Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
35Activity
0 of .
Results for:
No results containing your search query
P. 1
MS ECF 72 - 2012-11-21 - TvDPM - DEFENDANTS ONAKA AND FUDDY’S Motion to Strike Exhibits 5 and 6.

MS ECF 72 - 2012-11-21 - TvDPM - DEFENDANTS ONAKA AND FUDDY’S Motion to Strike Exhibits 5 and 6.

Ratings: (0)|Views: 223|Likes:
Published by Jack Ryan

More info:

Published by: Jack Ryan on Nov 21, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

08/25/2014

pdf

text

original

 
IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF MISSISSIPPIJACKSON DIVISIONDR. ORLY TAITZ, ESQ., ET AL. PLAINTIFFSV. CIVIL ACTION NO. 3:12cv280-HTW-LRADEMOCRAT PARTY OF MISSISSIPPI, ET AL. DEFENDANTSDEFENDANTS DR. ALVIN ONAKA AND LORETTA FUDDY’SMOTION TO STRIKE EXHIBITS FIVE AND SIX OF PLAINTIFFS’ ADDITIONALPROOF OF SERVICE PER COURT REQUEST
COME NOW the Defendants, Dr. Alvin Onaka (hereinafter “Onaka”) and Loretta Fuddy(hereinafter “Fuddy”) (hereinafter collectively “Defendants”), by and through their counsel of record, Dukes, Dukes, Keating & Faneca, P.A., and pursuant to Rule 12(f) of the Federal Rulesof Civil Procedure, file their Motion to Strike Exhibits Five and Six of Plaintiffs’ AdditionalProof of Service Per Court Request, and without waiving the right to plead and be heard on anyother defenses would further show unto this Honorable Court the following:
I.
 
RELEVANT FACTUAL AND PROCEDURAL HISTORY
 At the hearing on Defendants’ Motion to Dismiss, on November 16, 2012, this Courtinstructed the Plaintiffs to provide proof of attempted service of process on the Hawaii AttorneyGeneral in light of Plaintiff Taitz’s statement that she had copies of return receipts indicatingsuch. On November 20, 2012, a document entitled “Additional proof of service per courtrequest” was filed with this Court. [ECF Doc. 71]. Attached to this document are six (6)exhibits purportedly relied upon by Plaintiffs in support of their position that the HawaiiAttorney General was properly served, when clearly he was not.
Case 3:12-cv-00280-HTW-LRA Document 72 Filed 11/21/12 Page 1 of 6
 
2
II.
 
EXHIBITS FIVE AND SIX SHOULD BE STRICKEN FROM THE RECORD
1
 Exhibit Five attached to the “Additional proof of service per court request” consists of theAffidavit of Michael Zullo and is entirely irrelevant and non-responsive to whether the Plaintiffsattempted to serve the Hawaii Attorney General. [ECF Doc. 71-5]. Similarly, Exhibit Sixattached to the “Additional proof of service per court request” consists of the Affidavit of PaulEdward Irey is entirely irrelevant and non-responsive to whether the Plaintiffs attempted to servethe Hawaii Attorney General [ECF Doc. 71-6]. Because the Court simply requested that thePlaintiffs provide proof of service on the Hawaii Attorney General by filing the “Additionalproof of service per court request[,]” and the Plaintiffs do not even allege that Exhibits Five andSix have any relevance to the question of whether the Plaintiffs attempted to serve the HawaiiAttorney General, it is uncontroverted that these Exhibits have absolutely nothing to do with theissue before the Court. For this reason, the Exhibits should be stricken from the record. Theseaffidavits fail to comply with the affidavit requirements, are immaterial, impertinent, containscandalous material, contain hearsay, and, as such, are wholly inadmissible.Rule 12(f) of the Federal Rules of Civil Procedure provides that “[t]he court may strikefrom a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalousmatter.” In interpreting this provision, the Fifth Circuit has stated that a “motion to strike shouldbe granted only when the pleading to be stricken has no possible relation to the controversy.”
 Brown & Williamson Tobacco Corp. v. United States
, 201 F.2d 819, 822 (5th Cir. 1953) (citing
Samuel Goldwyn, Inc. v. United Artists Corp.
, 35 F. Supp. 633 (S.D.N.Y. 1940)). This is
1
While the Defendants realize that Exhibit Four to the “Additional proof of service per court request” is technicallynon-responsive because some of the information contained therein does not relate to service on the Hawaii AttorneyGeneral; the Defendants do not object to the inclusion of Exhibit Four in the record because it arguably addressesthe issue of attempted, albeit unsuccessful, service of process on the Defendants.
Case 3:12-cv-00280-HTW-LRA Document 72 Filed 11/21/12 Page 2 of 6
 
3precisely the situation here. The controversy that is before the Court is whether the Plaintiffshave proof of service of process on the Hawaii Attorney General. Because the Exhibits have “nopossible relation” to this controversy, they should be stricken from the record.
See id.
 In addition, where an affidavit does not measure up to the standards of Rule 56(c)(4) of the Federal Rules of Civil Procedure, it is subject to a timely motion to strike.
See Auto Drive- Away Co. v. Interstate Commerce Comm’n
, 360 F.2d 446, 448-49 (5th Cir. 1966) (citing formerRule 56(e) of the Federal Rules of Civil Procedure). Specifically, an affidavit must: (1) be madeon personal knowledge; (2) set out facts that would be admissible in evidence; and (3) show thatthe affiant is competent to testify on the matters stated.
See
Fed. R. Civ. P. 56(c)(4). Aside fromthe generic and self-serving statements by the affiants that they are competent to testify and thematters asserted are based on personal knowledge, the content of the affidavits is whollyinadmissible at trial. Indeed, the statements made in the affidavits constitute hearsay, and thereare no exceptions to the hearsay rule that would allow the introduction into evidence of theseirrelevant and self-serving affidavits in the absence of the individuals who prepared them beingsubjected to cross-examination regarding their accuracy, reliability, and admissibility.
See
Fed.R. Evid. 801(c), 802. Further, there is no reliable and competent evidence upon which the Courtcould determine that the affiants are qualified as experts under
 Daubert 
. Finally, the statementswould not assist the trier of fact as to the matters contained therein.These affidavits amount to nothing more than an attempt by the Plaintiffs to injectinadmissible evidence into this case. This Court simply requested that the Plaintiffs provideproof of service on the Hawaii Attorney General by filing the “Additional proof of service percourt request[.]” As such, the matters asserted in Exhibits Five and Six are irrelevant andimpertinent to the subject of the Court’s request and should be stricken from the record. In fact,
Case 3:12-cv-00280-HTW-LRA Document 72 Filed 11/21/12 Page 3 of 6

Activity (35)

You've already reviewed this. Edit your review.
1 thousand reads
1 hundred reads
DaisyMcGee liked this
Rich Gallagher liked this
David J Struebel liked this
DeBunkMePlease liked this
magicmulder liked this
patgund liked this
Andrew Huff liked this
Jim Youngblood liked this

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->