Free Response - District Court of Federal Claims - federal

Case 1:07-cv-00143-MMS

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Filed 02/29/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SKANSKA USA BUILDING, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-143 (Judge Firestone)

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO STRIKE Defendant hereby respectfully responds to plaintiff's motion to strike the declaration of Philip B. Crawford. For the reasons set forth in detail below, plaintiff's motion to strike should be denied. Plaintiff's counsel has filed a motion for a Rule 56(f) continuance and a motion to strike based upon the Government's use in its summary judgment motion of the declaration of Phillip Crawford, a witness that he claims was "sprung" upon him as the result of the Government's purported failure to comply with Rule 26(a)(1). Plaintiff also seeks that the declaration of Mr. Crawford be stricken on grounds of "hearsay" and "lack of foundation." These arguments will be addressed in turn. None has merit. First, plaintiff offers no authority in support of the proposition that a purported violation of Rule 26(a)(1) constitutes a ground for striking an affidavit attached to a motion for summary judgment. Even if it were, and even putting to one side the fact that the situation of which plaintiff's counsel complains is wholly of his own making for all of the reasons set forth in our response to plaintiff's Rule 56(f) motion, the fact that the Government is, in fact, willing to produce Mr. Crawford for deposition and to allow for a continuance of these proceedings should obviate any need to strike Mr. Crawford's declaration.

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Plaintiff next argues that paragraphs 1 and 6 of Mr. Crawford's declaration must be stricken on the basis of "hearsay" because plaintiff's counsel believes for some reason that the Army's Environmental Compliance Branch "is a public agency that is distinct and separate from Army Public Works" and that Mr. Crawford does not appear to work directly for Army Public Works. Even if these statements did not reflect a complete misunderstanding of the relationship

between the Environmental Compliance Branch and Army Public Works,1 neither of plaintiff's counsel's assertions, if true, would transform the paragraphs in question into excludable hearsay. Rule 56 specifically contemplates the use of "[s]upporting and opposing affidavits" on summary judgment. See ROFC 56(e). Such affidavits "shall be made on personal knowledge, set forth such facts as would be admissible evidence , and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Id. Mr. Crawford's declaration meets all of these criteria, particularly with respect to the paragraphs in question. In paragraph 1, Mr. Crawford states that he is making the representations in his declaration "based upon my personal knowledge as Chief of the Army's Environmental Compliance Branch, a position which qualifies me to speak on behalf of Public Works," and in paragraph 6, he states that "[t]he reuse of the project soils at Landfill #2 was desired by Public Works because the project soils added a cap to the landfill, and filled in a depressed area within the landfill." A79. Mr. Crawford further explains in paragraph 2 that he was "personally involved in the decision to place project soils . . . at Landfill #2," and in paragraph 3 that "I concluded on behalf of Public Works that, because the lead contained in project soils . . . was minimal, those soils constituted clean fill." Id. Because all of the related facts are unequivocally within the realm of Mr. Crawford's personal Actually, the Army's Environmental Compliance Branch, is part of the Environmental and Natural Resources Division, Public Works Directorate. 2
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knowledge, there is no reason to strike his affidavit and prevent its consideration at the summary judgment stage. Plaintiff's claims that Mr. Crawford's declaration should be stricken for lack of foundation are even more misplaced. With respect to paragraphs 1, 4 and 5, plaintiff reiterates its unsupported claim that Mr. Crawford is not authorized to speak on behalf of Public Works, and goes on to complain that Mr. Crawford provides no standard or qualifications to define what is clean fill, and that the affidavit should be stricken as "self-serving." These arguments all go to the weight that plaintiff believes should be accorded to the affidavit, and have absolutely nothing to do with the affidavit's admissibility or use at the summary judgment stage. Accordingly, there is no reason to strike any of the paragraphs in question. It also bears noting that plaintiff would gain no ground in this litigation by virtue of the Court's striking of Mr. Crawford's declaration. Indeed, Mr. Crawford's declaration merely reiterates the conclusion that Mr. Crawford explicitly reached in April 2004--and, no less, in a document included in the appendix to the defendant's motion for summary judgment--that the project soils at issue in this litigation were "minimally contaminated with traces of lead paint in paint chip form. It is, for all intents and purposes, clean fill." A33. Moreover, there are other materials in the appendix that demonstrate clearly that Mr. Crawford was the individual who directed the Army's Public Works Solid Waste Program Manager to find a use for the project soils. See A31-32. Plaintiff's motion to strike, therefore, is not only baseless, but pointless as well. For the reasons set forth in detail above, we respectfully request that plaintiff's motion to strike be denied.

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Respectfully submitted, JEFFREY S. BUCKHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director

Martin F. Hockey, Jr. MARTIN F. HOCKEY, JR. Assistant Director

A. Bondurant Eley A. BONDURANT ELEY Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Classification Unit, 8th Floor Washington, D.C. 20530 Tel: (202) 616-8254 Fax: (202) 514-8624 Attorneys for Defendant February 29, 2008

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CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of February, 2008, a copy of the foregoing "Defendant's Response to Plaintiff's Motion to Strike" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ A. Bondurant Eley