DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S INADMISSIBLE

SUMMARY JUDGMENT EVIDENCE AND BRIEF IN SUPPORT Page 1 of 7

FP 49984068.2

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JASON WALTERS,

Plaintiff,

v.

EXEL, INC. D/B/A DHL SUPPLY CHAIN,

Defendant.

§

§

§

§

§

§

§

§

§

CIVIL ACTION NO. 3:22-cv-01840-K

DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S INADMISSIBLE

SUMMARY JUDGMENT EVIDENCE AND BRIEF IN SUPPORT

Defendant Exel Inc. d/b/a DHL Supply Chain (“Defendant” or “Exel”) files this Motion to 

Strike (“Motion to Strike”) improper and inadmissible evidence submitted by Plaintiff Jason 

Walter’s (“Plaintiff”) in connection with his opposition to Defendant’s Motion for Summary 

Judgment [Dkt. 59] (“Plaintiff’s Opposition”). In support thereof, Defendant would respectfully 

show the Court as follows:

I. FACTUAL BACKGROUND AND SUMMARY

Rather than by presentation of proper evidence and meaningful argument, Plaintiff’s 

Opposition attempts to explain away the validity of Defendant’s Motion for Summary Judgment 

and Brief in Support [Dkt. 56] (“Defendant’s MSJ”) by relying on conclusory remarks, 

unauthenticated documents, and pure speculation. However, none of this is admissible evidence 

that raises any genuine issues of material fact. Accordingly, the Court must strike this “nonevidence” and/or disregard it.

Case 3:22-cv-01840-K Document 61 Filed 03/19/24 Page 1 of 7 PageID 1145
DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S INADMISSIBLE

SUMMARY JUDGMENT EVIDENCE AND BRIEF IN SUPPORT Page 2 of 7

FP 49984068.2

II. ARGUMENTS AND AUTHORITIES

A. To Conclude that There Exists a Material Factual Dispute, There Must First Be 

Admissible Summary Judgment Evidence that Controverts the Movant’s 

Presentation of Core Facts.

“Rule 56 requires the adversary to set forth facts that would be admissible in evidence at 

trial. Material that is inadmissible will not be considered on a motion for summary judgment 

because it would not establish a genuine issue of material fact if offered at trial . . . .” Duplantis

v. Shell Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991). In support of a motion for summary 

judgment, a movant may cite pleadings, deposition testimony, interrogatory responses, and 

admissions on file, together with other firsthand information such as affidavits based on personal 

knowledge. FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Templet v. 

Hydrochem Inc., 367 F.3d 473, 485 (5th Cir. 2004). However, a party may not rely on inadmissible 

hearsay for summary judgment purposes. Cole v. Knowledge Learning Corp., 416 Fed. App’x. 

437, 442 (5th Cir. 2011). 

Here, in response to Defendant’s summary judgment evidence and authorities, Plaintiff 

offers little other than inadmissible evidence. As discussed in detail below, inadmissible statements 

and documents offered by Plaintiff must be stricken and cannot be considered by the Court in 

deciding whether to grant summary judgment herein.

B. Plaintiff’s APP 0011-0025 are Text Messages Containing Unauthenticated Hearsay

A document must be properly authenticated before it can be admissible evidence. See FED.

R. EVID. 901(a). RULE 901(a) requires some evidence which is sufficient to support a finding that 

the evidence in question is what its proponent claims it to be. United States v. Ceballos, 789 F.3d 

607, 618 (5th Cir. 2015) (citations and quotation marks omitted). “Testimony by a witness with 

knowledge of the item, the item’s own distinctive characteristics, and the circumstances of the 

item’s discovery may each suffice to authenticate evidence.” Ceballos, 789 F.3d at 618-19; see 

Case 3:22-cv-01840-K Document 61 Filed 03/19/24 Page 2 of 7 PageID 1146
DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S INADMISSIBLE

SUMMARY JUDGMENT EVIDENCE AND BRIEF IN SUPPORT Page 3 of 7

FP 49984068.2

also United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009). Where a proponent fails to 

properly authenticate an item under RULE 901(a), such failure provides a valid basis for excluding 

the item from evidence. See Bibolotti v. Am. Home Mortg. Servicing, Inc., No. 4:11-CV-472, at *6 

(E.D. Tex. May 15, 2013) (“In this case, Plaintiff has made no attempt to properly authenticate 

these documents, and thus, the Court finds they are of dubious evidentiary value, because they are 

unaccompanied by any extrinsic evidence of authenticity (such as an affidavit describing how the 

exhibits were put together)”) (citations and internal quotation marks omitted); Coughlin v. Capitol 

Cement Co., 571 F.2d 290, 307 (5th Cir. 1978) (affirming district court’s exclusion of a document 

that was not properly authenticated). Moreover, under RULE 801, a statement is hearsay if (1) it is 

not made by the declarant while testifying at the current trial or hearing; and (2) it is offered to 

prove the truth of the matter asserted in the statement. FED. R. EVID. 801(c).

Here, Plaintiff cites to Plaintiff’s APP 0011-0025 for the contention that, “Eartis Shaw was 

in charge of the employees, and made the decision as to whether run and [sic] extra shift or not.” 

Plaintiff’s Opposition at 5. However, the materials contained in Plaintiff’s Appendix at APP 0011-

0025 contain a variety of pieces of text messages that are unauthenticated hearsay and simply do 

not stand for the proposition Plaintiff asserts they support. See Watson v. Brennan, No. 3:20-CV181-G-BK, 2023 WL 425831, at *4 (N.D. Tex. Jan. 9, 2023) (Toliver, J.) (declining to consider 

plaintiff’s unauthenticated “text messages, emails, letters, timecards, photographs” as part of 

opposition to summary judgment), report and recommendation adopted, No. 3:20-CV-0181-GBK, 2023 WL 424775 (N.D. Tex. Jan. 26, 2023), aff’d, No. 23-10131, 2023 WL 6210753 (5th Cir. 

Sept. 25, 2023) .

In fact, Plaintiff conveniently disregards the deposition testimony of Mr. Shaw when 

questioned about these text messages and testified that he had no idea who several individuals

Case 3:22-cv-01840-K Document 61 Filed 03/19/24 Page 3 of 7 PageID 1147
DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S INADMISSIBLE

SUMMARY JUDGMENT EVIDENCE AND BRIEF IN SUPPORT Page 4 of 7

FP 49984068.2

were in the text messages. See Appendix in Support of Defendant’s Motion to Strike, APP 005-

006.

Plaintiff offers no evidence that supports a finding that Plaintiff’s APP 0011-0025 are what 

Plaintiff claims them to be. Plaintiff makes no attempt to properly authenticate the text messages 

and specifically excludes testimony from Ms. Shaw that states he does not even know who several 

individuals in the text messages are. And the text messages are from third-parties and therefore are 

inadmissible hearsay.

C. Plaintiff Relies on Plaintiff’s APP 135 for Conclusory Remarks and Pure Speculation 

Purported “facts” based only on conclusory allegations, self-serving testimony, and 

unsupported speculation are not competent summary judgment evidence, and the Court should not 

consider them. See Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 

137, 139–140 (5th Cir. 1996) (stating “unsubstantiated assertions are not competent summary 

judgment evidence”) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994); Douglass v. 

United Services Automobile Association, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) 

(“[C]onclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy 

the nonmovant’s burden.”); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir.

1994) (An employee’s self-serving generalized testimony stating her subjective belief that 

discrimination occurred “is simply insufficient to support a jury verdict in plaintiff's favor.”); Krim 

v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir. 1993) (“Summary judgment, to be sure, 

may be appropriate... if the nonmoving party rests merely upon conclusory allegations, improbable 

inferences, and unsupported speculation.”). Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 

1994) (en banc) (per curiam).

Case 3:22-cv-01840-K Document 61 Filed 03/19/24 Page 4 of 7 PageID 1148
DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S INADMISSIBLE

SUMMARY JUDGMENT EVIDENCE AND BRIEF IN SUPPORT Page 5 of 7

FP 49984068.2

Here, Plaintiff alleges that he was replaced by a 24-year old employee and that there was a 

pattern of age discrimination as to several employees over the age of 40 being terminated. See

Plaintiff’s Opposition at 23-24. For these assertions, Plaintiff relies on Plaintiff’s APP 135, an 

unauthenticated spreadsheet from which he then draws rank speculation and conclusory remarks

that he includes in his declaration. See Plaintiff’s APP 111-115, at ¶¶32, 33. The spreadsheet is not 

dated as to when it was created, does not state the meaning behind the column entitled “Adjusted 

Service Date,” and does not provide any reason associated with the termination date (e.g. whether 

the termination was voluntary or not). 

Plaintiff asserts that the document reflects John Ilegwu Oloh, age 24, replaced Plaintiff 

because he had an adjusted service date of March 16, 2022, and because both employees were 

supervised by Eartis Shaw. See Plaintiff’s Opposition at 23. Instead of citing to any deposition 

testimony of a Defendant representative regarding the materials cited by Plaintiff’s APP 135, 

Plaintiff instead relies on his own incorrect and unsupported conclusions. In contrast, Defendant 

specifically cited to deposition and declaration testimony that a 41-year-old employee filled 

Plaintiff’s role. See Defendant’s APP 073, Lines 9-17; APP 074, Lines 6-18; APP 126, Lines 5-9; 

APP 015, Line 25; APP 016, Lines 1-6, APP 186, ¶¶ 8-9.

Similarly, Plaintiff asserts that there is a “pattern” of age discrimination, citing to three 

individuals from the spreadsheet, ages 63, 65, and 46 who had a termination date. See Plaintiff’s 

Opposition at 23; Plaintiff’s APP at 135. But neither Plaintiff’s Opposition, nor his Appendix 

provides the Court with any basis for his knowledge of the circumstances in the employees’ 

separation, whether they left on their own accord, or otherwise. Yet, Plaintiff brazenly speculates 

and concludes that they were terminated and was reflective of a pattern of discrimination by 

Case 3:22-cv-01840-K Document 61 Filed 03/19/24 Page 5 of 7 PageID 1149
DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S INADMISSIBLE

SUMMARY JUDGMENT EVIDENCE AND BRIEF IN SUPPORT Page 6 of 7

FP 49984068.2

Defendant. Plaintiff even acknowledges himself that APP 135 does not accurately reflect his age 

when he was terminated. Plaintiff’s Opposition at 24.

Accordingly, Plaintiff’s assertions based on Plaintiff’s APP 135 are at best misplaced, at 

worst, disingenuous. Either way, the evidence and the assertions based upon it are inadmissible 

and should be struck by the Court.

D. Plaintiff’s APP 119 is Inadmissible Hearsay

As stated above, under RULE 801, a statement is hearsay if (1) it is not made by the 

declarant while testifying at the current trial or hearing; and (2) it is offered to prove the truth of 

the matter asserted in the statement. FED. R. EVID. 801(c). Plaintiff cites in his declaration to a text 

exchange with Tammy Williams, where Ms. Williams purportedly states, “She is one of the biggest 

racists I have ever worked with.” See Plaintiff’s Opposition at 29; Plaintiff’s APP at 111, ¶ 47; id 

at APP 119. Ms. Williams purportedly is referring to “Mickey,” but the cited text messages lack 

any further context or first-hand testimony from Ms. Williams. Moreover, the “Mickey” referred 

to is presumably Mickey Moza, who is a male. Accordingly, it is unclear who the “she” is referring 

to in the text message. Moreover, Plaintiff asserts no race discrimination claim. Thus, the materials 

constitute nothing more than inadmissible hearsay and its probative value is substantially 

outweighed by unfair prejudice and confusing the issues. FED. R. EVID. 403.

III. CONCLUSION AND PRAYER

For the forgoing reasons, Defendant prays that the Court grants its Motion to Strike,

excludes all portions of the incompetent evidence identified therein, and disregard all arguments 

set forth in Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment that rely upon 

incompetent, inadmissible and/or otherwise improper evidence.

Case 3:22-cv-01840-K Document 61 Filed 03/19/24 Page 6 of 7 PageID 1150
DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S INADMISSIBLE

SUMMARY JUDGMENT EVIDENCE AND BRIEF IN SUPPORT Page 7 of 7

FP 49984068.2

Respectfully submitted,

/s/ Annie Lau

Annie Lau

Texas Bar No. 24057723

FISHER & PHILLIPS LLP

500 N. Akard Street, Suite 3550

Dallas, Texas 75201

Telephone: (214) 220-9100

Facsimile: (214) 220-9122

alau@fisherphillips.com

COUNSEL FOR DEFENDANT

EXEL INC. d/b/a DHL SUPPLY CHAIN

CERTIFICATE OF CONFERENCE

In accordance with Local Rule 7.1(a), I certify that I attempted to confer with Plaintiff’s 

counsel regarding the relief sought by this Motion on March 18, 2024, via phone and email. 

Plaintiff’s counsel indicated that his client is opposed to the relief sought by this Motion.

Dated: March 19, 2024

/s/ Annie Lau

Annie Lau

CERTIFICATE OF SERVICE

On the 19th day of March, 2024, I filed the foregoing document with the Clerk of Court for 

the United States District Court, Northern District of Texas, using the Court’s Electronic Case 

Filing system. I hereby certify that I have served the document on all counsel of record by a manner 

authorized by FED. R. CIV. P. 5 (b)(2).

Bob Whitehurst 

5380 Old Bullard Road, Suite 600, #363

Tyler, TX 75703

whitehurstlawfirm@yahoo.com 

Donald E. Uloth

LAW OFFICE OF DONALD E. ULOTH

18208 Preston Road, Suite D-9 #261

Dallas, TX 75252

don.uloth@uloth.pro

/s/ Annie Lau

Annie Lau

Case 3:22-cv-01840-K Document 61 Filed 03/19/24 Page 7 of 7 PageID 1151