Northern District of Texas Blog

On August 23, 2013, Judge Lindsay issued a 50 page opinion (available here) in the Bank of America case, which granted Bank of America’s motion for summary judgment. Notable aspects of Judge Lindsay’s include the following:

Unsworn Expert Reports. “Ms. Taylor’s expert reports are signed and dated; however, they are not sworn or made under penalty of perjury. Thus, notwithstanding Ms. Taylor’s one-page declaration, the court agrees with BANA that Ms. Taylor’s reports fall outside the scope of competent summary judgment-type evidence. See Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 1000 (5th Cir. 2001) (‘Unsworn expert reports . . . do not qualify as affidavits or otherwise admissible evidence for [the] purpose of Rule 56, and may be disregarded by the court when ruling on a motion for summary judgment.’). Ms. Taylor’s declaration filed in conjunction with the reports does not cure this deficiency because it merely states that her statements in the declaration are ‘true and correct’ and made ‘under penalty of perjury.’ Pl.’s App. 2-3. As to the expert reports, Ms. Taylor’s declaration states only that they are ‘true and correct copies.’ Id. Thus, unlike the statements in her declaration, the statements in Ms. Taylor’s expert reports are unsworn and were not made under penalty of perjury.”

Expert Testimony Regarding Law. “Ms. Taylor’s opinions regarding the law that governs this case and the application of New York law, the statute of frauds, and the LSTA are also improper, as these are questions of law for the court to decide.”

Reliable Principles. “[T]he expert reports of Ms. Taylor are inadmissible because they do not meet the predicate requirements of Rule 702. Nowhere in Ms. Taylor’s declaration or either of the expert reports is there any statement that her testimony is the product of reliable principles and methods or that she has applied the principles and methods reliably to the particular facts to this case. Likewise, nothing in the reports or declaration indicates that an expert in Ms. Taylor’s field would reasonably rely on the type of facts or data set forth in her reports.”

Notice of Supplemental Authority. “Local Civil Rule 56.7 provides: ‘Except for the motions, responses, replies, briefs, and appendixes required by these rules, a party may not, without the permission of the presiding judge, file supplemental pleadings, briefs, authorities, or evidence.’ The court generally discourages attempts to file supplemental authorities if the authorities were previously available when a party submitted its motion, response, or reply brief. When supplemental authority issues after briefing is complete, however, the court will generally permit a party to file a notice of supplemental authority without seeking formal leave of court. Moreover, Rule 56.7 does not require as a prerequisite that ‘good cause’ be shown for the requested supplement; rather, whether a party will be permitted to supplement is entirely within the presiding judge’s discretion. As [Plaintiff] notes, the case cited by BANA follows and applies reasoning similar to that previously applied by the Second Circuit in other cases. For this reason and because BANA’s one-page Notice of Supplemental Authority merely attached the opinion without making any arguments as to its relevance or import, the court concludes that [Plaintiff] will not suffer any legal prejudice by the court’s consideration of the case. The court will therefore deny Plaintiff’s Motion to Strike Notice of Supplemental Authority in Support of Defendant’s Motion for Summary Judgment.”