United States District Court, D. Colorado
BRADLEY D. OASTER, Plaintiff,
STANLEY ROBERTSON, Defendant.
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Defendant's Motion to Strike Affidavit Testimony [#38] (the "Motion"). Plaintiff filed a Response [#39] to the Motion. Defendant did not file a reply in further support of the Motion and his time to do so has elapsed. D.C.COLO.LcivR 7.1(d). The Court has reviewed the Motion, the Response, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#38] is GRANTED in part and DENIED in part.
Defendant's Motion to Dismiss Pursuant to 12(b)(1), 12(b)(2) and 12(b)(6) and[, ] if Necessary, Request for Evidentiary Hearing [#18] (the "Motion to Dismiss") is pending before the Court. The Court converted the Motion to Dismiss into a Rule 56 motion [#30] and allowed the parties "an opportunity to submit supplemental briefs of not more than 10 pages each, excluding exhibits...." Minute Order [#30] at 2. Each party submitted additional briefing [##32, 37]. In addition, Plaintiff submitted an extensive appendix of documents [##33, 34, 37-1, 37-2, 37-3, 37-4, 37-5]. One of the additional documents submitted by Plaintiff is the Supplemental Affidavit of Bradley D. Oaster [#37-2] (the "Oaster Affidavit").
In the Motion, Defendant argues that the Oaster Affidavit "contains inadmissible hearsay and conclusory and self-serving statements in an attempt to offer evidence in opposition to the" Motion to Dismiss. Motion [#38] at 1. As a result, Defendant asks the Court to strike portions of the Oaster Affidavit. See generally id.
In his Response, Plaintiff argues that the Oaster Affidavit "tells the story from Mr. Oaster's perspective of how he discovered information[ ] posted on Defendant's Facebook site and website, leading him to suspect he had claims against Defendant." Response [#39] at 1. Plaintiff maintains that the challenged statements are "a party-opponent admission and not hearsay." Id. at 2. With regard to paragraph 14 of the Oaster Affidavit, Plaintiff states that "[t]he evidence is not submitted to prove its truth but submitted to show the circumstances leading Oaster to be concerned and file claims." Id. at 2-3.
"Although affidavits are entirely proper on summary judgment, the content or substance of the evidence contained therein must be admissible." Hansen v. PT Bank Negara Indonesia (Persero), 706 F.3d 1244, 1249 (10th Cir. 2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 327 (1986)); Thomas v. Int'l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995)); see also Fed.R.Civ.P. 56(c)(4) ("[The affidavit] 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."). Further, "conclusory and self-serving affidavits are not sufficient." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). "Under the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to.'" Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (quoting United States v. Sinclair, 109 F.3d 1527, 1536 (10th Cir. 1997)). "When an otherwise inadmissible hearsay statement is made by a party-opponent, however, it may be admitted under Rule 801(d)(2)." Hansen, 706 F.3d at 1249. "In order to qualify as an admission by a party-opponent, Plaintiff[ ] must establish that it was made by the party or that the party adopted or authorized it." Id. (citing Fed.R.Evid. 801(d)(2)).
Defendant asks the Court to strike statements contained in four paragraphs of the Oaster Affidavit as inadmissible hearsay. The Court addresses each in turn.
A. Paragraphs 9 and 10
Paragraph 9 states that Plaintiff reviewed a Facebook page maintained by Halo Architects and that the "posts included such lies as Halo was asked by SWCC to help them plan and facilitate growth of the campus in Indian Wells, Ca.'" Oaster Aff. [#37-2] ¶ 9. Plaintiff's Response fails to mention paragraph 9 of the Oaster Affidavit. See generally Response [#39]. However, to the extent Plaintiff attempts to argue that any of the challenged statements constitute an exception to hearsay because they are admissions by Defendant, id. at 2 (making this argument as to statements contained in paragraph 11 of his affidavit), as noted above, Plaintiff has the burden of establishing that the challenged statement was made or authorized by the party-opponent. Hansen, 706 F.3d at 1249 (Fed. R. Evid. 801(d)(2)). Plaintiff offers no such argument that Defendant Stanley Robertson, the party opponent in this case, authorized or made the statement on Halo Architects' Facebook page that is included in paragraph 9 of the Oaster Affidavit. Further, the Oaster Affidavit states that Defendant "began referring to his business as... Halo Architects, " that "other people were working for or with" Defendant and that Plaintiff "was not in any way made aware of the internal structure" of Halo Architects. Oaster Aff. [#37-2] ¶ 6. These statements undercut any assumption that Defendant made or authorized the Facebook post. Accordingly, the Court finds that the following statement in paragraph 9 of the Oaster Affidavit is hearsay and must be stricken: "These posts included such lies as Halo was asked by SWCC to help them plan and facilitate growth of the campus in Indian Wells, Ca.'" Id. ¶ 9.
Defendant moves to strike all but the first and last sentences of paragraph 10 of the Oaster Affidavit. Paragraph 10 reads:
I continued to investigate into November 2014. I also discovered references to other Harvestime clients including Harvest Family Church in Fayetteville, North Carolina, and Triumph Church in Detroit. I recalled I had asked Stan about Harvest Family church before we parted ways [ ]. At the time I received no explanation. Seeing my jobs on Stan's website, I began to wonder if Stan has somehow interfered in the relationships between me and my client churches. So I continued my investigation. Among the pictures I saw posted was a photo posted on April 29, 2010 of Halo's sign on my project in Naples, Florida, Center Point Community Church. I had not seen this before. In the photo ...