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The Honorable Daniel L. Hovland, Chief Judge, United States District Court

for the District of North Dakota, adopting the report and recommendations of the

Honorable Charles S. Miller, Jr., United States Magistrate Judge for the District of

North Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2186

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Anthony James Moore, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

Fargo Police Department, *

* [UNPUBLISHED]

Appellee. *

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Submitted: October 6, 2008

Filed: October 27, 2008

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Before MELLOY, COLLOTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Anthony James Moore appeals the district court’s1

 adverse grant of summary

judgment in his 42 U.S.C. § 1983 action. After careful de novo review, viewing the

evidence and all favorable inferences from it in a light most favorable to Moore, see

Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006), we conclude that the grant

of summary judgment was proper. We also conclude that the district court did not
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abuse its discretion in denying Moore’s late-tendered motion for leave to amend his

complaint. See Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).

Finally, we grant appellee’s request to file an over-length addendum, but we deny any

request by appellee for sanctions. 

The dissenting opinion advances an argument not raised by Moore, see JCB,

Inc. v. Union Planters Bank, NA, 539 F.3d 862, 875 n.8 (8th Cir. 2008) (“To be

reviewable, an issue must be presented in the brief with some specificity”), and we see

no extraordinary reason to reject the sufficiency of counsel’s affidavit on our own

initiative. Counsel can be competent to provide an affidavit in support of a motion for

summary judgment, e.g., Sitts v. United States, 811 F.2d 736, 741-42 (2d Cir. 1987),

the city’s attorney attested that she personally conducted a thorough and diligent

search of the records of the police department, and it was not plainly erroneous for the

district court to presume that the attorney for the city was familiar with the city’s

police files. Cf. In re Apex Exp. Corp., 190 F.3d 624, 635 (4th Cir. 1999) (“We have

held in the Rule 56(e) context that ordinarily, officers would have personal knowledge

of the acts of their corporations.”) (internal quotation omitted); Lockwood v. Wolf

Corp., 629 F.2d 603, 611 (9th Cir. 1980) (holding that where “the attorney negotiated

the settlement and handled all the related transactions,” it was “reasonable to assume

that he had personal knowledge” of whether payment was received by his client).

The judgment is affirmed. See 8th Cir. R. 47B.

SHEPHERD, Circuit Judge, dissenting.

I respectfully dissent. A district court may not, for the sake of expediency,

undermine the mandatory requirements of the Federal Rules of Civil Procedure by

relying on an affidavit that is insufficient. For the reasons explained below, I would

reverse the grant of summary judgment and remand to the district court. In this

matter, Moore alleged that the Fargo Police Department possessed certain records
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about DNA evidence collected in his criminal case, and Moore sought an injunction

requiring the City of Fargo to turn over those records to him. The City maintained

that it had turned over all DNA-related reports pertaining to Moore. 

In an effort to expedite the case, the district court directed the City to “check

again to see whether it has any other DNA-related documents,” and “[i]f the City has

no further documents, the City Attorney shall so certify that no other documents have

been found after a thorough and diligent search in an affidavit to be filed with the

court and the court will treat the affidavit as the City’s response to Moore’s summary

judgment motion . . . .” 

In response to this order, Stacey E. Tjon, who claimed to be “the attorney of

record in the case,” stated that she “thoroughly and diligently searched any and all

files related to Mr. Moore in the custody and control of the Fargo Police Department.”

The district court granted summary judgment in favor of the City based on counsel’s

affidavit. 

Federal Rule of Civil Procedure 56(e) requires that an affidavit filed in support

of, or in opposition to, a motion for summary judgment “be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the

affiant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(e)(1). While

it may ultimately be determined that Moore lacks a meritorious claim, the district

court erred in relying on an insufficient affidavit to grant summary judgment in favor

of the City. 

First, there may be certain circumstances where counsel is the appropriate

affiant, see Sitts v. United States, 811 F.2d 736, 741-42 (2d Cir. 1987) (recognizing

the “rule that attorney’s affidavit alone is insufficient to support a motion for summary

judgment,” but allowing such affidavit where “the material fact upon which

the . . . summary judgment motion was premised was a procedural fact that was within
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the personal knowledge of the attorney”); Lockwood v. Wolf Corp., 629 F.2d 603,

611 (9th Cir. 1980) (finding attorney had sufficient personal knowledge of whether

payment was received where “the attorney negotiated the settlement and handled all

the related transactions”), but I agree with the Seventh Circuit that “it is a tactic

fraught with peril” and that counsel’s affidavit must still meet the requirements of

Rule 56(e), see Friedel v. City of Madison, 832 F.2d 965, 969-70 (7th Cir. 1987). By

accepting counsel’s affidavit, the district court transferred the obligations of the

defendant to the defendant’s counsel, who is not a party in this action. Whether the

police department records contain certain criminal reports is not the type of

information that would normally be within the personal knowledge of counsel who

represents the City on civil matters, and merely reviewing those records without an

understanding of the how the records are maintained will not vest an attorney with the

requisite personal knowledge. See Wellhouse v. Tomlinson, 197 F. Supp. 739, 739-40

n.2 (S.D. Fla. 1961) (rejecting affidavit submitted by Justice Department attorney that

was prepared “upon knowledge and information gained from examination of the files

of the Internal Revenue Service” as the affidavit was not made on personal knowledge

of the affiant and did not demonstrate the competency of the affiant to testify to the

facts of the affidavit). To support its motion for summary judgment, the City should

have submitted an affidavit from the city official responsible for maintaining the

relevant records. 

Second, the affidavit lacked any facts that would be admissible in evidence. In

the affidavit, counsel swore that she conducted a thorough and diligent search but did

not provide any facts from which the district court could confirm that the search was

either thorough or diligent. See Toro Co. v. Krouse, Kern & Co., 644 F. Supp. 986,

989 (N.D. Ind. 1986) (“Rule 56(e) clearly indicates that facts stated in an affidavit

must do more than state legal conclusions or even ultimate facts. Rather, to be

considered in connection with a motion for summary judgment, facts must be stated

with specificity, both to bolster their reliability and avoid the drawing of legal

conclusions by persons other than those trained to do so.”). 
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Third, the affidavit did not indicate the level of access counsel was provided to

the records of the Fargo Police Department. Thus, the court was unable to determine

counsel’s competency to testify that those records do not contain any additional DNArelated reports pertaining to Moore. 

Finally, the affidavit did not appear to meet the requirement set forth in the

court’s order that it be made by the City Attorney. Ms. Tjon averred only that she is

counsel for the City, not that she is the City Attorney. 

The affidavit from the city’s counsel in this civil matter was insufficient, and

I would reverse the grant of summary judgment and remand the matter to the district

court. Accordingly, I dissent.

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