United States District Court, Middle District of Tennessee, Nashville Division
TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE
Pending before the Court are (1) a Report and Recommendation of the Magistrate Judge (Docket No. 105), to which Defendants have filed Objections, Plaintiff has filed a Response, Defendants have filed a Reply, and Plaintiff has filed a Sur-Reply, and (2) Defendants’ Motion for Review (Docket No. 109) of the October 20, 2014 Order of the Magistrate Judge, to which Plaintiff has filed a Response and Defendants have filed a Reply.
MOTION FOR REVIEW
Standard of Review
Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, on a Motion for Review, the Court may reverse or modify the ruling of the Magistrate Judge only if it is clearly erroneous or contrary to law. The Court has reviewed Defendants’ Motion for Review, Plaintiff’s Response, Defendants’ Reply, the Magistrate Judge’s Order and the file. For the reasons set forth below, the Motion for Review is granted in part and denied in part.
Objections and Motion to Strike
Defendants objected to certain of Plaintiff’s summary judgment evidence and moved to strike that evidence from the record (Docket No. 73), alleging that it was inadmissible for failure to comply with the Federal Rules of Evidence and Fed.R.Civ.P. 56. The Magistrate Judge denied Defendants’ Motion, incorrectly relying upon Fed.R.Civ.P. 12(f), which states that a Court may strike from a pleading any “redundant, immaterial, impertinent, or scandalous matter.” To the extend that the Magistrate Judge relied upon the incorrect standard, his Order is clearly erroneous and contrary to law and is overruled.
Under the applicable Rule 56, a party opposing summary judgment may support her assertions by citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials. Fed.R.Civ.P. 56(c)(1)(A). The moving party may object that the material cited to dispute a fact “cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). This standard is not exactly the same as Defendants argue.
Defendants maintain that Plaintiff’s purported evidence is inadmissible. Defendants do not argue that the evidence cannot be presented in a form that would be admissible. The evidence which Defendants contest includes Plaintiff’s Declaration and Plaintiff’s unsworn expert report, which was attached to Plaintiff’s expert’s Declaration.
The testimony set forth in Plaintiff’s Declaration (Docket No. 62) could be admissible in evidence, subject to contemporaneous objections, through Plaintiff’s own testimony at trial. To the extent Defendants wished to attack the credibility of that testimony, they could do so on cross-examination. Similarly, the testimony set forth in Plaintiff’s expert’s Declaration and Report could be admissible in evidence, subject to any Daubert motion or contemporaneous objections, through the expert’s testimony at trial. Again, to the extent Defendants wished to attack the credibility of that testimony, they could do so on cross-examination.
For these reasons, Defendants’ Objections are well-taken in part and overruled in part. Defendants’ Motion to Strike (Docket No. 73) is denied. In any event, the Court notes that it has not relied on either Plaintiff’s Declaration or Plaintiff’s expert’s report in ruling on Defendants’ Objections to the Report and Recommendation.
REPORT AND RECOMMENDATION
Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b)(3) and Local Rule 72.03(b)(3), the Court has reviewed de novo the parts of the Report and Recommendation to which Defendants have objected. The Court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the Magistrate Judge with instructions. For the reasons ...