1The 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

Town of Windham, Daniel Clark,

and Randy Guilbault

O R D E R

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 moved for summary

judgment.1 The MacDonalds move to strike two statements in the

defendants' reply to their objection to summary judgment.

Background

Marisol MacDonald was engaged in an ongoing custody dispute

with her former husband, Randy Guilbault, in 2004. During the

summer of 2004, the MacDonalds videotaped certain events

involving Guilbault, which occurred during exchanges of the

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Guilbault children for visitation and interaction between

Guilbault and the MacDonalds at the children's baseball games. 

Those events often involved officers from the Windham police. 

One section of the video shows the parties at a baseball game on

July 8, 2004. The events on that date led to Michael MacDonald's

arrest on August 1, 2004.

 The defendants obtained a DVD of the video footage from the

MacDonalds and submitted it as an exhibit in support of their

motion for summary judgment. The defendants refer to the DVD in

support of their motion, and the plaintiffs refer to it in

support of their objection. In their reply to the plaintiffs'

objection, the defendants state that when Clark arrived at the

baseball field on July 8 he was aware of the history between the

MacDonalds and Guilbault and he saw "as evidenced in the video

provided by Mr. MacDonald, . . . a clearly agitated and

aggressive Michael MacDonald." Reply at 2. In a footnote, the

defendants explained: "Notably, this DVD was produced by

MacDonald. Even a casual observer, and certainly the jury, will

be able to conclude that this DVD has been edited by MacDonald

for his own purposes. It is significant that even as edited, it

provides a glimpse of MacDonald's boorish behavior." Reply at 2,

n.2. Later in the reply when describing MacDonald's manner

during the July 8 incident, the defendants state: "Fortunately,

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the Court, too, can observe that manner even in the apparently

edited video supplied by MacDonald himself." Reply at 4.

Discussion

The MacDonalds move to strike the statements in the

defendants' reply about editing the videotape on the grounds that

those statements are not supported by record citations, are

contradicted by Michael MacDonald's deposition testimony, and are

not supported by expert opinion. The defendants object to the

motion, arguing that the issue of editing the videotape is not

material to the issue of probable cause for MacDonald's arrest. 

The defendants also contend that expert opinion is not necessary

on the issue of whether the videotape was edited, because the

editing is apparent to a lay person.

 A motion to strike addresses "redundant, immaterial,

impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). In

addition, to support a motion for summary judgment, 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.

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The defendants acknowledge that their implication that

Michael MacDonald edited the videotape is immaterial to the

motion for summary judgment. Therefore, under Rule 12(f), the

parts of the challenged statements that refer to editing are

stricken as immaterial. The court need not consider the

alternative argument that expert testimony is necessary to

support such statements.

Conclusion

For the foregoing reasons, the plaintiffs' motion to strike

(document no. 45) is granted to the extent it seeks to exclude an

implication in two statements made in the defendants' reply to

the plaintiffs' objection to summary judgment that the videotape

made by Michael MacDonald was edited.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

November 9, 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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