United States District Court, S.D. Mississippi, Southern Division
RICHARD K. ROGERS PLAINTIFF
MEDLINE INDUSTRIES, INC., AND JOHN DOES 1-5 DEFENDANTS
ORDER DENYING PLAINTIFF'S MOTION  TO STRIKE
DECLARATION OF KATIE HALBERG, PLAINTIFF'S MOTION  TO
STRIKE DECLARATION OF ANDREW BRIGGS, AND PLAINTIFF'S
MOTION  TO STRIKE DECLARATION OF MARK GALLARELLI
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT are three Motions: (1) Plaintiff's Motion 
to Strike Declaration of Katie Halberg; (2) Plaintiff's
Motion  to Strike Declaration of Andrew Briggs; and (3)
Plaintiff's Motion  to Strike Declaration of Mark
Gallarelli. The Court finds that these Motions should be
an employment discrimination case arising out of Plaintiff
Richard K. Rogers' (“Rogers” or
“Plaintiff”) employment with Medline Industries,
Inc. (“Medline” or “Defendant”).
Medline employed Rogers as a salesperson from 2002 until he
was terminated in 2016. Compl.  at 2. On or about January
28, 2017, Plaintiff filed a Charge of Discrimination [1-1]
with the Equal Employment Opportunity Commission
(“EEOC”) alleging that Medline discriminated
against him on the basis of his age when it terminated him.
On January 30, 2018, the EEOC provided Rogers with a Notice
of Right to Sue [1-2], and Rogers timely filed suit against
Medline Industries, Inc. and John Does 1-10, Compl.  at 1.
The Complaint  alleges that Medline unlawfully terminated
Rogers because of his age in violation of the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 623. Id. at 4.
16, 2018, Defendant filed a Motion  for Summary Judgment
and submitted three Declarations as exhibits in support: (1)
Exhibit “A” [55-1], Dec. of Katie Halberg; (2)
Exhibit “C” [55-3], Dec. of Andrew Briggs; and
(3) Exhibit “E” [55-5], Dec. of Mark Gallarelli.
Subsequently, on August 17, 2018, Plaintiff filed three
separate, two-page Motions   ,  seeking to strike
portions of each Declaration [55-1] [55-3] [55-5]. Plaintiff
argues that these portions amount to inadmissible hearsay or
legal conclusions which are not competent summary judgment
evidence. Pl.'s Mot.  Strike at 1; Pl.'s Mot.
 Strike at 1; Pl.'s Mot.  Strike at 1.
filed Responses    on August 31, 2018, arguing
that the statements Plaintiff seeks to strike are not hearsay
because they are not offered to prove the truth of the
matters asserted and they otherwise fall within an exception
to the hearsay rule. Def.'s Resp.  at 3-4; Def.'s
Resp.  at 3-4; Def.'s Resp.  at 3-4. Plaintiff
filed Replies   , on September 7, 2018, arguing
that because the statements he wishes to strike were made
without personal knowledge and contain hearsay, they are not
competent summary judgment evidence. Pl.'s Reply  at
2-3; Pl.'s Reply  at 2-3; Pl.'s Reply  at
Rogers does not state the basis for his Motions  
 to Strike, Federal Rule of Civil Procedure 12(f)
provides for striking pleadings. Rule 12(f) provides that
“[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f).
extent Plaintiff may be relying on Rule 12(f) as the basis
for his challenge, Rule 12(f) is not the proper method for
attacking the evidence Medline offers in support of its
Motion  for Summary Judgment. Rather, Rule 56 supplies the
proper vehicle for challenging the sufficiency of this
evidence. Rule 56(c)(2) provides that “[a] party may
object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56. Even considering
Plaintiff's Motions    to Strike as
objections pursuant to Rule 56,  they should be denied.
argues that the challenged portions of the Declarations
should be stricken because they contain inadmissible hearsay
statements upon which the Court cannot rely in resolving
Defendant's Motion  for Summary Judgment. However, at
the summary judgment stage, evidence relied upon need not be
presented in admissible form, but instead must be
“capable of being ‘presented in a form that would
be admissible in evidence.'” LSR Consulting,
LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th
Cir. 2016) (quoting Fed.R.Civ.P. 56(c)(2)). Medline
demonstrates in its Responses    that the
statements at issue in the Declarations are in fact capable
of being presented in an admissible form as evidence at
trial, see id., and Rogers has not disputed that the
material can be presented in such a form,  see Fed.
R. Civ. P. 56(c)(2); Pl.'s Reply  at 2-3; Pl.'s
Reply  at 2-3; Pl.'s Reply  at 2-3.
extent any of the statements to which Rogers objects are not
based on personal knowledge, are hearsay, and cannot be
presented in a form admissible in evidence, the Court will
not consider them, or any other evidence that is plainly
inadmissible, in resolving Defendant's Motion  for
the Court concludes that Plaintiff's Motions  
 should be denied.
IS, THEREFORE, ORDERED AND ADJUDGED that,
Plaintiff's Motion  to Strike ...