UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

LUIS MANUEL RODRIGUEZ, et al., 

Plaintiffs, 

v. 

IMPERIAL BRANDS PLC, et al., 

Defendants. 

Case No.: 1:20-cv-23287-DPG 

DEFENDANT IMPERIAL BRANDS PLC’S OPPOSITION TO MOTION TO 

STRIKE THE DECLARATION OF ANDREW RHYS DAVIES 

Defendant Imperial Brands plc (“Imperial”) submits this opposition to Plaintiffs’ Motion 

to Strike the Declaration of Andrew Rhys Davies [DE 41 (“Motion to Strike”)]. 

PRELIMINARY STATEMENT 

1. Plaintiffs seek to strike a declaration [DE 15-1 (“Declaration”)] filed in support of 

Imperial’s pending motion for a time-limited stay of this action on international comity grounds, 

to afford the European Commission time to decide Imperial’s application for authorization to 

defend this case. [DE 14 (“Stay Motion”)]. As interpreted by the European Commission, EU law 

required Imperial to file such an application prior to moving to dismiss this case. Id. ¶ 10. 

2. The Declaration informed the Court, based on the declarant’s personal knowledge, 

that promptly after being served in this action, Imperial filed with the European Commission an 

application for authorization to defend itself in this action. Declaration ¶¶ 1, 4-5. Plaintiffs now 

ask the Court to strike the Declaration, complaining that it violates the hearsay and best-evidence 

rules. 

3. The Motion to Strike should be denied, for four independently dispositive reasons. 

First, the Declaration is not a “pleading,” and therefore cannot be stricken under the only rule that 

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authorizes motions to strike. Second, the Motion to Strike is untimely, because it was filed only 

after Plaintiffs had responded to the Stay Motion and Declaration. Third, the hearsay and bestevidence rules are inapplicable to the Stay Motion. Fourth, even if those rules were applicable, 

Plaintiffs mistakenly invoke them here. The Declaration is not hearsay, and it does not violate the 

best-evidence rule because the declarant has personal knowledge of the facts contained in it. In 

any event, the Motion to Strike is futile because the Stay Motion should be granted even if the 

Court were to disregard the Declaration. Regardless of the Declaration, the record shows that if 

Imperial were to respond to the Complaint without securing authorization, it would be defying the 

European Commission and risking criminal exposure in the United Kingdom. 

ARGUMENT 

A. The Motion to Strike Should Be Denied Because It Is Procedurally Improper 

(i) The Court lacks authority to strike a declaration 

4. Plaintiffs identify no authority for striking a declaration filed in support of a motion. 

Motions to strike are governed by Federal Rule of Civil Procedure 12(f), and are limited to 

“pleadings” as defined by Federal Rule of Civil Procedure 7(a). Siegmund v. Xuelian, 12-62539-

cv, 2016 WL 1444582, at *4 (S.D. Fla. Apr. 11, 2016) (Gayles, J.) (declining to strike a motion), 

aff’d, 746 F. App’x 889, 891 n.2 (11th Cir. 2018). Declarations and affidavits are not pleadings. 

See Fed. R. Civ. P 7(a). Therefore, courts lack authority to strike them. Foliar Nutrients, Inc. v. 

Plant Food Sys., Inc., 6:13-cv-748ORL37KRS, 2014 WL 12625978, at *1 (M.D. Fla. July 14, 

2014) (denying motion to strike declaration); see also Polite v. Dougherty Cty. Sch. Sys., 314 F. 

App’x 180, 184 n.7 (11th Cir. 2008) (affirming denial of motion to strike affidavit); Silver Creek 

Farms, LLC v. Fullington, 16-80353-CIV, 2018 WL 1967133, at *1 (S.D. Fla. Feb. 15, 2018) 

(“[A] motion to strike that is directed at filings other than pleadings is improper.”). 

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 (ii) The Motion to Strike should be denied because it is untimely 

5. Even if a declaration were a pleading that could be stricken, Rule 12(f)(2) requires 

that a motion to strike be filed “before responding to the pleading.” Plaintiffs did not file their 

Motion to Strike until September 15, 2020, four days after they responded to Imperial’s Stay 

Motion, including the Declaration. [DE 39 at 2, 6]. A motion to strike should be denied when—as 

here—it is filed after a party has already responded to the pleading to be stricken. Tracfone 

Wireless, Inc. v. Unlimited PCS, Inc., 12-cv-20013-UU, 2012 WL 12996615, at *1 (S.D. Fla. Mar. 

14, 2012). 

6. Even though Plaintiffs first raised their evidentiary arguments in a September 5, 

2020 filing [DE 36 ¶ 4], Plaintiffs did not contact Imperial’s counsel to arrange a Local Rule 

7.1(a)(3) meet and confer on their Motion to Strike until Friday, September 11, 2020, i.e., the very 

last day to file that motion. Imperial’s counsel was not available until Monday, September 14, 

2020, and the meet and confer took place that day. Even if the Court were to forgive Plaintiffs’ 

tardiness in seeking a meet and confer, Plaintiffs’ September 11, 2020 opposition to the Stay 

Motion indicated that they understood their Motion to Strike would be due no later than September 

14, 2020, i.e., the day on which the meet and confer took place. [DE 39 at 6]. Inexplicably, 

Plaintiffs did not file the Motion to Strike until September 15, 2020. 

B. There Is No Basis for Plaintiffs’ Hearsay and Best-Evidence Objections to the 

Declaration 

(i) Plaintiffs’ evidentiary objections are inapplicable to the Stay Motion 

7. Plaintiffs assert hearsay and best-evidence-rule objections to the Declaration. As 

Imperial shows below, those evidentiary objections are ill-founded. Those evidentiary objections 

are also misplaced here because the Stay Motion presents a “preliminary matter to which the 

Federal Rules of Evidence do not apply.” Carasquero v. Intrepid Glob. Imaging 3D, Inc., 3:08-

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cv-241-J-34JRK, 2010 WL 11507477, at *8 n.15 (M.D. Fla. July 2, 2010). Plaintiffs rely 

exclusively on cases involving motions in limine to exclude evidence from jury trials,1 but unlike 

a jury, “‘[a] district judge can be trusted in general . . . to give evidence its proper weight without 

regard to the technical rules of evidence.’” U.S. Commodity Futures Trading Comm’n v. S. Tr. 

Metals, Inc., 14-22739-CIV-KING, 2016 WL 4055685, at *2 (S.D. Fla. July 19, 2016) (brackets 

and ellipses in original) (quoting Greycas, Inc. v. Proud, 826 F.2d 1560, 1568 (7th Cir. 1987)). 

8. Accordingly, a district court may, for example, rely on hearsay evidence in the 

context of a motion to remand, Cordova v. Sensa Prods., LLC, 11-cv-80835, 2011 WL 13160763, 

at *1 (S.D. Fla. Dec. 27, 2011), or a preliminary-injunction motion, Levi Strauss & Co. v. Sunrise 

Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995). No reason exists to impose stricter 

evidentiary standards on the Stay Motion. 

(ii) Plaintiffs’ hearsay and best-evidence-rule objections to the Declaration are 

also incorrect as a matter of law 

9. The Declaration affirms, based on the affiant’s personal knowledge, that, on August 

27, 2020, eight days after being served in this matter, Imperial filed with the European Commission 

an application for authorization to defend itself, pursuant to Article 5 of Council Regulation (EC) 

No. 2271/96 [DE 14-2]. Declaration ¶¶ 1, 4. The Declaration informed the Court that the 

application primarily seeks blanket authorization to defend this lawsuit. Id. ¶ 5. In the interests of 

candor, the Declaration also informed the Court that, to guard against the risk of a blanket denial, 

the application seeks, in the alternative, at a minimum, authorization in the first instance to file and 

litigate a motion to dismiss the Complaint. Id. 

1

 See Motion to Strike ¶ 9 (citing Indus. Eng’g & Dev., Inc. v. Static Control Components, 

Inc., 8:12-cv-691-T-24-MAP, 2014 WL 4983912, at *4-5, *8-9 (M.D. Fla. Oct. 6, 2014); Middleby 

Corp. v. Hussmann Corp., 90 C 2744, 1993 WL 151290, at *1 (N.D. Ill. May 7, 1993)). 

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10. Plaintiffs have no genuine basis to question the veracity of the Declaration. Nor do 

they have any genuine interest in having it stricken. As Imperial has shown in the context of the 

Stay Motion [DE 45 ¶ 8], the requested stay should be granted in the interests of international 

comity even if the Declaration were disregarded. Regardless of the Declaration, the record 

demonstrates that Imperial would be defying the European Commission and exposing itself to the 

risk of criminal liability if it moved to dismiss without authorization. A fortiori, the elimination of 

paragraph 5 of the Declaration—the only portion about which Plaintiffs appear to have a 

complaint, Motion to Strike ¶¶ 7, 9—would not undermine the Stay Motion. 

11. In any event, Plaintiffs’ hearsay objection is baseless, as the Federal Rules of Civil 

Procedure permit a motion to be supported by a declaration. See Fed. R. Civ. P. 43(c); 28 U.S.C. 

§ 1746. Here, the declarant has personal knowledge of the facts stated, Decl. ¶ 1, so could 

competently testify to the facts if required. Plaintiffs offer no support for their assertion that the 

Declaration was required to “explain the source of that knowledge,” Motion to Strike ¶ 7, but 

counsel explained during the meet and confer that the declarant—as the principal counsel 

responsible for this matter—supervised the preparation and filing of the application. 

12. Plaintiffs are equally mistaken with their “best evidence” rule objection. Motion to 

Strike ¶¶ 9-12. The best-evidence rule only requires the use of original documents “where the party 

presenting evidence seeks to prove the specific contents of a writing.” Telecom Tech. Servs. Inc. 

v. Rolm Co., 388 F.3d 820, 830 (11th Cir. 2004). It does not bar the use of testimonial evidence to 

show the occurrence of an event—here, that Imperial has sought authorization. Id. And the bestevidence rule does not “require production of a document simply because the document contains 

facts that are also testified to by a witness.” Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1543 (11th 

Cir. 1994). “While the document itself may provide more detailed evidence as to precisely what 

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[was] represented in writing, the best evidence rule does not preclude declaratory evidence on the 

matter.” Jackson v. Nat’l Credit Sys., Inc., 1:16-cv-01029-ODE-WEJ, 2017 WL 2903353, at *3 

n.9 (N.D. Ga. Feb. 27, 2017).2

13. Finally, there is no basis for Plaintiffs’ footnoted assertion, Motion to Strike ¶ 11 

n.1, that there is “no reason why” the Declaration was not filed with Imperial’s Stay Motion. 

Although Plaintiffs have articulated no genuine interest in reviewing the application for 

authorization, Imperial has legitimate reasons for not filing it publicly. Under Article 3 of 

Regulation 2271/96 [DE 14-2], the authorization process is confidential. Another federal court 

aptly noted that a party would “make hash” of a similar EU confidentiality provision by disclosing 

the document to its adversary in U.S. litigation. In re Qualcomm Antitrust Litig., 17-md-02773 

LHK (NC), 2018 WL 10731128, at *2, 4 (N.D. Cal. Mar. 26, 2018) (declining to order production 

absent “a particularized showing of need”); see also In re Rubber Chems. Antitrust Litig., 486 F. 

Supp. 2d 1078 (N.D. Cal. 2007) (denying on comity grounds motion to compel disclosure of 

defendant’s communications with the European Commission). No doubt, Plaintiffs would be 

pleased if public disclosure of Imperial’s application undermined Imperial’s request, but Imperial 

will not risk that outcome by disrespecting the confidentiality of the process. Moreover, under 

Article 5 of Regulation 2271/96 [DE 14-2], and as reflected in Section 6 of the official EU 

application form [DE 45-2], an applicant for authorization must disclose the “serious damage” it 

would suffer if not permitted to defend itself. Imperial has legitimate interests in not disclosing 

2

 See also Indus. Eng’g & Dev., Inc., 2014 WL 4983912, at *5 (“‘[I]f a witness’s testimony 

is based on his first-hand knowledge of an event as opposed to his knowledge of the document, 

however, then [the best-evidence rule] does not apply.’”) (quoting Waterloo Furniture 

Components, Ltd. v. Haworth, Inc., 467 F.3d 641, 648-49 (7th Cir. 2006)); Exemar v. Urban 

League of Greater Miami, Inc., 585 F. Supp. 2d 1377, 1382 (S.D. Fla. 2008) (best-evidence rule 

“does not apply where a witness’s testimony is based on his first-hand knowledge of an event as 

opposed to his knowledge of the document”). 

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such information to its adversaries, and, as a public company, legitimate interests in not disclosing 

such nonpublic information more broadly. 

14. Nevertheless, if the Court believes that it would be helpful to review the application, 

Imperial will voluntarily make it available for in camera review. 

WHEREFORE, Imperial respectfully requests that the Court deny Plaintiffs’ Motion to 

Strike. 

Dated: September 22, 2020 

Miami, Florida 

 Respectfully submitted,

/s/ Mark F. Raymond

NELSON MULLINS BROAD AND CASSEL 

Mark F. Raymond 

Mark.Raymond@nelsonmullins.com 

Jonathan Etra 

Jonathan.Etra@nelsonmullins.com 

2 South Biscayne Blvd., 21st Floor 

Miami, FL 33131 

Telephone: 305-373-9400 

 ALLEN & OVERY LLP 

Andrew Rhys Davies (admitted pro hac vice) 

andrewrhys.davies@allenovery.com 

Justin L. Ormand (admitted pro hac vice) 

justin.ormand@allenovery.com 

1221 Avenue of the Americas 

New York, NY 10020 

Telephone: 212-610-6300 

 Attorneys for Defendant Imperial Brands plc 

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