1It appears that the plaintiffs sued Clark in both his

individual and official capacities and also sued the Town of

Windham. An official capacity suit is a suit against the

governmental entity, the town in this case. Kentucky v. Graham,

473 U.S. 159, 165-66 (1985). Therefore, the defendants are

Clark, in his individual capacity, and the Town of Windham.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Michael and Marisol MacDonald

v. Civil No. 06-cv-245-JD

Daniel Clark, et al.

O R D E R

The plaintiffs' claims in this case arise from dysfunctional

family relationships that deteriorated into disputes involving

the police. Michael and Marisol MacDonald allege that Marisol's

former husband, Randy Guilbault, conspired with Daniel Clark, a

police officer in Windham, New Hampshire, to have Michael

MacDonald arrested on false charges. The defendants, Clark and

the Town of Windham, moved for summary judgment.1 The MacDonalds

move to strike eleven assertions of fact and certain exhibits

submitted by the defendants in support of their motion for

summary judgment.

Case 1:06-cv-00245-JD Document 47 Filed 10/29/07 Page 1 of 7
2

Discussion

The MacDonalds contend that the challenged statements are

not supported by admissible evidence and that the challenged

exhibits are inadmissible and, therefore, cannot be considered in

support of the defendants' motion. The defendants, Clark and the

town, argue that the motion to strike is untimely. In addition,

they contend that their factual assertions are accurate and

properly supported and that the challenged evidence is

admissible.

A. Timeliness

Ordinarily, a motion to strike must be filed within ten days

after service of the challenged motion or objection. LR 7.2(c). 

In this case, however, the MacDonalds filed an assented to motion

for leave to file their motion to strike more than ten days after

the motion for summary judgment was served. The MacDonalds'

motion for leave was granted on October 9, 2007. Therefore, the

motion to strike was not untimely.

B. Factual Support for Motion

A memorandum in support of summary judgment "shall

incorporate a short and concise statement of material facts,

supported by appropriate record citations, and to which the

Case 1:06-cv-00245-JD Document 47 Filed 10/29/07 Page 2 of 7
3

moving party contends there is no genuine issue to be tried." LR

7.2(b)(1). To support the factual statement, the moving party

must submit an affidavit or affidavits "made on personal

knowledge" and setting forth "such facts as would be admissible

in evidence." Fed. R. Civ. P. 56(e). Affidavits may be

supplemented with deposition excerpts, answers to

interrogatories, and sworn or certified copies of documents or

other papers referred to in an affidavit. Id.

1. Challenged exhibits.

The court notes that the MacDonalds first move to strike

specific statements and then move to strike entire exhibits

submitted by the defendants to support the statements. If the

document were excluded, the statement necessarily would be

unsupported. Therefore, the motion to strike the exhibits is

considered first. 

The MacDonalds move to strike the following exhibits that

were filed in support of the defendants' motion for summary

judgment: (1) Windham police reports and the statements included

within the reports (Exhibits B and E), (2) excerpts from the

transcript from MacDonald's criminal trial (Exhibit H), (3)

Guilbault's statement (Exhibit B), (4) Patricia Petron's

statement (Exhibit B). The MacDonalds assert that "such evidence

Case 1:06-cv-00245-JD Document 47 Filed 10/29/07 Page 3 of 7
2For example, the defendants did not provide an affidavit or

any authentication whatsoever to support the documents submitted

in support of summary judgment, but the MacDonalds failed to

object on that basis. See Perez v. Volvo Car Corp., 247 F.3d

303, 314-15 (1st Cir. 2001). Similarly, statements included in

an investigative report may be hearsay. See United States v.

Tajeddini, 945 F.3d 458, 464-65 (1st Cir. 1991). The MacDonalds,

however, must do more than merely raise a possible issue. 

4

constitutes inadmissible hearsay and . . . statements set forth

therein constitute impermissible totem pole hearsay." Mot. at 8.

Although the MacDonalds are represented by counsel, they

merely state, in one paragraph, that the cited exhibits are

inadmissible hearsay and that inadmissible evidence cannot

support a motion for summary judgment. They make no developed

argument that the challenged evidence is inadmissible hearsay and

cite no cases or other authority to support their assertions.2

They also do not point out specific statements that are

inadmissible "totem pole" hearsay. In the absence of developed

argument to support that part of their motion, it is denied. See

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260

(1st Cir. 1999) ("The district court is free to disregard

arguments that are not adequately developed."). 

2. Challenged factual statements.

The MacDonalds also challenge certain factual statements in

the defendants' memorandum in support of their motion for summary

Case 1:06-cv-00245-JD Document 47 Filed 10/29/07 Page 4 of 7
5

judgment as lacking record support. The defendants argue that in

some instances the cited portions of the record support their

statements and in other instances that other parts of the record

are supportive.

The defendants do not dispute that the specific evidence

cited to support their statement that Guilbault called the police

because Michael MacDonald would not stop videotaping him was not

included in the record. They also do not dispute that they

failed to cite to record evidence to support their statement that

Clark was trained at the police academy and that the evidence

they cited does not directly support the statement that Clark

first met Guilbault at a certain time. The defendants point to

other record evidence to support the reasons Guilbault called the

police and when Clark met Guilbault, and they offer new evidence

to show that Clark attended the police academy. Because those

statements were not properly supported as presented in the

memorandum, they are stricken.

The challenged statements at paragraphs B, C, D, and E of

the MacDonalds' motion are supported by the record citations. 

The challenged statement at paragraph F is not part of the

factual statement and is properly supported in the factual

statement. Therefore, the motion is denied as to those

statements.

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The statement about Guilbault calling the Petron household

to ask directions is not supported by the record citations. 

Therefore, it is stricken.

The MacDonalds challenge as hearsay two statements about

Clark's interaction with Guilbault that are based on Clark's

testimony at Michael MacDonald's criminal trial. The defendants

respond that the MacDonalds are relying on the same testimony to

support their claims and that their reference was merely to

clarify the meaning of the testimony. The defendants also

assert, in a perfunctory manner, that exceptions to the hearsay

rule would apply in this context.

The parties appear to agree that under ordinary

circumstances prior testimony that is offered for its truth is

inadmissible hearsay. See, e.g., Crawford v. Washington, 541

U.S. 36, 68 (2004). Although the defendants cite several

exceptions to the hearsay rule, they make no effort to apply them

to the circumstances of this case. Therefore, the challenged

factual statements that depend on Clark's prior testimony are

stricken. 

Case 1:06-cv-00245-JD Document 47 Filed 10/29/07 Page 6 of 7
7

Conclusion

For the foregoing reasons, the plaintiffs' motion to strike

(document no. 41) is granted in part and denied in part as is

more fully explained in this order.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 29, 2007

cc: Steven A. Bolton, Esquire

Brian J.S. Cullen, Esquire

Benjamin L. Falkner, Esquire

Donald E. Gardner, Esquire

Paul J. Klehm, Esquire

James B. Krasnoo, Esquire

Danielle Leah Pacik, Esquire

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