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OFI International, Inc. v. Port Newark Refrigerated Warehouse

United States District Court, D. New Jersey

January 12, 2015

OFI INTERNATIONAL, INC. et al., Plaintiffs,


WILLIAM J. MARTINI, District Judge.

Plaintiffs OFI International, Inc. ("OFI") and Watermark Foods, Inc. ("Watermark") filed this action against Defendant Hudson Refrigeration Company d/b/a Port Newark Refrigerated Warehouse ("Defendant" or "PNRW"). Plaintiffs allege that PNRW mishandled numerous shipments of Plaintiffs' frozen seafood. Specifically, Plaintiffs seek damages for 958, 297 pounds of frozen seafood products (the "Subject Goods"), which were allegedly subject to temperature abuse while in storage at PNRW's warehouse at 125 Tyler Street, Newark, New Jersey (the "PNRW Warehouse").

This matter comes before the Court on Defendant's motion and Plaintiffs' crossmotion for summary judgment under Federal Rule of Civil Procedure 56. Also before the Court is Defendant's motion to strike certain evidence from the summary judgment record. There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, the Court will treat Defendant's motion to strike as objections under Rule 56(c) and will partially SUSTAIN and partially OVERRULE those objections. Additionally, Defendant's motion for summary judgment is DENIED, and Plaintiffs' cross-motion for summary judgment is partially GRANTED and partially DENIED.


Defendant moves to strike the following evidence, which Plaintiffs submitted in opposition to Defendant's motion for summary judgment: (1) portions of the Declaration of Neel Reddy (the "Reddy Declaration"), (2) the Declaration of William Bennett, Esq. (the "Bennett Declaration"), (3) the Declaration of Charles McLaughlin (the "McLaughlin Declaration"), (4) the expert report of Patrick Brecht (the "Brecht Report"), and (5) the expert report of Pierce Powers (the "Powers Report, " and together with the Brecht Report, the "Expert Reports"). Following the 2010 amendments to Rule 56, a motion to strike is no longer a proper means of attacking the admissibility of summary judgment evidence. See Ankney v. Wakefield, No. 10-1290, 2012 WL 1633803, at *1 (W.D. Pa. May 8, 2012). The Court will thus construe Plaintiff's motion to strike as objections under Rule 56(c). See id.

A. The Declarations

Rule 56(c) provides that "an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). Defendant argues that the Reddy Declaration, the Bennett Declaration, and the McLaughlin Declaration fail to meet these requirements. The Court disagrees, with one exception related to an inadmissible opinion in the McLaughlin Declaration.

i. Reddy Declaration

Neel Reddy is the President of OFI International and the Vice President of Watermark Foods. Reddy Decl. ¶ 1, ECF No. 70-2. Defendant objects to paragraphs 2, 3, 5, 6, 7, 8, 9, 10, 11, and 12 of the Reddy Declaration. Defendant argues that those paragraphs are not based on personal knowledge, set forth inadmissible facts, and contain information outside of Reddy's competence. The Court will overrule Defendant's objections.

A declaration or affidavit need not explicitly state that the declarant or affiant is competent to testify or that his statements are made on personal knowledge. Rule 56(c)(4) requires not that an affiant state these things, but rather that the affidavit "be made on personal knowledge" and "show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, if a sworn affidavit clearly flows from personal knowledge of a competent affiant, a court may consider it on summary judgment. See, e.g., Keating v. Bucks County Water & Sewer Auth., 2000 WL 1888770 at *4 (E.D. Pa. 2000) (noting that, to extent averments in affidavit sworn to be "true and correct to the best of [affiant's] knowledge, information and belief" clearly were based on personal knowledge, they were appropriately considered on summary judgment).

Furthermore, the Supreme Court has stated that a nonmoving party need not produce evidence in a form that would be admissible at trial to avoid summary judgment. Celotex v. Catrett, 477 U.S. 317, 324 (1986). Accordingly, the Third Circuit has concluded that "... hearsay evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present the evidence through direct testimony, i.e., in a form that would be admissible at trial.'" J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990) (quoting Williams v. Borough of West Chester, 891 F.2d 458, 465-66 n.12 (3d Cir. 1989)).

Regarding paragraph 3, Defendant objects to the statement "Watermark Foods is a "d/b/a' [sic] of RFD Enterprises, LLC, a California Corporation." Defendant argues that, in their Second Amended Complaint, Plaintiffs alleged that Watermark was a corporation formed under New York law and that Plaintiffs should be bound by that allegation. See Second Am. Compl. ¶ 2, ECF No. 11. However, Plaintiff confirmed during a November 18, 2014 hearing that the representation in the Second Amended Complaint was a mistake, and that Watermark is registered in California. Thus, this objection is overruled.

Defendant's objections to a portion of paragraph 2[1] and paragraphs 5 through 12[2] are also unconvincing. Each paragraph complies with Rule 56(c)(4). First, as a corporate officer, Reddy is presumed to possess personal knowledge of the acts of the corporation. See Catawba Indian Tribe v. State of South Carolina, 978 F.2d 1334, 1342 (4th Cir. 1992) (holding that a corporate officer ordinarily possess personal knowledge of acts of corporation and, in absence of proof of no personal knowledge, the personal knowledge element is satisfied). Further, as a Rule 30(b)(6) representative, Reddy may "testify about information known or reasonably available to the organization." Fed. R.Civ. P. 30(b)(6). The use of the word "we" in the declaration is thus permissible, because Reddy is testifying on Plaintiffs' behalf. Second, Reddy will be a declarant produced at trial to offer his statements in admissible form and subject to cross-examination. Third, the record lays the foundation for Reddy's declarations. For instance, in his deposition, Reddy discusses both his and his brother's experience in the frozen shrimp industry. See Def.'s Mot. for Summary J. Ex. 2 ("Reddy Dep.") 15:23-17:10, ECF No. 69-4. This experience, as well as his position as a corporate officer of Plaintiffs, lays the foundation for his declarations in paragraphs 11 and 12. Additionally, regarding paragraph 5, Reddy specifically stated during his deposition that he met with Mr. Van Dohlen, who assured him that there would be no issues with storing the frozen shrimp at PNRW. Reddy Dep. 128:10-129:15. Fourth, Plaintiffs do not need to lay a foundation for or attach the rate quote sheet referenced in paragraph 6, because the declaration has nothing to do with the content of that sheet. Rather, it is simply stating that Plaintiffs received that sheet from Defendant. Fifth, none of these paragraphs constitute inadmissible hearsay. For instance, in paragraph 9, to the extent that Reddy's knowledge of the cargo access issues relied on statements by Chris Bender, the insurance adjuster, Bender provided corroborating deposition testimony about those issues. See Def.'s Mot. for Summ. J. Ex. 13 ("Bender Dep.") 13 26:7-28:13, ECF No. 69-20. Accordingly, Plaintiffs can produce him at trial to offer those statements in admissible form. See Rossi v. Standard Roofing, Inc., 156 F.3d 452, 470 n.13 (3d Cir. 1998). And regarding paragraph 10, Bender reviewed and inspected the cargo and provided a report to Plaintiffs summarizing his findings. See Bender Dep. 29:5-14. Finally, the Court will not disregard paragraph 7 under the sham affidavit doctrine, because paragraph 7 is consistent with Plaintiff's interrogatory responses and Reddy's prior deposition testimony.[3] See In re CitX Corp., 448 F.3d 672, 679 (3d Cir. 2006) (finding that courts may disregard an affidavit submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony). Similarly, the Court will not disregard paragraphs 5 and 10 under that doctrine, because those paragraphs do not necessarily conflict with the record evidence.[4] Accordingly, the Court will overrule Defendant's objections to the Reddy Declaration.

ii. Bennett Declaration and the McLaughlin Declaration

The Court will also overrule Defendant's objections to the Bennett Declaration and the McLaughlin Declaration. The Bennett Declaration consists of 12 paragraphs. 11 of those paragraphs identify attached exhibits, which are labeled A though K. One of these exhibits - Exhibit F - is the McLaughlin Declaration. Defendant argues that the entire Bennett Declaration is inadmissible, because it is not based on Bennett's personal knowledge. Defendant also argues that because Exhibits A, B, D, F, and G[5] were produced by Plaintiffs - not Defendant - during discovery and because Plaintiff failed to properly authenticate those exhibits, the Court should not consider them. Finally, Defendant argues that Exhibit F and Exhibit J were not produced during discovery and are thus inadmissible.

As an initial matter, Defendant misreads the Bennett Affidavit. Bennett is not attesting to the facts contained within the attached documents; he's offering true and accurate copies of documents produced in discovery. Bennett has personal knowledge as to whether he has submitted true and accurate copies of documents produced in discovery. And Defendant ignores the reality that filing documents pursuant to attorney declaration is a well-established practice. See, e.g., Shell Trademark Mgmt. BV v. Ray Thomas Petroleum Co., Inc., 642 F.Supp.2d 493, 511 (W.D. N.C. 2009). "Documents produced in response to discovery requests are admissible on a motion for summary judgment since they are self-authenticating and constitute the admissions of a party opponent." Anand v. BP W. Coast Prods. LLC, 484 F.Supp.2d 1086, 1092 n.11 (C.D. Cal. 2007). Accordingly, courts have warned litigants like Defendant that "[i]t is disingenuous and wasteful" to object to one's own documents based upon personal knowledge or authentication. Id. (quoting Comm. Data Servers, Inc. v. IBM, 262 F.Supp.2d 50, 60 (S.D.N.Y. 2003)).

Further, as to the documents that Plaintiffs themselves produced, the Court finds that there is sufficient circumstantial evidence to authenticate those documents. See United States v. Balice, 505 F.App'x 142, 146 (3d Cir. 2012) ("The burden of proof under Rule 901 is slight, requiring only a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be."); Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 928 (3d Cir. 1986) (noting that distinctive characteristics of the challenged documents - such as "company logos and other trademarks, the professional appearance of the various handbooks and manuals, and the specific nature of the contents" - are sufficient to overcome the slight authentication admissibility burden). Exhibit A includes customer complaints about the Subject Goods addressed to an OFI employee. See United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (authenticating emails based on the email addresses in the headers, explanations in the body of the emails, defendants' conduct after receiving the emails, and other circumstantial evidence). Exhibit B is a letter on Defendant's own letterhead addressed to OFI regarding the customer complaints. Exhibit D contains warehouse receipts with "Port Newark Refrigerated Warehouse Company" printed along the top. And Exhibit G includes work orders and invoices for "Port Newark Refrigerated Warehouse, " which contain a "Refrigeration Design & Service Inc." logo. Finally, as to Exhibit J, Plaintiffs provided the Court with an email from Bennett to Plaintiffs, dated April 19, 2013, describing it as a "transcript of a telephone conversation between Mr. Barrillaro [an employee of OFI] and Mrs. Blanc [an employee of Defendant]." The Court also notes that Defendant does not claim that the transcript is inaccurate. Finally, even if there were not sufficient circumstantial evidence to authenticate these documents, they can be authenticated through testimony at trial. Accordingly, the Court could still consider them in connection with Plaintiffs' opposition. See Celotex Corp., 477 U.S. at 324 (holding that a nonmoving party need not "produce evidence in a form that would be admissible at trial in order to avoid summary judgment").

The Court moves next to Defendant's argument that the Court should not consider Exhibits F and J because they were not produced during discovery. The Court finds that Plaintiffs were under no obligation to provide Defendant with Exhibit F - the McLaughlin Declaration. McLaughlin is a fact witness for Plaintiffs - not an expert - and was identified in documents produced by Plaintiffs as an individual with knowledge about the case. However, the Court agrees that paragraph 20 of the McLaughlin Declaration is an inadmissible opinion and will not consider that statement.[6] And as to Exhibit J - which is a copy of a transcribed telephone conversation - Plaintiffs provided the Court with proof that Defendants received that document via email on April 19, 2013. Letter from William R. Bennett III Ex. 6, ECF No. 83-6.

The Court will thus sustain Defendant's objection to paragraph 20 of the McLaughlin Declaration, but will overrule all other objections to the Bennett Declaration and the McLaughlin Declaration.

B. The Expert Reports

Finally, Defendant objects to the Expert Reports, which Plaintiff initially submitted without a sworn declaration attached to the Bennett Declaration as Exhibit H (Brecht Report) and Exhibit I (Powers Report). A court should not consider an unsworn expert report when evaluating a motion for summary judgment. Fowle v. C & C Cola, 868 F.2d 59, 67 (3d Cir.1989) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n.17 (1980). However, on May 30, 2014, Plaintiffs cured the defect by providing sworn declarations from Dr. Brecht and Mr. Powers. Maytag Corp. v. Electrolux Home Products, Inc., 448 F.Supp.2d 1034, 1064 (N.D. Iowa 2006) aff'd, 224 F.App'x 972 (Fed. Cir. 2007).

Defendant further objects to the Expert Reports on the grounds that they are irrelevant to the issues raised in Defendant's summary judgment motion. The Court disagrees. The Expert Reports each provide evidence as to whether overcrowding at PNRW's facility damaged the Subject Goods. See Decl. of Patrick Brecht 13, ECF No. 75; Decl. of Pierce N. Power 34, ECF No. 76. Defendant's objections to the Expert Reports will be overruled.


Having considered Defendant's lengthy and almost entirely unmeritorious objections, the Court turns to the parties' summary judgment motions. The Court will ...

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