Hearsay Okay at MSJ? Huh?

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Hearsay Okay at MSJ? Huh?

Postby Administrator » Mon Sep 29, 2014 11:18 pm

Plaintiff's claim that the Trans Union credit report is hearsay and, therefore, not evidence that can be used at summary judgment lacks merit. Hearsay evidence in summary judgment exhibits may be considered if the evidence could later be made admissible at trial. Fed.R.Civ.P. 56(e); Brown v. Muhlenberg Tp., 269 F.3d 205, n. 5 (3d Cir.2001). Both Plaintiff and Defendant support their summary judgment pleadings with hearsay evidence that later could be made admissible.

Perez v. Trans Union, LLC
526 F.Supp.2d 504
November 27, 2007


However, this hearsay statement cannot be admitted for the purpose of establishing the truth of the Commissioners' alleged hostility. See Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996) (inadmissible hearsay cannot be considered at summary judgment).

Tranter v. Crescent Tp., Slip Copy, 2007 WL 3274158, 183 L.R.R.M. (BNA) 2119, W.D.Pa., November 05, 2007 (NO. 2:06-CV-355)


Finally, although I may consider the EEOC's Determination Letter at summary judgment, that, too, does not create a disputed issue of material fact. First, the Determination Letter contains primarily hearsay statements that would be inadmissible at trial, and so cannot create a triable issue of fact. See Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996) (inadmissible hearsay cannot be considered at summary judgment); see also Miller v. Field, 35 F.3d 1088, 1091 (6th Cir.1994). Moreover, the Letter includes no statements by named witnesses that the Hiring Hall passed over black workers to give jobs instead to white workers. Rather, the Letter provides Commission impressions-almost all of them unattributed-that discrimination occurred within the Union. For instance, the Letter includes an unattributed statement that “nepotism has been the dominant factor” in Union hiring. (Doc. No. 123 Ex. A at 2.) Yet, the great bulk of the discriminatory behavior discussed in the Letter is irrelevant to the claims of Plaintiffs: disparate promotion rates for minorities and non-minority apprentices and disparity in the naming of black and white foremen. Thus, the EEOC's conclusion that discrimination occurred is insufficient to create a disputed issue of material fact. Jackson v. Light of Life Ministries, 2006 WL 2974162 (W.D.Pa. Oct.16, 2006); Mondero v. Salt River Project, 400 F.3d 1207, 1215 (9th Cir.2005).

Brundage v. International Ass'n of Bridge, Structural
Slip Copy, 2007 WL 3119856
October 24, 2007


An affidavit “shall set forth such facts as would be admissible in evidence.” Fed. R. Civ. P. 56(e). Hearsay statements that would be inadmissible in court, therefore, cannot be considered in deciding a motion for summary judgment unless the out-of-court declarant could later present that evidence through direct testimony. E.g., Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 466 n. 12 (3d Cir.1989). Defendants argue that the statement of the unidentified dispatcher to Defendant Cerski that Arthur Breese's car was not the one reported as stolen, which is included in paragraph twelve (12) of Mr. Brese's affidavit (Exhibit A) is inadmissible hearsay. Plaintiff responds that the statement is not hearsay because it is not offered to prove the truth of the matter asserted, but rather to demonstrate that the statement was made, in an affidavit to which Defendant Ashley Borough had access at the time it chose to promote Defendant Cerski to police chief. The statement is relevant for this purpose because it tends to show that Cerski was promoted despite allegations that he had engaged in unconstitutional behavior by stopping a car without probable cause or reasonable suspicion. Therefore, as evidence that the city of Ashley was made aware of the allegations of Defendant Cerski's unconstitutional conduct prior to promoting him, the statement in Arthur Breese's affidavit will not be stricken from the record for purposes of deciding the motion for summary judgment.

Coleman v. Cerski
Slip Copy, 2007 WL 2908266
October 04, 2007


Cruz v. MRC Receivables, Corp., ___ F. Supp. 2d. ___, 2008 WL 2627143,
**2-4 (N.D. Cal. July 3, 2008) (sustaining hearsay objections to
credit reports and consumer's declaration, and ordering portions of
declaration stricken); see also Philbin v. Trans Union Corp., 101 F.3d
957, 961 nn. 1-2 (3d Cir. 1996) (excluding hearsay statements from
credit grantors concerning alleged reasons for credit denials); Baker
v. Capital One Bank, 2006 WL 173669, *5 (D. Ariz. Jan. 24, 2006)
(excluding credit reports).
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
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Chairman, Consumer Protection Section, Louisiana State Bar Association

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