JOSEPH V. CALDARERA, Plaintiff,
TENNESSEE LOG & TIMBER HOMES, INC. and TIMBER TECH, INC., Defendants.
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Defendant Timber Tech, Inc.'s ("Timber Tech") Motion for Judgment on the Pleadings  and Motion to Strike Affidavit of Burton Webb . Having considered the submissions of the parties, the record and the applicable law, the Court finds that both motions should be granted in part and denied in part.
In January of 2010, Plaintiff Joseph V. Caldarera contracted with Tennessee Log & Timber Homes, Inc. ("Tennessee Log") to supply materials, including wooden logs, for the construction of a log home that he was building near Woodville, Mississippi. Tennessee Log, pursuant to an existing contract with Timber Tech,  subsequently ordered certain logs from Timber Tech to be used in the construction of Plaintiff's home. Tennessee Log provided Timber Tech with design specifications for the logs regarding their specific lengths and corner configurations. After Timber Tech processed and fabricated the logs, Tennessee Log arranged for their transportation from Timber Tech's facility to the Plaintiff's home site. Plaintiff contends that he discovered the logs had been improperly cut and could not be used when they arrived on site.
On May 10, 2012, Plaintiff filed suit against Tennessee Log in this Court. ( See Compl. .) Subject matter jurisdiction is predicated on diversity of citizenship between the Plaintiff (a citizen of Louisiana) and Tennessee Log (a citizen of Tennessee) under Title 28 U.S.C. § 1332. On July 20, 2012, the Plaintiff filed his Supplemental, Amended and Restated Complaint ("Amended Complaint"), adding Timber Tech (also a citizen of Tennessee) to the litigation. ( See Am. Compl. .) The Amended Complaint alleges that "Tennessee Log and Timber Tech breached their contract and/or were negligent in failing to properly cut the logs in question." (Am. Compl.  at ¶ 9.) Plaintiff seeks various damages, including the cost of the logs and the cost to construct the foundation of the proposed log home, as relief.
On July 15, 2013, Timber Tech filed its Motion for Judgment on the Pleadings . Despite its title, this motion seeks summary judgment pursuant to Federal Rule of Civil Procedure 56. On September 17, 2013, Timber Tech filed its Motion to Strike Affidavit of Burton Webb ("Motion to Strike") . Burton Webb's affidavit is an exhibit to Plaintiff's Opposition to Motion for Summary Judgment . ( See Webb. Aff. [35-2].) The subject motions have been fully briefed and the Court is ready to rule.
I. Motion to Strike 
Burton Webb is the owner of Tennessee Log. ( See Webb Aff. [35-2] at ¶ 2.) Webb's affidavit states, inter alia, that the Plaintiff sent him pictures of the logs and he "could tell from the pictures the log corners were improperly cut...." (Webb Aff. [35-2] at ¶¶ 9-10.) The Plaintiff relies on Webb's affidavit in support of his argument that Timber Tech "breached its duty to properly cut the logs" and summary judgment for Timber Tech should be denied. (Opp. to Mot. for SJ  at pp. 2, 4.) Timber Tech requests that Webb's affidavit be stricken on the grounds addressed below.
Timber Tech argues that Webb's affidavit is untimely because it references documents, photos, conversations and communications that were not produced prior to the discovery deadline of July 1, 2013. Timber Tech also contends that the affidavit is time-barred because it was submitted subsequent to the due date for Plaintiff's opposition to the motion for summary judgment. The Court finds that neither of these arguments warrants the striking of Webb's affidavit.
The Plaintiff asserts that all of the documents referenced in Webb's affidavit were produced prior to the discovery deadline except for the agreement between Timber Tech and Tennessee Log, which was not in his possession. Also of note, Webb was identified in Plaintiff's interrogatory responses as an individual having knowledge of the allegations of the Complaint; as someone the Plaintiff communicated with regarding the logs being improperly cut; and, as an individual who supported Plaintiff's allegations that the logs were improperly cut. ( See Doc. No. [35-1 at ECF pp. 3, 5, 6].) Plaintiff's interrogatory responses were served prior to the close of discovery. Thus, Timber Tech was provided with sufficient information regarding Webb prior to the discovery deadline for it to reasonably anticipate that he might have something negative to say about the manner in which the subject logs were cut. Furthermore, it does not appear that the Plaintiff engaged in any conduct that precluded Timber Tech from going to Webb or Tennessee Log's counsel for information regarding any communications between Webb and any other individual potentially having knowledge of relevant facts.
Plaintiff's Opposition to Motion for Summary Judgment  was not timely filed under the deadline established by the Court's Local Uniform Civil Rules. However, it was filed within the subsequent deadline set by the Court for the Plaintiff to "offer justification for the denial of the [summary judgment] motion...." (Order to Show Cause .) Further, the Court has excused Plaintiff's delay in opposing summary judgment pursuant to its "broad discretion to grant or deny an extension" under the Federal Rules of Civil Procedure. ( See Order .) Since the Webb Affidavit [35-2] was filed in conjunction with Plaintiff's opposition, no time bar precludes its consideration.
B. Federal Rule of Civil Procedure 56(c)(4)
Timber Tech asserts that the Webb Affidavit [35-2] should be stricken because it "contains inadmissible hearsay, unreliable statements, and statements lacking personal knowledge." (Mem. in Supp. of Mot. to Strike  at p. 3.) This argument implicates Federal Rule of Civil Procedure 56(c)(4), which provides that an affidavit "used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." It is well-recognized that a motion to strike should point out the objectionable portions of an affidavit, and that a motion solely raising a general challenge to an affidavit is ineffective. See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (3d ed.) (citations omitted). Moreover, the Fifth Circuit has held that "the district court should disregard only those portions of an affidavit that are inadequate and consider the rest." Akin v. Q-L Invs., Inc., 959 F.2d 521, 531 (5th Cir. 1992) (citing Lee v. Nat'l Life Assurance Co., 632 F.2d 524, 529 (5th Cir. 1980)). Thus, the Court will only consider Timber Tech's specific objections to paragraphs 9 and 10 of Burton Webb's affidavit, and disregard its generalized argument that the affidavit be stricken as a whole.
Paragraphs 9 and 10 of the Webb Affidavit [35-2] state as follows:
9. As the logs were being installed, I received calls from Mr. Caldarera and the foreman of the crew that was to install them telling me the log corners were improperly cut, and Mr. Caldarera sent me photos of such.
10. I could tell from the pictures the log corners were improperly cut, a fact verified by the installation crew's chief with whom I had worked with for years before and trusted.
Timber Tech objects to these statements on the bases that they contain hearsay and are not made on Burton Webb's personal knowledge.
As to the issue of hearsay, Plaintiff counters that Webb's descriptions of communications with others are not offered to prove the truth of the matter asserted, but rather, "are included to explain how Mr. Webb first learned of the problems with the logs Timber Tech cut and supplied. As such, they are not hearsay." (Opp. to Mot. to Strike  at pp. 3-4.) The Court finds Plaintiff's position well taken as to paragraph 9, but not paragraph 10. Out of court statements offered for context or background purposes fall outside the scope of inadmissible hearsay. See, e.g., United States v. Neuman, 406 Fed.Appx. 847, 850 (5th Cir. 2010) (affirming the trial court's admission of e-mails that provided context for subsequent evidence); United States v. Dunigan, 555 F.3d 501, 507 (5th Cir. 2009) ("Out-of-court statements offered for another purpose, e.g., providing background information to explain the actions of investigators, are not hearsay."); United States v. Cheramie, 51 F.3d 538, 541 (5th Cir. 1995) (finding no error in the district court's admission of an audio tape since the court instructed the jury to consider a witness's statements on the tape only as providing context for the defendant's statements).
The communications attributed to the Plaintiff and the crew foreman in paragraph 9 of Webb's affidavit explain why Webb viewed pictures of the logs, as described in paragraph 10. However, Webb's reference to the crew foreman's verification in paragraph 10 can only be viewed by the Court as an impermissible attempt at proving, i.e., verifying, the truth of the matter asserted-that the logs were improperly cut. Therefore, the portion of paragraph 10 beginning with ...