The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER
Currently pending before the Court are nine motions, seven of which are scheduled for hearing on December 15, 2010. The Court will take this opportunity to resolve three of the pending motions before December 15, 2010 in an attempt to focus the parties and the Court on larger, more substantive issues during the hearing. Therefore, having carefully reviewed the record and otherwise being fully advised, the Court issues the following Memorandum Decision and Order:
While there are many moving parts to this action, since the beginning, the general backdrop to Plaintiffs' claims relate to the development, marketing, purchase, sale, and construction of 28 lots and homes in the "Teton Springs" real estate development in Victor, Idaho. The nuanced specifics of such claims are not necessarily important to the Court's resolution of the few motions now orbiting the more significant dispositive motions that are currently pending; as a consequence, particular facts will not be discussed in detail here. Suffice it to say, as purchasers of the above-referenced 28 lots and homes, Plaintiffs take issue with the alleged manner in which Defendants' marketed and sold those properties. Defendants, in turn, deny these allegations, contending, further, that Plaintiffs themselves were integral players in an investment scheme that ultimately backfired.
In triaging the various motions set for hearing on December 15, 2010, the undersigned attempted to consider up-front those motions capable of resolution on the briefing alone - the low-hanging fruit, if-you-will. While not discounting the importance of such motions, with their early consideration and disposition, it is the Court's hope that the scheduled hearing can be devoted mostly to the core issues making up the parties' respective claims and defenses. With this in mind, the following motions are resolved here:
* Plaintiffs' Motion to Strike All Season Defendants' Supplemental Statement of Facts (Docket No. 441)
* Defendant Thomas A. Sarty's Motion to Strike (Docket No. 443)
* Defendant All Seasons' Motion to Strike Exhibits 2, 3, 6, 8-24, & 30 From the Affidavit of Mark McLean and Attachments to Plaintiffs' Statement of Facts (Docket No. 458)
I. Plaintiffs' Motion to Strike All Season Defendants' Supplemental Statement of Facts (Docket No. 441)
On March 15, 2010, All Seasons filed its Motion for Summary Judgment (Docket No. 394). Contemporaneous with its Motion for Summary Judgment, All Seasons also filed its 18-page Statement of Undisputed Facts (Docket No. 394, Att. 1). At paragraph 12 of its Statement of Undisputed Facts, All Seasons stated in relevant part:
Had the plaintiffs provided accurate and truthful information in their loan applications, they would not have been approved for financing by either First Horizon, National City Bak or Aegis. See Affidavit of First Horizon (to be supplemented) . . . .
See id. at p. 10, ¶ 12. Plaintiffs did not object to All Seasons' March 15, 2010 Statement of Undisputed Facts.
On March 24, 2010, this Court addressed Teton Springs' Motion to Extend Discovery (Docket No. 386) to accommodate the testimony (via deposition or affidavit) of MetLife Home Loans f/k/a First Horizon Home Loans. See Order (Docket No. 418). The Court granted Teton Springs' Motion, outlining the following protocol:
On or before April 7, 2010, Defendants are to secure (via deposition (with all interested parties' participation) or affidavit) MetLife's testimony - the discovery deadline is therefore extended in this limited respect only. Defendants are, in turn, permitted to file a 5-page supplement to their existing Motion for Partial Summary Judgment . . . on or before April 14, 2010 - the dispositive motion deadline is therefore extended in this limited respect only.
See id. at pp. 3-4. Likewise, in response to a March 30, 2010 Stipulation (Docket No. 422), on March 31, 2010, the Court reiterated that "Defendants are permitted to supplement the motions [for summary judgment], limited to five (5) pages, by April 14, 2010. See Order (Docket No. 423).
On April 14, 2010, Teton Springs filed the two-page Affidavit of Peggy M. Mullins, containing information based upon her personal knowledge relating to "the practices and policies of First Horizon Home Loans, a division of First Tennessee Bank National Association, successor in interest by merger to First Horizon Home Loan Corporation . . . ." See Mullins Aff. (Docket No. 434). Plaintiffs did not object to the filing of Ms. Mullins's Affidavit.
On April 20, 2010, All Seasons filed an 18-page Supplemental Statement of Undisputed Facts (Docket No. 438). All Seasons' April 20, 2010 Supplemental Statement of Undisputed Facts is identical in nearly every respect to its original, March 15, 2010 Statement of Undisputed Facts, except as to paragraph 12, which reads:
Had the plaintiffs provided accurate and truthful information in their loan applications, they would not have been approved for financing by either First Horizon, National City Bak or Aegis. See Affidavit of Peggy Mullins . . . . See id. at p. 10, ¶ 12.
Through their Motion to Strike, Plaintiffs object to All Seasons' Supplemental Statement of Undisputed Facts, arguing that All Seasons' Supplemental Statement of Undisputed Facts (1) was submitted six days after the Court's above-referenced April 20, 2010 deadline; (2) vastly exceeds the Court's above-referenced 5-page limit on any supplementation; and (3) presents factual misrepresentations. See Mot. to Strike, pp. 2-5 (Docket No. 441). Plaintiffs' arguments are without merit.
First, pursuant to the Court's Orders, Ms. Mullins's affidavit - which did, in fact, supplement the pending motions for summary judgment (but more closely took the form of a single errata, with no new factual arguments) - was filed on or before April 14, 2010. More practically speaking, however, the thrust of All Seasons' Motion for Summary Judgment, represented by All Seasons' Statement of Undisputed Facts and Supplemental Statement of Undisputed Facts, remained the same from the time All Seasons first filed its Motion for Summary Judgment - March 15, 2010 - to the time All Seasons filed its Supplemental Statement of Undisputed Facts - April 20, 2010. Therefore, even if Plaintiffs' untimeliness argument applied, there is no obvious detriment to Plaintiffs in any technical delay.
Second, Plaintiffs overstate the content of All Seasons Supplemental Statement of Undisputed Facts. Looking only at Plaintiffs imply that All Seasons filed an altogether new, 18-page supplement to their existing Motion for Summary Judgment. This is not the case, when understanding that All Seasons' nearly identical original Statement of Undisputed Facts was, also, 18 pages. To be clear, All Seasons' Supplemental Statement of Undisputed Facts substitutes out five words - "First Horizon (to be supplemented)" - for two words - "Peggy Mullins." If anything, All Seasons' Supplemental Statement of Undisputed Facts is actually shorter; plus, it provides a reference to the record that was not previously included (indeed, did not exist) within All Seasons' original Statement of Undisputed Facts.
Third, any challenges to the way All Seasons represented the content of Ms. Mullins's affidavit is not an appropriate basis to strike All Seasons Supplemental Statement of Undisputed Facts. Such arguments should, instead, be presented in the context of opposing All Seasons' Motion for Summary Judgment and/or a separate statement of disputed facts.
For these reasons, Plaintiffs' Motion to Strike All Season Defendants' Supplemental Statement of Facts is denied.
II. Defendant Thomas A. Sarty's Motion to Strike (Docket No. 443)
Defendant Thomas A. Sarty filed his Motion for Summary Judgment on March 15, 2010 (Docket No. 403). On April 15, 2010, Plaintiffs opposed Sarty's Motion for Summary Judgment (Docket No. 437) and, in doing so, also filed a Statement of Facts in Opposition to Defendant Thomas Sarty's Motion for Summary Judgment (Docket No. 436). Plaintiffs' Statement of Facts in Opposition to Defendant Thomas Sarty's Motion for Summary Judgment referenced 21 exhibits. Through his Motion to Strike, Sarty challenges the admissibility of 12 of those 21 exhibits, arguing:
Thus, exhibits 2, 3, 4, 5, 6, 7, 8, 10, 12, 15, 18, and 21, respectively, should be stricken from the record on the basis that such exhibits lack the necessary authentication and the affiant (counsel for Plaintiffs) does not represent a 'person through whom the exhibits could be admitted into evidence.'
See Mot. to Strike, p. 2 (Docket No. 443) (citations omitted). Each of these challenged exhibits will ...