Griffin's declaration, Defendant has also filed with this Court the declaration of James Olson, the Vice President of Hatteras, Inc., of which FocusOne is a division, who declared under penalty of perjury that the records Mr. Griffin relied upon in his declaration were created in the normal course of FocusOne's business. ECF No. 34-2. Thus, the Court disagrees with Plaintiff and finds that it is appropriate to consider Mr. Griffin's declaration because Mr. Griffin's declaration was made with personal knowledge and did not contain inadmissible hearsay.

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