The opinion of the court was delivered by: Judge Gregory L. Frost
Presently before the Court is the motion of Defendants Patricia Bruhn, Frank Sabatino, John Bukmir, Tim Porter, John Swan, Linda Burech, and Jim Weisgerber ("City Council Defendants") for summary judgment on all of Plaintiff Samuel Harris' ("Harris") claims against them. (Doc. # 93). Harris has filed a memorandum in response (Doc. # 100) to which the City Council Defendants responded (Doc. # 102). For the reasons that follow, the Court will hold the motion in abeyance until further briefing is completed. (Doc. # 93).
The Court must first address and resolve several evidentiary issues. First, the City Council Defendants assert that the report of forensic document examiner Ray Fraley ("Fraley"), attached to Exhibit F to Harris' memorandum in opposition, is inadmissible because it is not authenticated. (Doc. # 102 at 4 n. 2). Second, Harris attached the minutes of several St. Clairsville City Council meetings to his memorandum in opposition. (Doc. # 100 Ex. C, D). The City Defendants state that those minutes are not properly authenticated. (Doc. # 102 at 3 n.1). Lastly, the City Defendants note that Harris cited to the deposition testimony of Jim Weisgerber ("Weisgerber") without providing the Court with a copy of that deposition. (Doc. # 102 at 4 n.2). The Court finds that two of the three objections are well-taken.
Although a party must produce evidence in support of its opposition to a motion for summary judgment, not all types of evidence are permissible. McQuain v. Ebner Furnaces, Inc., 55 F. Supp. 2d 763, 769-770 (N.D. Ohio 1999). For example, "hearsay evidence cannot be considered on a motion for summary judgment." Wiley v. United States, 20 F.3d 222, 225-226 (6th Cir. 1994). Additionally, the Sixth Circuit has held "'it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'" Id. at 226 (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Admissible evidence is defined as "evidence that is relevant and of such a character . . . that the court should receive it." (Black's Law Dictionary 235 (pocket ed. 1996)). Federal Rule of Evidence 401 defines relevant evidence as "evidence having any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Authentication is a special aspect of relevancy concerned with establishing the genuineness of evidence and is a condition precedent to admissibility. Fed. R. Evid. 901(a) and advisory committee's notes.
Evidence that is neither authenticated nor admissible "may be considered by the district court unless the opposing party affirmatively raises the issue of the defect. The burden is on the opposing party to object to the improper evidence; failure to object constitutes a waiver." McQuain, 55 F. Supp. 2d at 770. The City Council Defendants have objected to Harris' proffered evidence as noted above.*fn1 (Doc. # 56 at 1).
In an apparent attempt to authenticate Fraley's report, Harris' attorney John Yaklevich ("Yaklevich") stated in his affidavit "[a]ttached hereto is a copy of the Rule 26(f) Report of Ray Fraley, plaintiff's handwriting expert in this auction." Yaklevich's attempt fails, as the only person who authenticate the report is Fraley because he was the person who actually completed the document. Accordingly, the Court SUSTAINS the objection of the City Council Defendants and STRIKES Fraley's report from the record for lack of authentication.
The Court addresses the City Council Defendants' mention of the City Council minutes only for the sake of completeness. The City Council Defendants offer a weak argument to Harris' attachment of City Council minutes to his memorandum in opposition. Namely, the City Council Defendants state "[a]lthough [Harris] has not properly authenticated [Exs. C & D], the [City Council] Defendants do not dispute that Exhibit C attached to Plaintiff's Memorandum in Opposition is an accurate copy of the minutes of the Council meeting held on July 19, 2004." (Doc. # 102 at 3 n. 1). The City Council Defendants do not specifically object to Exhibit D to Harris' memorandum--a copy of the August 2, 2004 City Council meeting minutes. (Doc. # 102 at 3). The acknowledgment that Exhibit C is an accurate copy of the July 19, 2004 meeting minutes, coupled with the failure to lodge an authentication objection to the August 2, 2004 minutes, compels the Court to OVERRRULE any "objection" the City Defendants intended to raise in their reply.
Lastly, the City Council Defendants are correct that Harris failed to file Weisgerber's deposition with the Court even though Harris relied on Weisgerber's testimony in his memorandum in opposition. (Doc. # 102 at 4 n.2). Southern District of Ohio Local Rule 7.2(e) requires Harris to provide the Court with that information. As such, the Court SUSTAINS the objection of the City Council Defendants and the Court hereby STRIKES all portions of Harris' memorandum in opposition that reference Weisgerber's deposition testimony.
For reasons that will become clear shortly, the Court shall bypass the traditional background section and shall instead proceed directly to a recitation of the familiar summary judgment standard ...