Molina et al v. Ace Homecare LLC

Middle District of Florida, flmd-8:2016-cv-02214

ORDER granting {{90}} Plaintiffs' Unopposed Motion for Approval of Collective Action Settlement and Preliminary Approval of Warn Act Class Action Settlement; setting a fairness hearing for 5/31/208 at 10:00 a.m in Courtroom 13B. Signed by Judge James D. Whittemore on 4/26/2018. (SMA)

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Case Case8:17-cv-00199-JDW-CPT 8:16-cv-02214-JDW-TGW Document Document129 94 Filed Filed 04/13/18 04/26/18 Page Page 11 of of 33 PageID PageID 3466 815 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION WALTER REED, on behalf of himself and on behalf of all others similarly situated, Plaintiff, v. CASE NO. 8:17-CV-00199-JDW-CPT CRST VAN EXPEDITED, INC., a foreign for profit company, Defendant. _______________________________________/ PLAINTIFF'S MOTION TO STRIKE EXHIBIT I (RULE 26(a)(2) DISCLOSURES) OF EXPERT WITNESS BARRY J. NADELL IN DEFENDANTS MOTION FOR SUMMARY JUDGEMENT Plaintiff WALTER REED ("Plaintiff"), pursuant to Federal Rule of Civil Procedure 56(e) and 28 U.S.C. § 1746 respectfully request this Court exclude any testimony by Defendant's expert, Barry J. Nadell ("Mr. Nadell"), on topics included in Exhibit I (Rule 26(a)(2) Disclosures), served by Defendant, CRST VAN EXPEDITED, INC. ("Defendant"), on January 24, 2018 for purposes of its consideration of the motion for summary judgment filed by Defendant (Dkt. 125). 1. Plaintiff argues that Defendant did not submit an affidavit by Mr. Nadell stating that the report was made under penalty of perjury pursuant to 28 U.S.C. § 1746. It is well known that, "Only 'pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits' can be considered by the district court in reviewing a summary judgment motion." Carr v. Tatangelo, 338 F.3d 1259, 1273 (11th Cir. 2003), as amended (Sept. 29, 2003) (quoting former Fed. R. Civ. P. 56(e)). As clearly noted in the Federal Rules, "Unsworn Case Case8:17-cv-00199-JDW-CPT 8:16-cv-02214-JDW-TGW Document Document129 94 Filed Filed 04/13/18 04/26/18 Page Page 22 of of 33 PageID PageID 3467 816 statements 'do [ ] not meet the requirements of Fed. Rule Civ. Proc. 56(e)' and cannot be considered by a district court in ruling on a summary judgment motion." Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17 (1970)). 2. Therefore, Mr. Nadell's expert report has no probative value and cannot be used in consideration of Defendant's motion for summary judgment. See Beard v. Green, No. 08-22284-CIV-SEITZ, 2010 WL 411084, at *10 (S.D. Fla. Jan. 29, 2010) (citing Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306-07 (5th Cir. 1988)) ("Just as is true for an unsworn affidavit, a document which does not meet the requirements of Fed.R.Civ.P. 56(e) or 28 U.S.C. § 1746, is to be disregarded by a court in conjunction with its review of the record in consideration of a defendant's motion for summary judgment."). WHEREFORE, Plaintiff respectfully requests this Court grant his Motion to Strike Defendant's Exhibit I (Rule 26(a)(2) Disclosures) of Expert Witness, Barry J. Nadell submitted with Defendant's motion for summary judgement. Respectfully submitted: By: /s/ Marc R. Edelman Marc R. Edelman (FBN 96342) MORGAN & MORGAN One Tampa City Center Tampa, FL 33602 Telephone: 813-223-5505 Attorney for Plaintiff Case Case8:17-cv-00199-JDW-CPT 8:16-cv-02214-JDW-TGW Document Document129 94 Filed Filed 04/13/18 04/26/18 Page Page 33 of of 33 PageID PageID 3468 817 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of April 2018, a copy of the foregoing was filed electronically. Notice of this filing will be send by operation of CM/ECF to the following: E. Holland Howanitz, Esq. Molly A. Arranz, Esq. Wicker, Smith, O'Hara, McCoy & Ford, P.A. Smithamundsen, LLC 50 North Laura Street, Suite 2700 150 North Michigan Avenue, Suite 3300 Jacksonville, Florida 32202 Chicago, Illinois 60601 Attorney for Defendant Pro Hac Vice, Attorney for Defendant /s/ Marc R. Edelman Marc R. Edelman, Esq.