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Ferron v. VC E-Commerce Solutions

January 29, 2007

JOHN W. FERRON, PLAINTIFF,
v.
VC E-COMMERCE SOLUTIONS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Mark R. Abel

OPINION AND ORDER

This diversity action is before the court for consideration of a motion for summary judgment (Doc. #30) filed by Plaintiff, John W. Ferron, a memorandum in opposition (Doc. # 41) filed by Defendant OptInRealBig.com, LLC , and a reply memorandum (Doc. # 47) filed by Plaintiff. Also before the Court is a related motion to strike (Doc. # 45) filed by Plaintiff, a memorandum in opposition (Doc. # 50) filed by Defendant OptInRealBig.com, LLC, and a reply memorandum (Doc. # 51) filed by Plaintiff. For the reasons that follow, the Court DENIES both motions.

I. Background

Plaintiff, John W. Ferron, is an Ohio attorney and user of various e-mail accounts through which he has allegedly received a multitude of e-mails from Defendants VC E-Commerce Solutions, Inc., OptInRealBig.com, LLC ("OptIn"), and various Doe Defendants. On June 8, 2006, Plaintiff filed the instant action in which he asserts that OptIn's actions violated the Ohio Consumer Sales Practices Act, specifically Ohio Rev. Code § 1345.02(A). (Doc. # 8.) Plaintiff also seeks a declarative judgment to this effect and permanent injunctive relief to stop the transmission to any Ohio consumer of e-mail messages from Defendants.

On October 11, 2006, Plaintiff moved for summary judgment against OptIn. (Doc. # 30.) In response, OptIn filed with its memorandum in opposition an exhibit titled "Affidavit of Steven Richter." (Doc. # 41, Ex. A.) This filing was not personally signed by Richter, however, and instead bears a signature line reading "Steven Richter by Trudy DeBell" with a following notarization. Plaintiff consequently filed a motion to strike this the Richter document. (Doc. # 45.) The parties have completed their briefing, and both motions are now ripe for disposition.

II. Motion to Strike

As noted, Plaintiff moves this Court to strike OptIn's memorandum in opposition exhibit titled "Affidavit of Steven Richter" (Doc. # 41, Ex. A) on the grounds that Richter did not actually signed this filing. Plaintiff argues that because the first document in question was not signed by the purported affiant, it simply cannot constitute an affidavit offered as summary judgment evidence. See Wright v. Asset Acceptance Corp., 2000 WL 33216031, at *5 (S.D. Ohio 2000) ("an 'affidavit' which is unsigned and not notarized cannot qualify as proper Rule 56 evidence").

OptIn has responded to that argument by filing a December 7, 2006 affidavit that bears Richter's signature. (Doc. # 50, Ex. A.) This second filing explains that Richter had a proxy sign the first filing at his direction because he was out of the country at the time of its execution.

Richter also states in the second filing that he directed the signing-by-proxy and that "[t]o this day I fully endorse the entire contents of the affidavit." (Doc. # 50, Ex. A ¶ 6.)

The Court will consider the contents of the first filing. There is some support for the proposition that the document under attack is in fact a viable affidavit. 3 Am. Jur. 2d Affidavits § 9 (2d ed. 2002) (citing cases supporting the propositions that "an affidavit must be signed by the deponent, or his name must appear therein as the person who took the oath, in order to constitute a formal affidavit" and that "[a] plaintiff's statement was an affidavit, despite the lack of his signature, where the plaintiff's name appeared as the person who took the oath"). The preamble paragraph of the document states that Richter was indeed under oath.*fn1 (Doc. # 41, Ex. A.) Thus, some courts would be reluctant to regard the filing as an improper affidavit.

This Court recognizes that, as the Magistrate Judge noted in his withdrawn January 26, 2007 Order (Doc. # 59), the Sixth Circuit has stated in an unreported case that "[u]nsigned affidavits do not comply with Fed. R. Civ. P. 56(e)." Nassif Ins. Agency, Inc. v. Civic Property and Cas. Co., No. 03-2618, 2005 WL 712578, at *3 (6th Cir. Mar. 30, 2005). Notably, the affidavit at issue in Nassif was also not notarized. Id. This Court need not decide whether a notarized but unsigned-by-the-affiant document qualifies as an affidavitunder Nassif and related cases, however, because the subsequent valid Richter Affidavit moots the issue.

There is support for the position that even if the initial submission were indeed flawed, OptIn managed to repair its error by filing the December 7, 2006 Richter Affidavit. (Doc. # 50, Ex. A.) Plaintiff has not directed this Court to any case law--and the Court is not aware of any law--that indicates that the December 7, 2006 filing (Doc. # 50, Ex. A) cannot incorporate by reference the earlier filed document (Doc. # 41, Ex. A). In contrast, the Court has found some authority that provides support for OptIn's salvage operation. See McLaughlin v. Copeland, 435 F. Supp. 513, 521 (D. Md. 1977) (stating that although "[t]here is no provision in Rule 56 for the resuscitation of a defective affidavit by a later affidavit under either an incorporation by reference or a relation back theory . . . the court will assume that this is permissible"). Thus, even if the initial filing is flawed, the information contained in that document is before the Court by way of the second filing.*fn2

Certainly, OptIn could have and should have sought to avoid the unnecessary affidavit issue before the Court by taking steps to produce initially an affidavit signed by Richter in front of a notary. But despite OptIn's arguably risky practice, the Court declines to strike the November 1, 2006 filing. Even if the initial filing is flawed, OptIn's second filing incorporates that document's content. Although not filed with the memorandum in opposition, the second filing presents no prejudice to Plaintiff because he was aware of the information and (although moving to strike the ...


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