United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
POWDRELL'S MOTION TO STRIKE EXHIBIT TO PLAINTIFF'S
RESPONSE TO POWDRELL'S MOTION FOR SUMMARY
matter is before the Court on Defendant Powdrell's Motion
to Strike Exhibit to Plaintiff's Response to
Powdrell's Motion for Summary Judgment and Memorandum in
Support Thereof (Motion to Strike), filed July 20, 2015.
(Doc. 55). Plaintiff Alfonso Hernandez filed his response on
August 6, 2015, and Defendant Akeem Powdrell filed a reply on
August 14, 2015. (Docs. 60 and 63). After considering the
submissions and arguments of the parties, the applicable law,
and the record, the Court denies the Motion to Strike.
Powdrell filed a Motion for Summary Judgment on June 19,
2015. (Doc. 49). Plaintiff filed a Response on July 6, 2015,
that included an “Exhibit A” that is the subject
of this Motion to Strike. (Docs. 52 and 52-1). Exhibit A is
an Interoffice Memorandum with a cover page labeled,
“Transit Department Security Section.” (Doc.
52-1) at 2. The cover page includes an acknowledgment to be
signed and dated after reading and reviewing standard
operating procedures guidelines. Id. The cover page
is followed by five pages of standard operating procedures
titled “Legal Issues.” Id. at 3-7. The
document was undated and unsigned. Id. at 2.
Powdrell alleges that Plaintiff seeks to submit Exhibit A for
its truth. (Doc. 55) at ¶ 9. Defendant Powdrell,
however, claims Exhibit A is unsworn, uncertified,
inadmissible and irrelevant, contrary to Fed.R.Civ.P. 56, and
should not be considered by the Court in its summary judgment
analysis. (Doc. 55) at ¶¶ 3, 6 (citing Fed.R.Civ.P.
56). Moreover, Defendant Powdrell specifically argues that
Exhibit A is irrelevant because it pertains to a
citizen's arrest and Defendant Powdrell made no such
arrest, as Plaintiff's own testimony demonstrates.
Id. at ¶ 12; (Doc. 55) at 6, citing Hernandez
Dep. 170:9, 24.
argues that he offers Exhibit A to refute Defendant
Powdrell's claim in his Motion for Summary Judgment that
he was not empowered to make arrests. (Doc. 60) at 2.
Plaintiff admits that Exhibit A has not been sworn or
attested to, but he claims the parties' protracted
discovery dispute made it impossible for Plaintiff to obtain
information necessary to properly verify the Exhibit.
Id. at 2-3. Plaintiff provides a lengthy, though
largely irrelevant, explanation of his frustrations in
obtaining discovery, and requests additional time under Rule
56(d) to discover admissible evidence in order to properly
respond to Defendant Powdrell's Motion for Summary
Judgment. (Doc. 60-1) at 2. To forestall a ruling on summary
judgment due to a need for discovery, a party must move for
postponement under Rule 56(d) and “file an affidavit
that explains why facts precluding summary judgment cannot be
presented.” Trask v. Franco, 446 F.3d 1036,
1042 (10th Cir. 2006) (brackets and internal quotation marks
omitted). Plaintiff must state with specificity in an
affidavit how additional time would enable him to meet his
burden opposing summary judgment, and it is not enough to
merely state that discovery is incomplete or that necessary
facts are unavailable. Pasternak v. Lear Petroleum Expl,
Inc., 790 F.2d 828, 833 (10th Cir. 1986). In this case,
having reviewed Plaintiffs affidavit, the Court finds that
additional discovery is unnecessary to decide the Motion for
also argues several legal issues unrelated to the Motion to
Strike, including whether Defendant Powdrell had the
authority to make an arrest and whether Defendant Powdrell
actually arrested Plaintiff. (Doc. 60) at 2-4. The question
this Motion to Strike poses to the Court is whether the Court
should consider Exhibit A in deciding Defendant
Powdrell's Motion for Summary Judgment. (Docs. 55, 60 and
63). After reviewing all the briefing for the Motion for
Summary Judgment, the Court finds that Exhibit A is
irrelevant to its summary judgment assessment. Defendant
Powdrell's Motion for Summary Judgment boils down to two
questions: (1) is Defendant Powdrell entitled to qualified
immunity on Plaintiffs Section 1983 claims of excessive force
and false arrest, and (2) does Defendant Powdrell fit the law
enforcement officer waiver under the New Mexico Tort Claims
Act (NMTCA), NMSA 1978, § 41-4-1 et seq. (Repl. Pamp.
1996). Exhibit A, and its implications about Defendant
Powdrell's authority, or lack thereof, to make arrests,
is immaterial to the Court's analysis of either of these
questions, as explained fully in the Court's opinion on
Defendant Powdrell's Motion for Summary Judgment.
ORDERED that Defendant Powdrell's Motion to Strike (Doc.
55) is denied.
 As previously explained in the
Court's opinion deciding Plaintiff's Motion to Strike
(Doc. 119), “[o]nly material included in a
pleading may be the subject of a motion to strike,
and courts have been unwilling to construe the term
broadly.” Estate of Anderson v. Denny's
Inc., 291 F.R.D. 622, 630 (D.N.M. 2013) (internal
citation and quotation omitted) (emphasis added). “The
Federal Rules of Civil Procedure define pleadings as a
complaint or third-party complaint; an answer to a complaint,
a third-party complaint, a counterclaim, or a
crossclaim…” Ysais v. N.M. Judicial Standard
Comm'n, 616 F.Supp.2d 1176, 1184 (D.N.M. 2009)
(internal citation and quotation omitted).
“Motions…may not be attacked by the
motion to ...