United States District Court, S.D. Florida, Miami Division
ORDER DENYING DEFENDANTS' MOTION TO STRIKE SHAM
DECLARATION AND DAMAGES REPORT
JONATHAN GOODMAN, UNITED STATES MAGISTRATE
Quiskeya Trading Corp. and Patrick Louissaint move to strike
as a sham Christopher Dupuy's declaration and a damages
expert report attached to the declaration, both of which
Plaintiff Pals Group, Inc. relies on to oppose
Defendants' partial summary judgment motion. [ECF Nos.
60-1');">1; 64]. Pals Group filed an opposition response. [ECF No.
66]. Defendants did not file a reply.
reasons explained below, the Undersigned
denies the motion to strike.
owns Pals Group, an import/export distributor of various food
products for the Caribbean community living in the United
States. For several years, Louissaint worked for Pals Group
in various capacities, including as an accountant. According
to Pals Group, by virtue of his employment, Louissaint became
privy to Pals Group's proprietary information, which he
then wrongly used to form two competing businesses at two
different times. That led Pals Group to sue Louissaint and
Quiskeya (the second allegedly competing company) under
various legal claims, which are pending before this Court.
have moved for partial summary judgment on several of the
claims and filed a statement setting forth what they consider
to be the material, undisputed facts. [ECF Nos. 52; 54]. The
statement relies heavily on testimony given at an evidentiary
hearing that this Court held on Pals Group's motion for
preliminary injunction. [ECF No. 34].
Group filed an opposition response and a counter-statement of
facts that, Pals Group says, create genuine issues of fact
for the jury to consider at trial. [ECF Nos. 60-61');">1]. Pals
Group's statement also relies heavily on the testimony
given at the preliminary injunction evidentiary hearing. But,
in addition, Pals Group relies on a declaration signed by its
owner, Dupuy, which is attached to the statement. [ECF No.
60-1');">1, pp. 1');">1-6]. The declaration, in turn, attaches the expert
report of Pals Group's financial expert, who opines on
Pals Group's damages. [ECF No. 60-1');">1, pp. 7-22].
move to strike Dupuy's declaration and the expert report
on the grounds that they contradict Dupuy's testimony
before the Court at the preliminary injunction hearing. To be
precise, Defendants submit that four different statements
within Dupuy's declaration impermissibly contradict the
prior testimony. Pals Group disagrees, arguing that the
challenged statements, at worst, further explain or expand
upon the prior testimony.
“limited circumstances, ” a court may, as it
evaluates a summary judgment motion, “disregard an
affidavit as a matter of law when, without explanation, it
flatly contradicts his or her 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, 1');">1295');">843 F.3d 1');">1295, 1');">1306 (1');">11');">1th Cir.
201');">16). The so-called “sham affidavit” rule
“operates in a limited manner to exclude unexplained
discrepancies and inconsistencies.” Id. It
does not, on the other hand, exclude inconsistencies that
simply “create an issue of credibility or go to the
weight of the evidence.” Id. Moreover, the
rule must be used “sparingly because of the harsh
effect it may have on a party's case.” Id.
shown above, binding Eleventh Circuit precedent on the
“sham affidavit” rule speaks of “prior
deposition testimony.” Id. (emphasis
added). Defendants, by contrast, argue here that Dupuy's
declaration is a sham because it contradicts his prior
testimony at an evidentiary hearing. No party flags
this potential distinction (between deposition testimony and
testimony at a hearing) or discusses whether the difference
could have legal consequences. Independent research has
revealed at least one decision, by Magistrate Judge John
O'Sullivan, finding that the “sham affidavit”
rule applies with equal force to prior sworn testimony given
at a hearing as it does to prior sworn testimony given at a
deposition. See Hill v. Lazarou Enters., Inc., No.
1');">10-61');">1479-CIV, 201');">11');">1 WL 1');">1331');">1272, at *1');">15 (S.D. Fla. Mar. 1');">17,
201');">11');">1) (“The undersigned sees no reason to distinguish
between sworn testimony at an unemployment hearing and sworn
testimony at a deposition.”) (citing McCormick v.
City of Fort Lauderdale, 1');">1234');">333 F.3d 1');">1234, 1');">1240 n. 7 (1');">11');">1th
Cir. 2003) (applying the “sham affidavit” rule
where affidavit allegedly contradicted prior sworn statement
given to police)).
potential issue, however, will not be addressed here because
the Court finds that the challenged statements do not
actually contradict prior testimony -- and
therefore should not, as a threshold matter, be struck under
the “sham affidavit” rule.
first focus on paragraph 1');">10 of Dupuy's declaration, which
I testified at the hearing on Pals Group's motion for
preliminary injunction that “I hoped” Mr.
Louissaint and his company would pay their debt back to Pals
Group. To be clear, this testimony was not meant to convey
that Mr. Louissaint and his company had the option to pay or
not pay - there was (and remains) an express agreement (now
breached) by Mr. Louissaint to re-pay the debt incurred.
Instead, my testimony was meant to convey that I was hopeful
that what has happened would not happen again - that is, that
Mr. Louissaint and his company would be unable to repay their
debt, or deliberately avoid it.
[ECF No. 60-1');">1, p. 3].
argue that this statement contradicts the following testimony
Dupuy gave at the preliminary injunction hearing:
I told him [Louissaint] I think it makes sense for you to
keep on doing business. Those trucks are not worth anything
to me, but to you they are worth something for you to keep
doing business and, then, hopefully, eventually, can pay me
back what you owe me.
I told him [Louissaint], [w]ell, then let's do this. Take
back the trucks, because to me, and if I do this merger with
Iberia, if it goes through, those trucks are worthless ...