The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
Pending before the Court in the above-entitled matter are the Defendants' Motions for Reconsideration and related Motions. The parties have fully briefed the Motions and the matters are ripe for the Court's review. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motions shall be decided on the record before this Court without oral argument.
The instant Motions ask the Court to reconsider its prior Order adopting in part the Report and Recommendation (Report) of Magistrate Judge Ronald E. Bush issued on February 17, 2012. (Dkt. 198, 210.) The basis for the Motions centers around the unsigned Declaration of Michael Miller (Miller Declaration) which was filed as an attachment to the Affidavit of Plaintiffs' Counsel. (Dkt. 118-2, Aff. Huntley.) The Defendants contend the Plaintiffs incorporated the unsigned Miller Declaration into their Third Amended Complaint (TAC) filed on April 21, 2011. The Defendants further assert that the Plaintiffs relied heavily on the unsigned Miller Declaration in their opposition to the Motion to Dismiss both in writing and orally at the hearing before Magistrate Judge Bush. (Dkt. 227 at 6-7) (Dkt. 253.) It now appears there was also a signed Affidavit of Michael Miller (Miller Affidavit) which, the Defendants argue, is substantially different and the existence of which Plaintiffs failed to disclose to the Court and counsel. (Dkt. 227, 253.) The Defendants assert the failure to disclose the existence of a materially different signed Affidavit warrant reconsideration of the Court's prior Order which was made based upon the representations made in the unsigned Declaration. In response, Plaintiffs dispute that there is any significant difference between the two documents and maintain they did not improperly withhold the information from the Court. (Dkt. 237, 271.) Cushman & Wakefield has also filed a related Motion to Strike and Motion for Leave to File Supplemental Brief. The Court takes up these Motions as follows.
Cushman & Wakefield have filed a Motion to strike certain portions of the Declarations of Douglas Haney (Dkt. 238) and Christopher J. Conant (Dkt. 237-2) which were submitted by Plaintiffs in their opposition to the Motion for Reconsideration. (Dkt. 241.) Generally, the Motion asserts that certain statements contained in these Declarations: lack personal knowledge; are speculative, argumentative, conclusions or lay opinions, and lack foundation; are irrelevant; and/or are hearsay. Plaintiffs oppose the Motion to Strike as procedurally improper and asserts the evidentiary objections made therein are in error. (Dkt. 251.)
In ruling on the Motion for Reconsideration, neither the Haney nor Conant Declaration impacted the Court's ruling. As such, the Motion to Strike is Moot as it relates to the Motions ruled upon in this Order. To the extent those Declarations may be relevant to any matters pending before Magistrate Judge Bush, this Court renders no opinion and makes no ruling either way.
2. Motion for Leave to File Supplemental Brief
Cushman & Wakefield filed a Motion for Leave to File a Supplemental Brief and Motion to Seal the Supplemental Brief. The proposed supplemental brief is necessary, Cushman & Wakefield argues, in light of the fact that Mr. Miller was deposed by the parties after its Motion for Reconsideration was filed. Much of Mr. Miller's testimony during that deposition, Cushman & Wakefield maintain, relates to the statements made in his signed Affidavit and those attributed to him in the unsigned Declaration both of which are at the heart of the Motion to Reconsider. (Dkt. 247.) The proposed supplemental brief is filed as Docket Number 244. (Dkt. 244.)*fn1
Plaintiffs oppose the request to file a supplemental brief maintaining there is no difference between the unsigned Miller Declaration and signed Miller Affidavit and his deposition testimony only confirms that Mr. Miller's statements in the unsigned Declaration were true. (Dkt. 270.) Plaintiffs, however, do not object to the Court reviewing Mr. Miller's deposition. In the event the Court allows the supplemental briefing, Plaintiffs asks for leave to file their own response to the same. (Dkt. 270.)
The Court has considered the parties' arguments on this point in light of the record and concludes that further briefing on the Motion for Reconsideration is unnecessary. The parties' arguments are well known to the Court concerning the matters surrounding Mr. Miller. Supplemental briefing would not further assist the Court and the Motion is denied. However, since there is no objection, the Court will review the transcript of Mr. Miller's deposition in considering the Motion for Reconsideration.
3. Motion for Reconsideration by Cushman ...