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Doolin v. Borg Warner Corp.

United States District Court, M.D. Florida, Jacksonville Division

September 13, 2017

Stacey Doolin, as personal representative of the Estate of Richard E. Doolin, Plaintiff,
v.
Borg Warner Corporation etc., Defendants.

          ORDER

          Patricia D. Barksdale, United States Magistrate Judge

         Before the Court is defendant Ford Motor Company's motion to strike the plaintiff's affidavit filed in connection with her response in opposition to its motion to dismiss for lack of personal jurisdiction.[1] Doc. 90. Ford requests a hearing on the motion. Doc. 90 at 7. The plaintiff opposes the motion. Doc. 97.

         When a party submits an affidavit to support or oppose a motion to dismiss based on lack of personal jurisdiction, a court considers “only those portions of the … [a]ffidavit that set forth specific factual declarations within the affiant's personal knowledge.” Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1215 (11th Cir. 1999) (alteration added). Witness testimony is admissible as evidence only if based on the witness's personal knowledge, Fed.R.Evid. 602, and (with limited exceptions) not on hearsay, Fed.R.Evid. 801-807. A motion to strike an affidavit based on its admissibility presents an evidentiary objection more appropriately considered when a court rules on the motion to which the affidavit relates. See Cableview Commc'ns of Jacksonville, Inc. v. Time Warner Cable Se., LLC, No. 3:13-cv-306-J-34JRK, 2016 WL 128561, at *3 (M.D. Fla. Jan. 12, 2016) (unpublished) (Howard, J.) (“[T]o the extent Time Warner argues in the Motion to Strike that the aforementioned documents are not admissible evidence as required by [Federal Rule of Civil Procedure] 56(c), … the Court construes these arguments as evidentiary objections and will consider them, where necessary, in its analysis of the instant Motion to Dismiss and when it takes up consideration of the pending summary judgment motions.”).

         A court may “disregard an affidavit as a matter of law when, without explanation, it flatly contradicts [the affiant's] own prior deposition testimony for the transparent purpose of creating a genuine issue of fact where none existed previously.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1306 (11th Cir. 2016). The rule does not apply to discrepancies and inconsistencies that “create an issue of credibility or go to the weight of the evidence.” Id. (internal quotation marks omitted). “In any case, the rule should be applied sparingly because of the harsh effect it may have on a party's case.” Id. at 1307 (internal quotation marks omitted).

         In the affidavit, signed in April 2017, the plaintiff avers that she “recall[s] [the decedent] performing brake work on Ford vehicles on multiple occasions while living in Florida.” Doc. 77-6 ¶ 4; Doc. 95-6 ¶ 4. During her deposition the following month, she provided the following pertinent testimony:

Q What other hobby cars did he have-did you all have?
A He had … the Impala, he had Chevies, Ford, maybe a Jeep. And then he worked on our family vehicles.
Q All right. What was the year of the Jeep? What model, year?
A I don't recall.
Q How about the Ford?
A I don't recall. I drove a Ford Escape. I think it was a-I don't recall. 2001 maybe.
Q All right. What work did he do on the Ford [Escape]?
A Oil change, brake change, windshield wiper change.
Q Was … there another hobby car other than the Impala … that he worked on?
THE WITNESS: Various through the years.
Q Do you have any records of any of the work that he did?
A No. I don't … have that.
Q [Other than the 2001 Escape, ] [d]o you recall any other year or model of any other Ford?
A No.
Q So, for example, you can't give me a list of Fords that you and your husband may ...

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