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Murphy v. Kmart Corp.

September 15, 2010

DOUG MURPHY, PLAINTIFF,
v.
KMART CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE AND EXCLUDE IN LIMINE

INTRODUCTION

Pending before the court is defendant's motion to strike the affidavit of plaintiff's counsel and to exclude in limine documents and testimony relating to the verdict in Hawkins v. Kmart Corporation, No. RIC462322 (Cal. Super. Ct. 2009). (Docket 205). Plaintiff resists defendant's motion in its entirety. (Docket 209). This matter has been fully briefed and is ripe for adjudication.

FACTS AND PROCEDURAL HISTORY

Kmart moves to strike from the summary judgment record the special verdict forms entered in Hawkins. The first form is a one-page document setting forth a $25 million dollar punitive damages award against Kmart in favor of plaintiff Bill R. Hawkins. (Docket 195, Exhibit 84). The document is dated July 29, 2009, and is entitled "Special Verdict--Punitive Damages." Id. Plaintiff's counsel attached this document as Exhibit 84 to his affidavit filed on August 14, 2009. (Docket 195).

The second form is a three-page document setting forth the jury's findings of fact with respect to Mr. Hawkins' claims for breach of employment contract and age discrimination. (Docket 204, Exhibit 84). The jury found in favor of Mr. Hawkins on both claims and awarded a total of $916,917 in compensatory damages. Id. Further, to sustain the punitive damages award, the jury found, by clear and convincing evidence, that Kmart committed fraud, oppression, or malice in discharging Mr. Hawkins because of his age. Id. at p. 3. The jury also found, by clear and convincing evidence, that several named Kmart employees committed, authorized, adopted, or approved the fraud, oppression, or malice. Id. This document is dated July 28, 2009, and is entitled "Special Verdict." Id. at pp. 1 & 3. Plaintiff's counsel included the document in his affidavit filed on September 10, 2009.*fn1 (Docket 204). The August 14, 2009, and September 10, 2009, affidavits were filed in opposition to Kmart's pending motion for summary judgment.

Kmart also moves to strike from the summary judgment record and to exclude in limine the September 10, 2009, affidavit of plaintiff's counsel. (Docket 205). Finally, Kmart seeks to exclude in limine the Hawkins special verdict forms and any documents, testimony, references, inferences, or other evidence regarding the verdict in Hawkins. Id.

DISCUSSION

A. September 10, 2009, Affidavit of Plaintiff's Counsel

The court notes Mr. Murphy offers no argument in opposition to Kmart's request to strike and to exclude in limine the September 10, 2009, affidavit.

See generally Docket 209 (plaintiff's memorandum). In any event, the court finds portions of the affidavit inadmissible for purposes of opposing Kmart's summary judgment motion. Fed. R. Civ. P. 56(e) governs the use of affidavits within the context of summary judgment and states, in relevant part:

A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. Fed. R. Civ. P. 56(e)(1).

The September 10, 2009, affidavit contains statements that do not satisfy the criteria set forth in Rule 56(e)(1). For example, counsel states:

(1) "The Special Verdict form is relevant to the Murphy case because it represented findings against Kmart in a very similar age discrimination case.";

(2) "Notably, Kmart was found guilty of fraud, oppression, or malice resulting in punitive ...


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