In a recent opinion, Ondo v. City of Cleveland, the Sixth Circuit, in an opinion by Judge Alice Batchelder, upheld the trial court’s striking of plaintiffs’ affidavits and granting judgment as a matter of law for defendant.

Plaintiffs brought a lawsuit pursuant to 42 U.S.C. § 1983 alleging that defendant police officers violated their constitutional rights under the Fourth and Fourteenth amendments by, among other things, punching them, subjecting them to anti-homosexual slurs, refusing to let them put on pants before they were arrested and forcing them to go to jail in their underwear, and denying them clothes in jail. Plaintiffs also brought state law claims for intentional infliction of emotional distress.

In response to defendant’s motion for summary judgment, plaintiffs filed affidavits “based upon personal knowledge and belief” which provided additional factual details in support of their claims. The trial court struck the affidavits “explaining that the court did not know which statements were based solely on personal knowledge, as required by the Federal Rules of Civil Procedure, and which statements were based only upon belief.”

Quoting Fed. R. Civ. P. 56(c)(4), the Court of Appeals first noted that,

Affidavits defeat summary judgment only if No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 7 they are “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.”

The Sixth Circuit has previously held that where portions of affidavits are admissible and portions are inadmissible, the court must reject only the inadmissible portions. However, this could not save plaintiffs’ affidavits because the trial court could not determine which averments were based on plaintiffs’ knowledge (thus admissible) and which were based on plaintiffs’ belief (thus inadmissible).

We hold that when affidavits based on knowledge and belief are submitted to support or oppose a motion for summary judgment, the district court has discretion to determine whether it can differentiate between knowledge and belief for each averment in the affidavit. If the court can distinguish between the two, then, as was the case in [Upshaw v. Ford Motor Co., 576 F.3d 576, 593 (6th Cir. 2009)], the court should excuse the affiant’s stylistic error, and must admit the parts based solely upon personal knowledge, while striking the parts based upon belief. If the court cannot differentiate between the two, then consistent with the rationale in Wright & Miller, the court must strike the affidavit in its entirety, as in [Totman v. Louisville Jefferson County Metro Government, 391 F. App’x 454 (6th Cir. 2010)]. We review for abuse of discretion the district court’s decision on whether it could distinguish between knowledge and belief for each of the affidavit’s averments, and thus whether to strike in part or to strike in toto.

The district court here found that it could not make those determinations regarding the affidavits filed by Ondo and Simcox, and so struck both affidavits in their entirety. We conclude that the district court did not abuse its discretion in doing so.

It’s a clear lesson to be careful in drafting affidavits and insure that they are (and say they are) based on affiant’s knowledge, as required by the Federal Rules.

For information or questions regarding this post and appeals of Federal or State claims, readers can contact the author Charlotte Croson. Ms. Croson leads NachtLaw’s appellate practice in the Federal and State Courts.

*A tip of the hat to Joey Niskar for his eagle eye in pointing this out.